Amicus Curiae Brief — Harrington v. California

Supreme Court brief1969

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| “a1 PREME_COURT. US =

Ps “\ Ne ‘, “8

; LM ay “APR 2. 1969 |

* agree Gens e ‘the 3 b Stat CLERK |

—— 4988,

ls No. 1 750 ae eee ea

| Guzxn Marri “Hasxixorox, | 4 Pe fe :

~ Petitioner, °° 7.

against ‘

Tae: PEOPLE OF THE STATE OF? Cauapentish;

yO LMT

On: Werr or CERTIORARI TO THE Court OF APPEAL -

- OF CaLrroRnta, Szonp APPELLATE Dussseos Fr)

—=—

“| BRIEF OF THE STATE OF NEW YORK JOINED BY THE

"STATES OF ARIZONA, ARKANSAS, COLORADO, CON-

NECTICUT, « “DELAWARE, KENTUCKY, .MINNESOTA, -

a MONTANA, NEW: MEXICO, NORTH CAROLINA, SOUT H

a SOUTH DAKOTA, UTAH, VIRGINIA. sages |

- WASHINGTON,

AS AMICI Cc JRIAE -

SaMvEL Ps Himsnowrrz

Lours J. LeEFKOwITz ©

_ Attorney General of the

‘ +. State of New York |

Amicus Curiae ;

Office &.P..0. “Address

- 80. Centre Streét 3

New York, — York 10013

1 3 ‘ . . - HI

Respondent. ae & s

>»

ee Fe

First Assistant eipeieies General

Amy. J UVILER

Brenva So.orr

_ Assistant Attorneys General

_ of Counsel . °

]

<i 249 Press of Fremont Payne, Inc.,

80 Washington St., N. Y.—BOwling Green 9-8153

. eet X

is ee | =

‘i

Interest ‘of Amict

Question Drovionited | Sh5% ws eat ~

Weee sees ees essere eeee

" Asioencrer—Clain alleged to arise ‘under. ‘Howton y.

“United States, 391 U. S. 123 and'Roberts ¥. Rus- s

sell, 392 U. S; 293, should be judged by a standard “

Tequiripg a determination that the introduction

of a co-defendant’s confession created a substan-

‘tial risk of prejudice and not by a per se rule \

that the introduction of such a confession auto-

" matically vitiates the conviction ........... or

& : ie t viet

Coticlusion ah eee se ealeceeeeeenetenes ery eee:

Lene vd TBE OF Avrnosrrizs Crrep

| Cases: - |

Barton v. United States, 263 ¥. 2d 894 (5th Gir, 1859)

Bloom v. Illinois, 391 U. S. 194

ES St ay ~ 8 17

- Brown v. United States, 375 F. 2d °310 (D. se Gir. :

"» 1967), cert. denied 388 U.S. 915 .....---eeerees 14

ee United States, 391 U. S. 123 . 1, 2;3, 4; 5, 6, 7, 7,89,

; snide 10,11, 12, 13, 14, 15,

16, 18, 19, 20, 21,22 -

f * Oalipioin United States, 399 F. 24 1006 (D. C. Cir. :

<9 1908) 5.3%. Mepis aati td ste bans Sind tei ay dae wee 2

Chapman v. Califor, 386. s. a vaveine is watches A a

Dale 231 F. 2a 123 (ist Cir. 1956),

cert. denied 351 8. - seu bkigen tas nese 14

ii” - é : on ?, ABLE oF CONTENTS _ -

tt ¢ 5 % » ; ae 4 . ie Ni

M Sci": | ae PAGE \

é Daier ¥ ‘United. States, 189 ¥. 2a 343 Oth Cir.

1951) wrihipetteecseseeresereeeeeet ee “18 21. *

Fe Deli aoli v. United States, 352 U. 8. 282. 1,4,5,6,9, |

ty Maes Wie Rees, “eerebeneameis ee ‘40,19, 13, 29

” biden Bnited States, — VU. 8. —: (No. 12 Octo- -

» ber Perm, 1968, dec’d’ March 24, 1969), 37 L. W.

DeStefano x. Woody, 392-U. of eat. ‘pega pea

Escobedo v. Minois, 378 U: 8. . i, Ca

| Golliher V. United-States, 862 ¥. 2d 594 (Beh Cir. 1986) 16 D

bo Griffin v. California, 380 U. S. 609 .... 00-0... 2-H,

Kee New: York, i §, S. —— (No. 62 October

‘Term, 1968,\deo’d March 24, 1969), 37 L. W. 4236.8

| Katey. United Stalts, 8998.97 -....cieccececee 8:

Lee v. Florida, 392 U. 8: Pe he @

" Linkletter v. Walker, 381.U. 8.618 leet. 8

_ Mapp v. Child, HIG. BOB. 205400. vores nn ogo ane: OMT

Miranda v. Arizona, 384 U. 8. 436 kniaae pideaenenl t

ne,

“ESD \

» 4225 sen peeeet esting tte ose dee see wecceee “eocoeeoe’ » 8

Duncan. Louisiana, 391 U. be bi caaa-wt 8,17

“Evans v. United States, 375 F. 2855 (eth Cir, 1967) 6

’ Fiswick v. United States, 329 U.8.211....%...0.,Sbe a ft

Puller v.'Alaska, 393 U. 8. 80 ggpust ee

Gilbert v. California, $88 U. 8. 268 #5775. 5, 8, 10; 12,17 |

ited States, 369 F. as ate (sth Cin, fi’

SF ae™

é *-)

; » 7 ona 6 e

| (Nash. United States, 54 F. 24 1006 (24 Cir. 1932) ..9,15,22 - -

. Nelson v. United States, 397 F. 2d 814 (9th Cir. 1968), .

cert. denied, March 24, 1969 (0, 'T.-1968; No. - .

1095 Mise.), 37 L. W. 3356 ...6.0-2+ereeeeeeees 20

- Olivas v: Eyman, 4. 2d 942 om: Ct Aria, im band,

.. Oliver v. United States, 335 F. 2d 724 (D.. Cc Cire 1964) 19

Pao menppoeeta i

People-v-“Aranda, 4'

People v. Baker, 23°N. Y. 24 307 (1968) ......::3, 10, a

ae _—People.v. Balatnicov, et al., N.Y-L.J. Jan. 28, 1969, p.

<> . col. 4 (N. ¥. Co. Sup. OB ics hossiows wes

Sy Peoplé v. Bastoné,30 A. D, 2d 828 (2d Dept: 1968)... 3

“7 People v. Boone, 22 N. Y: 2d 76 (1968) eS are 78

People v. Bosby, 64 Cal. Rptr. 159 (Sup. Ct. Cal. 1967). :

| People v. ‘Burwell, 30 A..D..2d 842 (2d Dept. 1968). “8,21

‘ People v. Campbell, —— A. D. 24 —— (2dDept. dec’d —

March 26, 1969), N.Y.L.J. March 27, 1969, p. 16, |

col. 7 ‘de wie GN bc ec a eee ae Dap een “8

People Vv: Cagarilo, 266 Cal. Agp. ard 266, 72 Cal.

