# Amicus Curiae Brief — Harrington v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0107%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 250 ## Text ros >: 2 + oe R 4 ° Z r . e % . Aa . > , ¢ ~ . . > e oe > -* ’ ° « eo” ; 4 . . A iss 6 . . - aig 4 . é . P ~ oe" ey 4 “X . \* ‘ x] ° ’ : be ‘ . ‘ a —— . ‘ * n r - “a . ’ . ‘ = C aa . & *. 9 7 : . . ‘ ‘ > " - > 5 7 ?é* 1 s ‘ ’ . > , ——__. ~ vee , a . — .- * is oa . . ‘ ” 4 . f _* » oe.” - . . . . . 6%. - © ‘ *» . e .& e ‘ ‘ - * | “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 ‘ v 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, 4. 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 . ° ] . 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) . 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 -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> 1 © 968); People v, ‘Mc*" 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 ° 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 - 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. in | A general policy favoring multiple trials for. joint crimes will be costly in and of itself; but there are even instances 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 (D. C. Cir. 1964); People v. Vitagliano, 15 N. ¥ 2d 360. © 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 — - ee a 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. 1968, No. 1095 Misc.), 37 L. W. 3356; Golliher v. United © 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 21 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 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 pe % - ~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 @ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0107%3A06. Public record. Not legal advice.