Reply Brief of Petitioner — Harrington v. California

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| 1 «| ake 6 ae

eye ca | L JOHN F. BAVIS, CLERK

«VTE SRD oT oF TE oe STE :

OCTOBER TERM, 1968

‘No. 750-

| | ' . Q@renn Martin Harrineton, age

eae ' + Petitioner, :

‘ SUPREME COURT. I. &

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE

STATE oF CALIFORNIA, SECOND APPELLATE DISTRICT —_

DIVISION S- .2 : t

ow”

eens, pie _

~~ PETITIONER’S REPLY BRIEF

‘ieee S. Hanson = ae

Counsel for Petitioner~

re * 6265 Lubao- Avenue

. Woodland Hills, California 91364

‘

’

a .

7? .

a 188

» “

Lees

‘

» ’

’

‘

| aa & INDEX’ ee

Pop Nedeamm te

SUBJECT INDEX

I. The ExtrajuditiaY Statements of the Three

' Codefendants Bbsby, Cooper, and Rhone

Do Fall -Within the Ban of Bruton v. -

United States, 391 US. 123 (1968), and —

Roberts v. Russell, 392 U.S. 293°(1968)...... 2

IL Automatic Reversal of ‘Petitioner’s Con-

; viction Is Required Withou urse ‘to

Any Harmless Error Rule; the dso

- of. the Extrajudicial Statements ‘Were

| - . Clearly Harmful to Petitioner Glenn M.

r _. Harrington ae *

IIL The Cases of Bruton y.’ United States

— (1968), 391 U.S. 123, and Roberts v.

Russell (1968), 392 U.S. 293; Have

Properly ‘Applied Totally Retroactively

and Have Been Made Mandatory Upon the -

. States Via the 14th Amendment, and There

Is Absolutely No Need to Once Again Con-

sidér the Issue of Retroactivity .......... oa

Conclusions: ee a see 2 24°

TaBLE oF AUTHORITIES

. : , . 4 ° : 4 .

' Alcorta v. Texas, 355 U.S. 28 7 ae

Atweil v. United States, 398 F.2d 507 (5th Cir. |

~ 1968) i isk aa a

_ Barber v. Page, 390 U.S. 719 wae | i ee

Bates & Chavez v. Nelson, —— U.S. . ‘gti ,

| 7 ‘L.Ed.2d : S.Ct. ae ‘ . 12

-. Miller v. Pate, 386°U.S; 1 ae

_. Miranda v. Arizona, 384 U.S.-719 i .

Berger v. California, —— U.S. , L.Ed.

1; | 0% —- . a. "B22 --

Bollenbach v. United States, 326 U.S. ee 8

Branch v. State, 212 So.2d 29. (Fla., 1968) _.....

Brookhart v. Janis, 384 U.S. | eee

Bruton v. United States, 391 U.S. 123, 375 F.2d

355 (1968) . 2,5, 9, 10, 11, 12;

13, 14, 16, 17, 18,

| : 19, 20, 21, 22724

Bujese v. United States, 378. 19. (2d Cir.),-

392 U.S. 297 . ae 14,15

‘ Chapman v. California, 386 US. 18 (1967) ........ 3, 6, 18

; stes v. Texas, 381 U.S. 532 a

Gelis v. State, 215 So.2d 86 (Fla., 1968) ............ 19

Gideon v. Wainwright, 372 U.S. 335 | ie i

Giles v. Maryland, 386 U.S. 66 si 9

Glasser y. United States, 315 U.S. 60 ........... ee

| Griffin v. California, 380 U.S. 609 . 3, 4,6 |

_ Hamilton v. Alabama, 368 U.S. 52 7

Haynes v. Washington, 373 U.S: 503 . 7

Hopper & Woodward v. Louisiana, 251 La. 77°

(La.8,Ct.), —— U.S. —— / "

Humt v. Connecticut, —— U.S. ——, 20 L.Ed.2d .

A110, 88 S.Ct. 2063, 154 Coma, 517

Jackson v. Denno, 318 US. 368 (1964) .:.........7,9, 10

Kerr v. Kerr, 118 N.Y.Supp. 801, 134 App.Div. °

141 (1909)... ee

Lynum v. Minois, 372 U.8. 528 ..... r

_ Malinski v. New York, 3408. 401 20% 7

Malloy v. Hogan, 378 U.S. 1 ao 9 \

McCarty ¢ Boyd v. Kansas, ——'US. —,, 20

_L.Ed.2d 1115, 88 S.Ct. 2065, 199 Kansas.116 . 10,11

; 9

- Napue v. Mlinois; 360 U8. 264 s.

Nelson v.. United. States, 375 F.2d 739 (1967) ,

Payne’ v. Arkansas, 356 US. 560 -

oP ople v. Barbaro, 395 Ill. 264, 69 N.E.2d 692

People v. Bates & Chavez, 50 C.2d 778 .