: | Rptr, 296 (1968) ....---eeeeeerebeeseeseeeees 17, 20

; -. People,v. Cassidy, 30 A. D, 2d 795 (ist Dept. 1968)... 3

oes People v. ‘Cefaro, 23 N. Y. 2d 283, (1968) . ey 2S

| ‘we Peoplew, Dusablon, 16 N. ¥. 249 (1965) fp Se Pee: ee

ee People v. Dusablon (Sup. Ct. N. Y: Co, decided Feb. ;

~ 20, 1969), N.Y.L.S. 2/2/69, p. 17yeol..4...--+5-% +. Ll

People-v. Jackson, 22 N. Y. 24 446 (1968) <..u..0--. 2 8

| ites McKendall, A. D. 2d 717 (3d Dept.: 1968) 3

! Re tera ’ uA

ees es ee

’ = : : . Pade -

es Posslé'y. ‘Miréndé, — 1 ¥. onc | vol. 30 No, 16 |

., % . | L, Rep. New# January 29, 1969 (N. ¥, Ct App. |

paras dee’d January 9, | APE DRE SER i Se

. | People ¥, Pilon, 20. D 24365 (3 Dep. 1068) 3

~~ Pebple v. Pohl, 23 N: Y. 2d 290 (1968) -........ Yer +“ be

_, People.v. Vitagliano, és'0, YM 900 (1900). 19.

. ” People v. Weis, 30A. D. 24877 (2d Dept. 1968) ...... 329%

tr People ¥.Willis, 30 A. D. 2d 817 (2d Dept. 1968) ....18,21 .

~~ Roberts.v. Russell, 392 U.S.'298...... ...1,2, 4,5, ie 10,14

/Sagansky v A United States, 858 F. 2d ce (1st ir. _"

Tt OW saab be eae is eck scan sche fontee owes “Id

| Santoro v. United States, 402 F. 24 920 (9th, Cir. 1968) 21

' Stovall v. Denno, 388 U.S. 298 ....6. 0... eee eee +, .5, 8, 10 se

_‘Tehen v. Shot, 382 U. S406 «.. 2... se eee ee. wars.

- __+ United States v. eg: se he bebe 146 ¢E. P: Pa.” i ate

“1S AMR SS. 22 ARE ides cma |

| United States v. Bozea, 365 F. 2a 206 (2a Ci. 1966)... oe ree

17, 18,19 . y

United. Stites v. Bujese, 495 F. od 888 (2d Cir. 1969) 2)

United States v. Crisona, 271 F. Supp. 150 (SDNY. 6

oe ON ee es aes ag Nec ppivserenes 14.

me? United States v. Delli Padli, 229 F. 24 319 (2d Cir. Jie

1 OF NB) sonuiion shetbacings sn econ arse oo} 9, 18, 19

ge United States. v. Gottfried; F. 24 360 (24 Cir. :

as 1948) ; cert. denied 333 U.S. 860 ..... bevsesteoes aa >.

Cae United. States v. Haupt, 136 F. 24 661, (7th (ir. -

eagte 1943)... 222s seee. ie txt I vad ave cnds ey er io, B15

United States v. Hoffa, 402 F. 2d 380 (7th Cir. 1968) . .19, 22

“

¥E) ant 5s Pets re ead +f 2 ae “e 4s 5 Be ~ 5 ,

- Kae x * . Pale . 4 nes ‘t Fol

tS ‘ B2 ate: mg eres ar

$3 3 +. , . * P. na . eo : | “PAGE Z _

Dnited State v fats v dons, a 2d 851 (240i era ce

24, 1969 (0. T. ited is |

| Mise), 37 Le W. $956 «2s iceies Keres BO. \2

_ United States v. Kahaner, oo F. pe 78 (SDNY. te eiag

MORK Sackeese. Do ap hn Feetin tao 13, #4, 15, a 7

| United States-v. Smith, 209 F. Supp. 907, (i. D. 1

m ee .”) merereerretons Crerertrrr terete 13, 14, 17 Z

_ United States v. Steel, 38 F.RD. 421- (SD.N.Y.1965) 14 °

” United States v. ‘Wade; 388 U. 8. 218 ...... vee ceegely ®t s

United States ex rel. Catanzaro v.. Mancusi, 404 F. 2d-~

296 (2d Cir. 1968) ..:/......++4 ps ba tock C 20

United States ex rel. Floyd v. Wilkins, 367 F. 2d 900

- (2B Cit 1908) 1.2.8.0 i Ne cng Yo oth eveens das 0:

’ United States ex. rel. Hill v. Deegan , 268 F. Supp.580 |

* (SDNY, 1967). «i500 ose venh see phen 568 MB, 19, 22°

United States ex rel. react Sissi: 399 F, 2d 508 se aes

(3d-Cir. 1968) «52.5... eetbeseeegeveneeeerge: |.

United States ex “eal. ‘Jécea Ce LaVallee ys DN.Y.

oLew D. J., decided: 12/24/68) app. pending 2d ~s

Cir., Docket No. 32950 “TH a Tek ee asteccedne <P

United States ex rel. LaBelle’ v, Mancusi, 404 F. 2d 690 eS

(28 Che; 1908) 85 655552800 ys cose gabedsce'ne g, 19

Wapnick v. United States, Jing 24 -— (2d Cir.

. dee’d February. 11, 1969), SL Sk. Op. No. 292,

‘Sept. Term, 1968, p. MT 635368 est hen Kodeined 19

_ Williamson v. United States, 310 F. a 19 (90, Ge ar

TONE spe veces eAerebeerteee mie eae 14, 20, 22 Z

Z ‘Statute: oa. ; 1° ; yee : oe. . /

os ey Eee | ——,

: - Rule 14, Federal Rules of Criminal Procedure... ,,——s14

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“

In -THE

Court of the ited State

OCTOBER TERM, 1968

OB.

L. ae Re. 700,

att .

Ppa eee |

. : Petitioner,

eas: ‘against Ripa heer Che

THe ae OF THE Stare OF CaLiFoRNiA, ~

Wr a, j Reopdkdent. eas

On Warr OF Cunrionant To THE CouRT -oF- AppraL——

OF Canty, Szconp APPELLATE DisraicT

a AS ae

" . oe

a = “

BRIEF OF THE STATE OF NEW YORK JOINED BY THE

STATES OF ARIZONA, ARKANSAS, GOLORADO, CON-

NECTICUT, DELAWARE, KENTUCKY; MINNESOTA,

MONTANA, NEW MEXICO, NORTH CAROLINA, SOUTH

CAROLINA, SOUTH DAKOTA, UTAH, VIRGINIA AND -

he:

sears aire: AS — repos on

' * Interest of Amici = 5?

‘This case presents the Court with its first opportunity ©

to discuss the scope of its decisions of last term in Bruton |

v. United States, 391. U.S. 123 and ‘Roberte_v. Russell,

_ 892 U.S. 293. In overruling Delli Paoli v. Unik States,

applicable to the states, these cases have affected a sub-

stantial: number of. past convictions -_ pending trials

"discusses ‘the. facts. in’ this particular case which demon-

strate that petitioner’s conviction was not unconstitutional

and we therefore join in that brief, adopt its arguments. ‘

ane,

2 me : ‘ ae

: all. over the United States aed, thius, have a he effect.

on the Adminfetretion of - * aor in every oper in -

the country.

-The brief of the California ee General hiscughay

and support its“position. The purpose of this brief i is to’

. ‘discuss thé scope of é rule enunciated in Bruton and the

-. Judicial standards to employed i in enforcing it: ie

--- The California Att jorney . General urges this Cou to -

: cial harmless error rele fe Bruton cases. - Since ‘the

ecision below rests Tests on & holding of harm] ess error under

‘ state: law, .California “has—a: special concern” Wwith-the_ap-

. plicability. of ‘Chapman-y--€alifornia, 386 U. S. 18. It is

our position that the appropriate standard to determine

whether there has: been a violation of a defendant’s right

_ toa fair trial is whether there is a substantial risk of preju-

dice created by the introduction of a confession at a joint

_trial. ‘ Sinee ‘that standard requi

a weighing of all the

aspects of the trial before error is und j in the first place,

‘the harmless error ‘standard yond . not usnally be perti-—

nent.* However, if this C ‘holds that Bruton creates

@ per se rule prohi ee joxnt trials where confessions are

_ introduced, it ce should not — a where the »

- -.error did not ha the other defen oh :

In any event, . the argument in the Californi biket’s re-

lating to harmless error also supports a due rocess inter-

pretation of Bruton and Roberts.

The California Attoriéy Genefal also argues that this

Court should reconsider its decision in ‘Roberts v. Russell

‘to the extent that ‘it holds Bruton retro ive. :We join

* tiowever, if a trial Court wete ‘to err‘in asse sing the potential

'_.° tisk of prejudice and denying’a severance, an Appellate Court might

find{that, sander the: particedar facts at trial, the risk did not develop

and thus the etror was harmless. . /

24, of

/ |

“\

rye

in that request sad adopt the brief of, the California

Attorney General on this issue,

a The interest of the Attorney Genera! of the State of ;

New York is substantial. As chief legal officer of the

State of New York (New York Executive Law § 63), he’

is charged with maintaining a fair balance between ef-

fective law enforcement ‘to protect society against crime

and observance of due process in the administrgtion of Je

justice. As a prosecuting officer in specified areas of

criminal conduct, ‘and as an advisor to the District Attor- .

neys and to the judicial officers "itis. ‘State, the Attorney.

General is concerned with the huge volume of cyimninal -

eases handled by the New York courts and with the. fact

that a gr&it many cases will be affected by this Court’s

decision regarding the scope of Bruton.® , >

-In “addition, the New York ‘Attorney General, as coun-

sel to.the officers of the state correctional institutions who

are named as respondents in habeas corpus proceedings,é

- is concerned with the seriously disruptive effects ipon the -

administration of justice which would thevitably flow from

a recnneuvely applied broad condemnation of — tab.

‘

| * At Feast 16 New York corivictions. have senile been ‘reversed

' anid retrials-ordered because of Bruton, to wit: > iy ae

People v. Mirenda, —— N.Y: "2d ——, vol: 30 No. 16 L. Rep.

News January 29, 1969: (N. Y. Ct. “App. dec’d. January 9, ee

People v. Baker, 23 N. Y. 2d 307 (1968) ; People v.‘ Pohl, 23. N.Y

.- 2d 290: (1968) ; People v. Cefaro, 23 N. Y.. .2d 283 (1968) ; People :

wv. Jackson, 22 N. Y. 2d 446 (1968) ; People v. “Boone, 22 N. Y. 2d te

76 (1968) ; People. v. Campbell, —— App.> Div. 2d (2d Dept., ¥

decided, March 26; 1969) N.Y.L.J., March 27,°1969 p>.16,‘col. 7; °

People v: Weis, 30 A. D. 2d 877 (2d Dept. 1968) ; People: v. Bur-

well, 30 A. D. 2d 842 (2d Rept. 1968) ; Prople v. Bastone,; 30. A. D. :

; Bee 1968} : People v. Cassidy, 30 A. D. 2d 795 (ist>

968); People v, ‘Mc*<endall, 30 A. "D. 2d 717, (3rd Dept.

People v. Pilon, %# o... 0. 23 365 (3rd Dept. 1968) ; People

a: - Balatnicov, et-al., NY.LJ., 1/28 p. S12, col.,4 (N. Y. Co.

Sup. Ct.) ; United ‘States ex rel. LaBelle v. Mancusi, 404 F. 2d

690 (2d Cir. 1968); United States ex rel: Joseph w. LaVallee 2

(N. NY. Forry, D.J.) dec’d oe 24, ey) abbeal pending

_ 2d Gir., Docket No. 32950. ce

. °

@ yee .

e © .

Se Pee kere ee Beira Het sie

Rn ee en

. The other Attorneys Seu sadeaceltibeas are charged

. \- With:similar duties and are equally concerned. Mindful

- 4 of ‘the importance of this issue to the administration of

2° justice in. every state, the states of Arizona, Arkansas,

: Colorado, Connecticut, Delaware, Kentucky, Minnesota,

Montana, New Mexico, North Carolina, South Carolina,

South, Dakota, Utah, Virginia and Washington join the

_ State of New-York in presenting their position in this: brief

amici curvae filed with the Court sara to me 42.

ao ’ ” Qiteiton tecinal o

What is the standard for assessing claims alleged to |

- arise under the decisions of\this Court in Bruton y. United

States, 391-U. S. 123 and Roberts v. Russell, 392 U. S. 293%

ARGUMENT

. Claims alleged to arise under Bmton v. United

States, 391 U. S. 123 and Roberts v. Russell, 392 U. S.

293, should be judged’ by a standard requiring a deter- .

mination that the introduction of a co-d endant’s con-

fession createthe substantial risk of pre}udice and not

bya per se rule that the introduction of sir a con-. .

fession automatically vitiates the conviction. — —

- The impact of the deviations” of this Court in Bruton v. —

pede United States;-391 U.S. 123. and ‘Roberts v. Russelt, 392 —

>" U, 8. 298, has been resounding in virtually every federal

| and state court in the country. The overruling of Delli

Paoli v. United, States, 352 U.S. 232, in a holding both ret-

.Toactive and: applicable to the States has required almost

all jurisdictions to reconsider their past joint/trials and.

‘their standard for. severance of future trials. Howevef,

because of the extreme factual pattern of Briton and the —

limited and rigid nature of the rule it. struck down, there —-

are no Lacaraneaas euEen es’ for coping = the welter of S

h <

- defehdant implicated the other defendant.*’ While. some

ie ee

: : 5 ; aah : oe ; i . ‘

factual considerations generated’ by the cases. Accord-

ingly, the instant pecs insofar as it:presents’an oppor- ~

tunity for enunciating those guidelines, is of major import-

‘ance to judicial admintstration. See Johnson v. New -

Jersey, 384 U. 8. 719, 734... \ . Nason ad a!

The basic, standard suggested by Bruton and Roberts

for measuring the fairness of a trial] in which one-co-

defendant’s statement. implicating another was or. may.

_ be introduced is whether such intrédfiction creates a sub-

stantial risk thatythe jury did or would ‘consider the con- ©

fession against the implicated defendant, thus prejudicing

his right’ to a fair trial. The method of. applying this .

standard to present and past cases -will differ, but the

essential conclusion of substantial risk is the same. 7

At the very least, the standard of substantial risk should =|:

be applied to past cases tried before May 20, 1968, the

date of this Court’s decision in Bruton as was.done in

Stovall v. Denno, 388 U. S. 293. To give meaning to the.

right of. confrontation at trial, this Court created the right ©

to counsel at the out-of-court identification in Unitdd States

v. Wade, 388 U. 8. 218 and Gilbert v. California, 388 U. S. -

263. That rule. was not applied to confrontations which

had already occurred unless the. violation was 80 substan- ~*

‘tial as to deprive the defendant of his-right to due process

of law. Stovall v. Denno, supra. Meese ea

Petitioner nevertheless claims that Bruton states a per he

se rule presumably requiring vacation of any. conviction = \

w ver, at trial, a confession from ‘a non-testifying co-,

language in Bruton might support such a rule, the case as

a whole does not and Roberts. v. Russell conclusively lays

the notion to rest. The genesis of Bruton is in Delli Paoli

. * Such a rule would apparently require either, (1}peparate trials; -

_ (2) not introducing the implicating confession; or, where possible, |

_. (3) redactiort of the confession to exclude reference even to the .

-. existence of a coliort. — iI Wiiees We

“eo Dnited States i in which this Court upheld a conviction

2 ones a co-defendant’s confession implicating Delli ©

: been admitted into evidence against the confessor

with’ limiting instructions to that effect, the Court saying |

that it could ‘*fairly proceed on the basis that the jury

followed these instructions’’ (352 U. 8. at 241). Although

Delli Paoli itself did not speak in absolute terms (352 U. 8.

: at 243), its progeny did until, as the Solicter General con-

as ceded in Bruton, the strain became to great (see 592 U. Se

Le at 126).. |

In Briton, the 6-defendant Evans ‘ilieaiad that he and

Bruton had committed an armed robbery. On appeal from

the judgment of conviction it was held that Evans’ confes-

sion had been erroneously admitted against him at trial.

* Apart from’ the cdnfession of Evans, the only evidence

against beth defendants was identification testimony. That

_ evidence as against Bruton was a great deal weaker than:

it had been against Evans. Evans v. United States, 375 F.

‘9d 355 (8th Cir. 1967). ’ Yet on retrial,’ even’Evans was ac-

quitted. In the face of these facts, this Court reversed the

' conviction of Bruton and overruled the ‘‘basic premise’”’

of Del Paols.that the jury must always be presumed to

_ follow limiting instructions of the wort shes in the Briton

ia.

The siimination of one irrefutable. sittin should

° not, however, lead this Court\to substitute another. The —

: effect of Bruton is not to change the standards for measur- st

ing the fairness of a trial, but to radically readjust the = 8 =

weight to be given the cautionary instruction as one factor .

in judging that fairgess. ‘The decision did not hold, that

: such instruction was ‘inévitably -ineffective, let alone re-

quire the rule: urged by petitioner. Thus; the Court stated:

“Not every iom of inadmissible hearsay or other

. devidence can be considered to be reversible error un-

} SAN: SER limiting instructions; instances oc-

‘Aa 8 nN 4 a ‘ 4 ‘ ‘:

cur.in almost | every trial, where inadmissible evidence

_ creeps, in, usually inadvertently, ‘A defendant is en- “’

titled to a fair trial but not a perfect one.’ Lutwak

vy. United States, 344 U. S. 604, 619; see Hopt v.

-" Utah, 120 U. 8. 430; 438; ef, Fed: Rule Crim. Proc. . .

52(a). _Itis not unreasoiiable. to conclude that i in many

sugh éases the j jury can and/will follow the trial judge’s

- instructions to disregard:s information. Neverthe-

less; a8 was recognized in Jackson v. Denno, swpra,

there are some contexts ip. which the risk that the

‘jury will not, or cannot, follow ‘instructions is so

- great, and -the consequences of failure so vital to the °

' “defendant, that the- practical and human limitations

of the jury system cannot be ignored, ‘Compare Hopt.

_v. Utah, supra; Throckmorton v, Holt, 180 U. S. 552,"

567; Mora ¥. United States, 190 9; Holt v.

United States, 94 F. 24-90.° Such a context is pre-

. sented _here;—where the powerfully incriminating

extrajudicial statements of a co-defendant, who stands

accused side-by-side with the defendant, are de- °

liberately-spread before the jury in a joint trial. Not ©

only are the incriminations devastating to the defend- .

ant but their credibility is inevitable suspect,.a fact

4 recognized when accomplices do take’ the stand and the

_ jury is instructed. to weigh their testimony carefully

given the recognized motivation to~shift blame into

' others. The unreliability of such evidence is in- .

tolerably ‘compounded | when the alleged accomplice, as

here, does pot testify and. cannot be - beats Be cross-

examinati Soe

lancing of ‘fact seniteaduile the holding of

own in Roberts y. Russell, supra, _mhere the

That

Bruton {was s

Court, indeed, quoted a part of this pas sage -fepresenting

the Bruton rule (392 U. S. at 294-5) did not refer to

the broad language relied on by’ ‘pébitioner. Moreever, al-

| though the Court ars that the facts i in Roberts paral:

LOA k - ; ;

ahs BTN 3 8 | i

, : c~

the. tects | in. Bruton, it did not require that the writ of

haheas corpus issue but: instead remanded the case to the

District Court ‘‘for further consideration in light of Bruton

¥. United. States, supra.’’ This disposition must indieate -

that there were factors which: could distinguish the cage

‘from Bruton, although that case too, involved the implica-

tion by one defe t of another.

. The very fact t Bruton was s0 poxtinctorily held

retroactive in Roberts v. Russell, demonstrates. that the

rule in Bruton was not of as broad a sgope as petitioner

contends. When this Court sets: strict: rules for criminal

. trials, it has held them not to be'retroactive. See Linkletter

v. Walker, 381 U. &..618 (limiting the effect of Mapp v.

Ohio, 367 U. S. 643}; Tehan v. Shott, 382'U. 8. 406 -(limit- -

ing the effect of Griffin v. California, 380 U. S. 609) ; John-

son v. New Jersey, supra (limiting the effect of Miranda. v.

Arizona, 384 U. 8. 436 and Escobedo v. Illinois, 378 U. 8.

478) Ptovall v. Denno, supra (limiting the effect of United

States v. Wade, supra and Gilbert v. California, supra) ;

DeStefano v. Woods, 392 U. S.. 631 (limiting the effect of

-. Duncan v. Louisiana, 391 U. 8. 145 and Bloom v. Illinois,

391 U. S. 194); Fuller v. Alaska, 393 U. S. 80 (limiting

the effect @f Lee v. Florida, 392 U. ‘98378; Desist v. United

' . States, U.S. —— (#12 Oct. Term 1968, decided March

~ ‘24, 1969) 37 L. W. 4225 and Kaiser v. New York, —— UV. S.

—— (#62 Oct.. Term 1968, decided March 24, 1969) 37

L.. W. 4236 (limiting .the effect of si at ore

| ©3389 U.S. 347).

In Roberts v. "Russell: j it was stated that the practige

prohibited in Bruton seriously impaired the:- ‘integrity of

the fact-finding process. 392 U.S. 293, 294. By compari-

‘ gon, this Court contemporanecusly “found that the failure ,

to. provide a jury trial did not so substantially impair the

integrity of the fact-fix. ing process. DeStefano v. Woods,

-* supra, Thereforé the practice enna of tn er in .

Roberts inust be related to’ an assess of the extreme

facts of: Bruton. | ,

It should also be pointed out that. Bruton must to some

extent involve, not only the constitutional right of con- |

pit

-. frontation, but also the supervisory power of this Court

. over the lower federal courts. This is highlighted by the

. fact that Deili Paoli, also a federal case, dealt with the

question whether or not the conviction should be reversed

in the exercise of supervisory power. Thus, even if this

‘Court ‘were to enunciate a per se rule for, the federal

courts, it would not preclude the more flexible standard

- with respect . to state — of conviction. we have

suggestéd. - aa |

The shepticiann regarding the jury’s ability to follow in- |

“structions evidenced by this Court’s decision in Bruton

“finds its roots in decisions in’ complex federal joint con-

spiracy’ trials involving a conglomeration of conspiracy

and substantive counts unevenly charged-against many c0-

conspirators. Indeed, Judge Learned Hand’s _graphic

_ phrase ‘‘mental gymnastic’ (Nash v. United States, 54

FE. 2d 1006 [2d Cir. 1932]), was meant to apply to such -

— eases (United States v. Delli Paoli, 229 F. 2d 319, 321 [2d

- Cir, 1956]), where instructions must regulate whether each

piece of evidence which directly implicates one defendant -

may or may not be used against each of the others.. Evén

Jud ’s eloquent_dissent in United States v. Delli

Paoli, supra at 323 refers to the special problems of these

complicated federal cases (e.g., United States v. Haupt,: °

136 F. 2d 661 [7th Cir. 1943]), rather than to a joint sub-

stantive crime proseented 1 in the state courts as is ee

here. ‘ 9.

The argument that Bruton has enunciated ‘a per se ;

rule for past, as well as for future, cases and forstate as’

well as for federal, courts is completely untenable, because

such a rule would be unrealisti€é an ‘unnétessary. Obvi-

ously, the impact on the administration. of justice of a

per sé holding would be enormous for several reasons.

Hirst, ulllike the situation in Jactoons v. Denno, 378 Be. S..

. upon similar rulings in many subsequent

Se .

-Gilbert vy. California (1967) ; indeed, it is to be presumed

“that ‘the criticism of the-Bruton ‘decision, since it was. an-

~ 368, new trials ‘wo be held rather iti new beni

ings: Moreover, the number of trials to be held would al-

aout: ‘certainly have to the. number of trials origi-

nally held: In the instant case, for example, the pes. .

titioner’s co-defendants would be entitled to apply for new

trials.. In People v. Baker, supra, six trials may be held in ©

place of the original one. This\ roliferation of new trials.

im the face-of increasing litigation is a strain on

the state courts wineh Reef @ not, gemma prepared to

handle. _ | Bye:

}

Retroactive application of the stringent interpretation of

Bruton proposed by petitioner would have another, more

- disastrous eff overturning of the convictions of count-

less felons, whose }tri in state or federal courts were con-

_ ducted in acco with . _prineiples approved by*this .

Court. There is a curious suggestion in Roberts v. Russell,

that reliance on this Court’s unequivocal;;

pling in Delli

Paoli was unjustified because the decision iti

relied upon. not in the expectation that it would be repu- _

diated. The fact is that in tho ds ‘of

federal judges did reasonably re y upon D !

this Court, including Johnson v. New Jersey (1966) and.

nounced, is no cause for lower courts, defense counsel or

presectto eschew it. bs i (

It is me poe that the direst result of retroactivity

“of a broad interpretation of Bruton would be merely new

trials, not immediate release of dangerous criminals. For

new trfils of old cases. would be impossible in many int

stances, due-to the absence of witnesses and he dulling of.

recollections, And if this Court tales in Jenks v. Dela —

. ware, No. 748, that Miranda v. Arizona, applies upon re-

oe,

' through the

Th ee

Cy Mie

"i te iia alias cides

‘seb ohmat et ie oem :

without their own: confeasions. d

Thus, a broad interpretation of Bruton, rékeogetivelsiag.

plied, could mean the release of such dangerous convicts as

Henry Dusablon and Emanuel Samperi, who recently were

' given a post-conviction hearing i in the Supreme Court, New.

York .County, to. défermine, inter alia, the retroactive ef-

- fect of Bruton upon convictions for first degree mur-

der, enfered in 1963. N.Y.L.J. Feb.21, 1969, p. 17, col. 4. Also

see People v. Dusablon, 16 N. Y. 2d 9 (1965). The evidence

uor store, shot the owner and a ¢lerk

they knelt. on the floor, because, as he

later explained to..the police, “dead men tell no tales.”’

| At the second stage &f the trial, devoted to punishnjant,

a robbery at a

at trial‘ mat fr Dusablon, accompanied by Sarkperi in —

it was shown that these- victims: were among six whom the -.

pair executed during 9 spree of robberies in New York |

City ‘and Massachusetts, killing the witnesses to avoid

identification. -At the trial on the issue of guilt or innocence

each defendant’s full confession to the liquor store kill-

ing, ‘implicating the, other, was introduced. The convictions /

were confirmed by the lower court, on thé ground that

Ye ae less prejudice attached than was fgund in Bruton. A per se.

rule would require reversal of the convictions, and even a

* standard of harmless error beyond a: vreasonable™ doubt «

would jeopardize them. If applied on: the rettials, the de-

is that new ffials should not be required if there was no

substantial risk that the defendant was prejudiced’ ‘by the ©

co-Mefendant’s confession. i Sie IN:

we i

The standard Here eohtend: would adisintalul’ expose

past cases in which the'integrity of the fact-finding process

- was significantly impeached. In this respect, the arbitrary _

per se test or atest of harmlessness beyond a reasonable~o

doubt i is unnecessary. In Stovall, where the. Court wag

fendants would go free. But surely a moré sensible’ test °: *

‘6

eee ai !

Best ge.

as also concerned with effective coi ; ntation—of innocent

~. ‘eyewitnesses, not secomplices—thdse tests were rejected -

as to past cases; only for fu cases ‘was a stringent:

_ Standard of harmlessness adopted. for testing the ) effet of

the absence of unsel at a line-up. :

* Tn, other situations where. the integrity of the fact- -

finding process was not irrelevant ta the purpose of the new '

_ ‘Tuling, this Court has. denied retroactivity completely, in-

‘eluding rulings relating to the right to trial by jury, the<.

«ight to the Miranda warnings before custodial iiterroga--

__. tion, and comment Dy the court or prosecutor upon the de- *

~ -fendant’s silence at trial; plainly, a new constitutional :

He hark need not be applied retroactively, such that only . ‘

ess error. ‘beyond a reasonable doubt will save acon-;>°

on erely ‘because the ruling. was designed to enhance

. the 2 integrity of the fact-finding process. Decisions'to that _ ‘

- pffeet. have-weighed. the probability. that the verdict of -

guilt was unreliable against the disruption ‘to the-admin: >

istration of justice stemming from retréactivity,; and re-

liariee on prior rulings. Relianed upon’ Delli Paali, Gilbert,.

Johnson and. other cases was justified, we submit.. Dis- .

ruption from retroactive application. of a broad interpreta- _

_ tion: of Bruton is clear.. On the ‘other hand, impeachment —

of the verdict of guilt i is remote where ‘there is no substan-

‘ tial risk that the j jury was prejudi the\go-defendant’s _ s

. confession. The accuracy ‘of*the verdict of guilt is ‘threata a

ened only where two occurrences combine: the jury was

persuaded in ‘its verdict by the co-defendant *s, confession

. ‘nd that confession was false.

Miptetves” to the’ extent that ‘a per se. tule would virtu-

ally akolish the joint trial in the future, it’ is undesirable.

: _. While the Court in. Bruton pointed to. very real patterns

‘© of abuse’ resulting fromm an exaggeration of. Delli Paoli’s ;

. expressed faith in_the efficacy of instiructions by the trial ‘

@__ court, it did not-announce a strict rule against joint trials,

an Be _ and should not now. In United States v. Bozza, 365 F. |

‘ "2a .206, 217 a Cir. 1966), Judge er sa aml

Sad

eer ; 13 |

oC i = ‘ ,

Bruton in rejecting the idea that the Judge’. ington kioné

will ne

essarily cure prejitdice in these cases but he simi-__

larly rejected the idea that they are never sufficient.

«The rule announced in that case is that the factors sup-

_ porting a joint trial must’ be balanced against those mili- —

tating for severance on a-case by tase basis. Judge: Wein-

feld’s excellent discussion in United Stafes v. Kahaner, .

‘203 F. Supp. 78 (S.D.N.Y. 1962), is'to the same effect. _

.’ The prosecution should notbe required in every case

. elect between a joint trial and’admission of’a confessi

_. against the maker. A voluntary confession often is“the

bést evidence of guilt and is absolutely necessary if certain

crimes are to be prosecuted at all. - See Miranda v.

Arizona, 384 U. S. 436. * Stee wees |

_ The basis of the joint ¢rial inthe instant case is that four

people robbed a liquor store and in’ the process. killed an

employee. Those are the faéts which must be presented .

to the jury whether the defendants are tried separately or.

together. Most of the evidence introduced in this casé or _

in many. of thethousands of simiar cases will be applicable

' . to.all the @efendants,. Also see United States-v, Smith,

. 209 F. Supp, 907, 914- (E. D. IIL, 1962)..°To the extent

that a trial is a search for truth; it is preferable to try —

_the c&ye in one piece.’ The joinder in this case, as in

most other joint trials, is not the deliberate scheme of

the prosecutor but of the perpetrators. This view of a

joint. trial was one of the important underlying bases:for

the development of the theory in the Second Circuit,shich -

resulte@ in that court’s and this Court’s decisions in Delli .

Paolt.: Yet curing the deficiencies in an absolute treatment

of Delli‘ Paoli, it would be a miStake (to go to the ‘othe

extreme and forget the wisdom on whith # is based. ~

When the proof presented against one defendant who

is tried alone must demonstrate ‘the guilt of four, an.ele- .

ment of conftaion must enter, the’ jury room. Of course,

the Court will instruct the jury —— the. absence

+e the other-‘defendants but in order té bitiove that they

- @uld reach a just result, we again are thrown back on - +

the asstunption that juries follow the court’s instructions.

Just as joint trials have been’ abused’ by. Prosecutors de-

liberately laying before them evidence sible against

only one defendant (Bruton v. United States, supra, at

136), defense lawyers have exploited the fact of severance

to insinuate doubt in the juror’s mind ‘that if four people

- committed a crime and only one was. present, how could

they be sure that the crime -had been solved.

ee Thus, a joint trial for. a siiat érime 4s ordinarily prefer-

able. This has consistently been the practice. For in-

stance, under Rule 14 of the Federal Rules. of Criminal.

-Procedtte relating to prejudicial joinder, courts havéheld

that there is a strong presumption in favor of joint trials. _

Brown v. United States, 375 F. 2d 310, 315 (D. C. Cir. 1967),

a denied 388 U.S. 915; Golliher v. United States, 362 F. .

2d‘594, 603 (8th Cir. 1966) ; Sagansky v. United States, 358 +

| FF. 24195, 199-200 (1st Cir. 1966); Williamson v. United

_ States, 310 F. 2d 192; 197 (9th Cir. 1962); Daley v. United ~

States, 231 F. 2d 123 (1st Cir., 1956), cert. Wenied 351.

-U. S. 964; U. 9. v. Crisona, o71 F. Supp. 150-(S.D.N.Y.

1967); United States v. Steel, 38 FRD. 421 (SDNY

« 1965); United States v. Boyance, 30 F.R.D. 146 (E. D. Pa:

1962) ; .United States v. — supra; United States : ae

Kahaner, supra. : ma :

Neither the burden on: i: the administration of justice nor

“trial efficiency. justifies infringéiment. of. constitutional

rights, but the-due process standard of substantial ‘isk

. O£ prejudice provides ample P otectiop’ for defend: |

awhile alleviating what must, i any, event be a great

impact on the €ourts. This standard is both appropriate:

. to federal review of state decisions and provides fléxibility

for taking into account the numerous factors and factual _

variations which must inevitably. arise in this‘area.

. The litigation since Bruton and Roberts indientes that

| -there are as many variations as there are cases and that

the factors favoring’ a joint trial a ie: very atc in,

_ ' One case and insignificant in another. -The factors tend-

‘ing to create prejudice to a defeyidant, particularly if his -

co-defendant has confessed, ought to. be persuasive th

many instances, The same factors will be considered by a

court deciding the motion to sever-a future trial and one

reviewing a claim of pref icial joinder as te a past trial.

However, with ‘regard to the future trial, the court must ~

_ use special care to insure that that trial will fnot be in- —

. fected, since, many of thé’ factors dre unkno Umiteld

States v, Hawpt, supra; Ruited & tates v. Kahaner, supra.

As we have just: discussed, , ‘one important factor for

@ court to consider in deciding whethey a. joint trial is

proper is the extent to.which the charges are identical and

intertwined and the extent to ‘which the evidence against

all the defendants is the same. The. court must_also con-

sider whether a jury- would. be confused by ¢ an artificial

severing of the cases. ao

' .. Thie Court i in Bruton indicated that the. ale considera-

the tions which motivated the prosecution , to seek a joint trial

were convenience, economy and efficieny. As Judge Learned

.,Hand has noted, therd also is the element of the search for °

truth (Nash v. United States, supra). ‘Nonetheless, effi-

ciency, economy and convenience are but materialistic names

for very human needs. The eonvenience of victims, other

innocent witnesses and citizens. who serve on juries, those

forgotten péople of the criminal system, is underrated in

the abstract. However, when trial judges are faced with —

concrete situations, such factors obviously have been found

compelling. * !

A witness who has testified i in ‘a dunk J ury proceeding,

who has been interviewed repeatedly by law enforcement

officers, who has made numerous fruitless appearances in

court now will be asked to appear more times and possibly

have his personal life painfully torn apart in a way only ~

cross-examination can do. This ‘witness has very rad

been a victim of a painful'crime and a co! étant testimonial

reliving of his horror seems an unnecessary torture for. .

him if there is no realistic risk of injury to the a

ants by reason of the joint trial. |

A -case which graphically illvetrates this point is that |

decided by the New York Court of Appeals in People v.

. Baker, 23 N. Y. 2d 307 (4968). Mr. Sugar, a Hungarian id

_ refugee, owned a smal retail clothing shop in New York

‘City. One afternoon, six young men gratuitously s stabbed

- his wife to death and, while he futilely sought to protect

her, stabbed him seven times. He Was saved from death

by an emergency operation and lived to tell the’ tale

to’ law enforcement -offiéiajs, to a Grand Jury, and to

judges at several pre-t hearings. He also testified

at trial] against six defendants and was cross-examined

; extensively by six counsel. The six mén were convicted. |

Their convictions were reversed in ignt of : Court’s

decision in Bruton. ;

“Mr. ‘Sugar now faces the likelihood of halltvids six

more times about those tragic events, which were as

devastating in Mr. Spzar’s life as they were in that of

the ‘six*co-defendants/ This does not mean that the Court.

of Appeals was-wrong in balanging the ‘chance of preju-

dice to the six co-defendants against the ‘‘convenience’’,

of Mr., Sugar, but only that im balancing between con-

venience and constitutional rights, the. former oer can

bédas genuine an issue as the latter.

In a partigular case evel economy and diciency are

factors which may have a life force. We are-presently in

an era where ¢rinié is increasing, the ‘percentage of trials

is increasing, and the complexity of criminal litigation is

increasing. Furthermore, an expansion in a number of

"trials means a delay in others which in itself might vio-

late a substantial right. | Eventually, the system will ex-

: pand to meet this flood of increased litigation but it takes

time to digest the confession hearings (Jackson vw. - Denno,

w .

bates > 17

| penn taint hearings (Gilbert v. California, s supra; United

States v. Wade, supra), insanity hearings (Pate vy. Robin-

son, 383 U. S. 375), suppression of ‘tangible evidence _

hearings {Mapp v. Olio, supra), an increased number of

jury trials «(Duncan v. Louisiana, supra; Bloom v. Iinois,

. supra), and the geometric increase in collateral attack

on t convictions. This difficulty has been recognized .

re y by this Court in holding certain new rulings

prospective only. See cases cited at page 8, supra.

Even cost can be a human consideration i in an era when

state and local administration is actively: competing di-

rectly with health, education and welfare for the tax dollar.

where severdnce will result in so many* ‘trials of such

length (e.g., Olwwas v. Eyman, 449 P. pa 942 [Sup. ‘Ct..

Ariz., in banc, 1969]), that the expense is a consideration.

if the chance of prejudice is slight. = — 9

In order to determiné whether there was serious risk of

substantial prejudice, to a non-confessing co-defendant the

- court must consider the entire context of the trial including

-the quality of the limiting instructions, the nature of the

confession, its relationship to the co-defendant, the kind of -

evidence introduced against the defendant, the weight of

the other evidence, and the specific protection — the

‘defendant’s right of confrontation. :

The quality of the limiting instructions is crucial in ~

weighing the risk of prejudice. In certain cases precise and

‘lucid instructions would be sufficient to-insure against

the possibility of prejudice. Haggard v. United States,

369 F. 2d 968 (8th Cir: 1966), cert. denied 386 U. S. 1023;

Unites States v’ Smith, edie . People v. Camardp, 266 Cal

/ For snails a. list of Federal sliet-lefenitant trials in the

Second Circuit is contained in Judge. Moore’s dissent in United

States v. Bozza, ssa at 229, a.

| A general policy favoring multiple trials for. joint crimes

will be costly in and of itself; but there are even instances

App. 2d 266, 72 Cal. Rptr. 296 (1968) ; People v. Willis, 30

A, D. 2d 817 (3rd Dept. }. Also see Judge Medina’s

concurring opinion in United States v. Delli Paoli, supra at

_ 322; United States ex rel. E ‘ v. eee 268 F. Bapp. 580

(SD.R-Y. 1967). firs

Evidence that the instructions had, in fact, bata effective.

would also be relevant in determining whether the jury was.

Fiswick v. United States} 329 'U. S. 211, the jury did express.

_ « @onfusion about the extent to which one co-conspirator was"

~s + bourd “by the act of anit ther.” “Tn that’ case ‘this "Court held———.. se

Rk 5 and properly’ intonk

willingness of the j

have been demonsti

if a jury were to

to follow such instructiona would

uted by thé question. Furthermore,

it the defendant on one count which

would have been supported by statements in the confession

or if there was an acquittal of another co-defendant also

implicated in the confession, the jury would have demon-

strated its ability to discrigginate in the given case. Com-

‘pare United States v. Bozz@y supra, where the fact that the

only exhibit taken into the jury room was the confession of

one of the de endants strongly supported an inference of

prejudice to the co-defendants. .

| The naturg of the co-defendant’s admiasions_also is of

eritical importance in determining whether dr’ not a_jury -

might have been prejudiced by them. In Bruton, this Court

~ emphasized that the dee! rant’s implication of lis co-de-

fendant was unreliable because of the natural motivation of

the co-defendant to exculpate himself thereby. at 136.

- Also see Barton v. United States, 263 ER. 2d 894/(5th Cir.

"1959) ; Dauer v: United States, 189 F. 2d 343 (10th Cir.

1951). However, in specific cases the facts might prove the

opposite. If the co-defendant assumed the larger share of

guilt, his statement would not be inevitably suspect.

;

The peste of. detail, the stiles the other party, —<

_ the dramatic tenor of the confession are also relevant fac-

tors. The lack of consequence of the report of the statements

was held determinative in Wapnick v. United States, ——

F, 2d —— (2d Cir. decided February 11, 1969), SL Sh>

Op. No. 292 Sept. Term 1968, )P- 1227; United States v.

_ Hoffa, 402 F. 2d 380 (7th Cir! 1988). Evidence of oral

‘confessions. has tended to be less prejudiGial (Wapnick. v.°

United States, supra), than written (Dnited States v. Bozza, °

' supra; United States v. Delli Paoli, supra); but also less

; ~ gubject. to redaction ( sas States ea rel: Hi v. Deegan,

i ie Supra).

If the role of the co-defenaiit’ is severable ad redacted —

from the ve rsion of the confession introduced at trial, that

should be\ sufficient to overcome any chance of prejudice.

Bruton, supra at 134; Oliverv. United States, 335 F. 2d 724

gw _ (1965) ; People v. Aranda, 47 Cal. Rptr. 353 (1965).

- Even if. it is necessary to refer to another person in the

* narrative of the crime contained in the confession, redac- .

tion can be effective if any suggestion is removed as to .

who that other person is, e.g. People v. Vitagliano, supra.

_ In Dmited States ex rel. LaBelle v, Mancusi, 404 F. 2d 690_,:

(2d Cir. 1968), it was held that the confession was not suf- ‘

_ ficiently edacted*to protect the identity of the non-confess-

ing brothpr . A different situation is presented in the case

where there is overwhelming independent evidence of the

guilt of the non-corfessing defendant; but where there is

no textual clue as to who the partner in crime might be. .

In such a case, a jury disobeying the judge’s limiting in-

structions might know who the unidentified person was,

but the chance that they would look to, or rely on, the.

co-defendant’s statements is slight and the risk of prejudice.

de minimis. re‘ most of the evidence is’ introduced

male, the reasons for a joint trial over- "

. : fi

e -

J ; PP ie co

2 Ci REI LOO RED ls ihn ans eaten Mi a nn eee ned ease

es - x — -

in sees, the stiitinat sata of the trial, and the

slnenath ‘and independence of the evidence dgainst the non-

confessing defendant are crucial in determining whether or

not the joint trial has created a serious risk of substantial

‘~prejudice to the non-co essing. defendants, e.g. Bruton v.

» United State$, supra; United States v. Jones, 402 F, 2d 851

' (2d Cir. 1968), cert. denied March 24, 1969 (O. T. 1968, No.

1314 Mise.), 37 L. W, 3356; Nelson v. United States, 397

_F..2d 814 (9th Cir. 1968), cert. denied March 24, 1969 (0. T.

States, supra; United States ex rel. Floyd v. Wilkins, 367.

F. 2d 900 (2d Cir. 1966) ;: Williamson v./United States;

‘supra. In a case where both or all the.codefendants made’

|. significant admissions, the. chance of prejudice is substan-

__ tially eliminated, since a person’s own statement is far

“-more dramatically damaging than that of his co-defendant

| \who has the inherent motive for lying. Thus, in a case

involving cross-implicating confessions, the United States

Court of Appeals for the Second Circuit held that there

was not the “‘ ‘devastating’ risk involved in Bruton”.

' United States ex rel. Catanzaro vy. Mancusi, 404 F. 2d 296

_ “f2d Cir.1968), cf. United States ex rel. Johnson v. Yeager,

399 F. 2d 508 (3rd Cir. 1968) ; People v. Pohl, 23. N. Y. 2d

290 (1968) ; People v. Camarrillo, supra.

Similarly, if the other evidence of guilt is strong, ere’

is little risk that the jury will disobey the judge and turn

to the confession in order to determine the non-confes-

sant’s guilt and even if they do, there is little risk that

he would be prejudiced. ,

The manner in which the confession is betnsdiadd. is

significant in determining the risk of prejudice afd an

attempt by the prosecution to implicate the non-confessing

endant by méans of the confession of his co-defendant

is Notally impermissible. A case in which that fact is

involv ust, under Bruton, be viewed with great skep-

ticism. One of the factors that seems to influence this

Court i in Bruton was the deliberation with which Evans’

- 402 F. 2d 920 £9th Cir. 1968); People v. Willis, supra;

' sible that the confessor challenges the credibility of his.

" own confession effectively without taking the stand. Cer-

| tainly, the jury which must determine the confessor’s guilt

is not without the ability to find him an incredible ‘‘wit-

y Reople v. Ar

‘ risk of preju

Courts have held that the proper procedure is to suppress

noted in Bruton at 136 may well be:dramatically brought

confession was spread before the juy. Id. dt 136. Also see

, Supra; Péo aker, supra; People ~

v. Weis, s By contrast, et care is used jn the intro-

duction-of the confession so as not to implicate the co-

defendant, that also is of Sanne in Je irae the

If the confes ion i is mere sribenas as evidence idee

the detlarant, but damaging to, the co-defendant, several.

the confession. United States\v. Gottfried, 165 F.2d 360

(2d Cir. 1948), cert. denied 333 U. 8. 860; United States v.

tishamer, swpra. Also see Dauer v. United: States, supra,

' Finally, we must remember that it is the: right of con- x

frontation: that Bruton vindicates. In a case where the pre

co-defendant: took the- stand, there is an opportunity to

confront and cross-examine the declarant and the Sixth,

Amendmentpright i& protected. Santoro-v. United States,

People v. B ll, 30 A. D. 2d 842 Dept. 1968). Com-

pare United 8 vi Bujece, 405 2d 888 (2d Cir., 1969).

It must be remembered that a co-d endant’s credibility

ordinarily is challenged very severely at the trial, unlike

that of the ordinary hearsay declarant.. The very party —

which introduces ‘his confession is charging him with a

crime and is out to biacken his character. It is also pos-

ness’’ and his inherent motive to lie which this Court

home in a given case. Argument of counsel combined with

the facts regarding the co-defendant ’% character and con- -

fession may be the equivalent of the right of confrontation

under certain cireumstances. i ies

‘One final fact must be mentioned in judging the risk

of prejudice in a given case and that is the benefit which

directly accrues to the non-confessing co-d fendant from’ |

a joint trial. In every case he benefits from his co-defend-

. ant’s Fifth Amendment right not to testify. Thus in this

- case, lad Harrington been tried separately; he might well

hav had; very powerful witnesses against ‘him, his

three efendants who had ‘been previously tried and

eonvicted.. While his Sixth Amendment right to confronta-

tion might be abridged, he is Concomitantly shielded from -

very damaging evidence ‘and we can understand Judge

_Hand’s cryptic comment that a joint trial where confessions

are introduced on balance ‘‘probably furthers rather than

_ impedes th rch for truth”. Nash v. United States,

supra at A

In any La the faet that, his “se dalled inight

directly. testify against/him in a sepafate trial.is a tac-

. tical reason for a‘defendant to’ refraid from moving to

sever his trial from that of his co-defendant. The failure

to make a timely motion should ordinarily be decisive in ,

upholding the joint trial. See Delli Paoli v. United States,

. supra; United States ex rel. Hill v. Deegan, supra. But

gee Bruton v. United States, supra. Also see United States

v. Hoffa, supra; Calloway v. United States, 309 F. 2d 1006

(D. -C.. Cir. 1968) ; Ee v. United States, supra at.

197. ‘

Finally, i ust be reco that the possible implica-

; tions of B oe seit respect to any evidentiary questions

and the r which ever can be placed on the jury to

follow instructions and to apply the law to the facts ex-

far beyond theebroadest holding of that case itself.

However, should the state courts and the lower federal

courts wish to re-examine ‘contiguous areas of criminal pro-

célure, for example, the introduction of hearsay, the,

. joinder of counts for trial, the use of conspiracy charges

and a myriad, of evidentiary matters, they are likely*to

ip hesitate i in nthe face of a holding that Bruton announced a

Hig

per se oactits, rule. Any new holding salng' on

Bruton would be likely to require the same application al-

though these questions, like the one presented here,’ turn

on the facts of the individual cases. Thus, a per se rule

-. would, in the'long run, stultify the development of the law

by making the front-line judges reluctant to undertake

such drastic extensions. of new rules and to apply er: to

every a and future prosecution. + .@: 8

CONCLUSION

For all the foregoing

wa respectfully submit

that the decision of the California Court of Appeal «

“p should be affiemed aud thet Gl Court should hold that

a defendant triéd jointly with a co-defendant who con- —

fessed must show that there was.a serious risk that the

introduction of that confession \against ‘his co-defend-

ant substantially prejudiced his right to a fair trial,

* Dated: New York, New York, April 1, 1969.

"Respectfully subtnitted,

\ + Louis J. Lerxowrrz

Attorney General of the

State of New York

As Amicus Curiae

SamMvuE. A. , oe : i

| First Assistant ppieroer ¢ pone,

_ Amy Jovi

ENDA Solo:

Assistant Attorneys General ane

of Counsel eee ed kas

- ~The fellowihg Attorneys General: joined: in the submis- lant’

sion of. the megoms. brief :

A stata

Hon. Gary K. NELSON

dahade - Attormey General

~ Phoenix, Arizona, 85007 et

: Hom. Jorn Purcenn

oe oo - Attorney General -

€ | , yr’. . Little Hock, J Arkansas

‘ , Bal . arg eee Conorapo_ . ego :

Se | -».° ** How. Doze W. Dunsar:

as Attorney General

<a Colorado 80203

~~ | aaa | J onn D. LaBaz ;

‘ aes es State’s Attorney - -

, ro ‘Hartford, Connecticut 06106

Soo. ead inal Re. ae |

ae ae eae 3 ye Hon. Dav P. Bucksox

ies tk Sy a oe Attorney. General oer

es . EE ae ~ Wilmington, Delaware

Ks os Bc . < “aus

aa Kuwrvony 7 :

ia awe How. Joun B. BREckINRIDGE

‘| SAtlortigy General -.

: . . Fr ort, Kentucky 40601

A ’ - . : s 3 4

hel ae ieee a =f

pre ae be a Hon. Dovatas M:

ay Se ‘Attorney General

UE ee ee or oa St. Paul, . Minnesota S501

, a &

Sa. . ° 4 ° J“

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1 L Wansinc

: Attorney Gendy | : :

Helena, Mon ne, 89601 | aes

| New Mexico é \ )

> @ Hon. James A. Mato¥ey

: -Attorney General \

Sante Fe, New Mexico 87501

doe Norra CaroLia : : ise, ———

‘Hon. Roser B. Mence is

Attorney General |

Raleigh, ” ele Carolina 27602

Sourn CaRoLina . "

Hon. Dantex R. McLezop |

« Attorney General .

i! a Columhis, South Carolina 29211

reer

Sect Dakota

Mies ai . How. Gorpon Mypianp

_ Attorney General .

_ Pierre, Bonth Dakota 57501.

: Uran .

How. es B. Rouxer

te, Attorney General .

eed ads .-> Salt Lake City, Utah 84114 .

ms a Se Pe

aa is Vikors1a : F Gh

: Hon. Rosert Y. Burron”

Attorney General |

Richmond, Virginia 23219

WasHINGTON.

Hon. Siave’Gorton -

| = Attorney General :

~ Olympia, » is wea 98501

0) on

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