People v. Burwell, 30 A.D.2d 842, 292 N.Y.S.2d_

— 965 (1968)

People v. Flores, 68 C.2d 563, 68 Cal. Rptr. 161,

440 P.2d 233

Pecple ¥. Fox, ——~ N.C.’ ——, 163 S.E.2d 492

(1968) .......

_ People v. Soot, 100 tien 473, 241 N.E.2d

579 ......

Rideau y. Louisiana, 373 U. S. 723

Roberts v. Russell, 392 U.S. 293 (1968) ........2, 3, 5,9, 11,

12,13, 14, 16, 17, 18,

19, 21, 22, 23, 24

Samuel Sheppard v. Maxwell, 384 U.S. 333 .....

Santoro v. United States, 388 F.2d 113 (oth

Cir.); —— U.S..—, 88 S.Ct. 2054...

Schneble & Snell v. ‘Florida, 201 So.2d 881 (Fla.

Ct.), — U.S. —, 88 S.Ct. 2067 :

erio v. United States, 377 F.2d 936 (D.C.Cir. )»

—— US, ——,' 88 S.Ct 2068"

Spano v. New York, 360 U.S. 315-. |

Stromberg x. Califorma, 283 US. 358, pitta ia

Tchaygs. Scott, 382 U.S. 406 -.........-=

Tumey v. Ohio, 273 US. 510 -.... [ a

United States ex rel. Johnson v. Y. eager, 399

F.2d 598 (3rd Cir. 1968) 02...

United States v. Hoffa, 402 F.2d 380 (7th Cir.

" 1968) ; |

a United States v. Kelly, 399 F.2d 692 (3rd Cir.

-" 1968).

United States v. Tipowite, 401 F.2d 5a (3rd

Cir; 1968)

_ United States v. Lyon, 391° F.2d 505 (7th Cir. > |

,. 1968) -......

White v. Maryland, 373 US. 59

a Georgia, 385 U.S. ar 17 L.Ed.2d

‘Willems North Carolina, aS. 287 ...

0 gD omg SS

OCTOBER TERM, 1968 .

! Ae A

Guznn Mastin HagRrincror, PS gi We

Petitioner, *

4 v8. 7G f

. cor 4 \

Tne L cael OF Carzvonsia, ® wi

, re cama es oot oh OS 4

| ~ STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT *

a in : DIVISION 2

Fra |

5 cy

PETITIONER'S REPLY BRIEF ’ aac

To the. Honorable Earl E. Warren,. Chief Susie: oe the

United States, and to the Honorable Associate Justices _

, of.the Stipreme Curt of the United States:

Yee bas iran ia ia * Capea |

' Comes. now the petitioner, Glenn Martin Harrington, by :

aa Attorney Roger S. Hanson, Esquire, of Woodland Hills, .

ie California and replies to, the Brief of the respondent State

of California now on file with this Honorable Court:

° ° . . 7

( . clei 2 e

Gs e as !

By \ ° .

Pore = \ ie een Statements of ‘the Three ‘Codefendants

1 ar Bosby; per, and Rhvuwe Do\Fail Within the Ban of:

» Bruton v. United Statesp301 U. §. 123 (1868), and Roberts

ete v. Russell, $02. US, 283 (1968). ,

iV " Respondént State of California argues that only co-. *s

von defendant George Rhone actually mentiondd. petitioner by -

_ name, while ‘eodefendants Cooper and Bosby only described,

« >, him as “the ‘white man,” “the Canfasian,” “the patty,” and;

: other similar general terms, and since Rhone took the stand *

"and was: cross-examined, no Bruton-Roberts error was com- ~

* mitted in the instant trial” Mie tees eae eke

ne a ae Such reasoning is not pefsuasive, for it would be- indulg-

TSR gia -ing- in the height of naivete to promulgate a rule that re- :

‘quires actual mention by. name of the petitioner to CAUSE »

. erkor; when three Negroes and’ one Caucasian’ are sitting *

_, at thé defense table within clear purview of the twelve man- -

ao) day-jury, and all three of. the Yodeferidants describe the .

- . erime intplicating themselves and another Jman who’ is

ED . _ ‘Caucasian with ond of. them identifying petitioner by name, ,

“: "4° it-is manifestly. clear that the testimony of the two co- . *

"2" << .defentignts was material and gh gf 4S %to petitioner’ e

See s | conviction. agai Soa ts mee, pens

Dees \ The Stateer Califoriiia i is siennhied that even if a harm- f

“less error rule should eventually be applied, it shall cer- | |

iE lave beyond a @ reasonable doubt that. the error _—

ainet of a rd contribute to the conviction.

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The mandates of Bruton and Roberts are clear. This

- Honorable Court has studied and restudied ‘the. problem.

The Honorable Justice Hugo L. Black in Brookhart v.

-. ~ Janis, 384 US. 1 has already decreed that “if there ig a .

. denial of cross-examination without waiver, it is a consti- .

- tutional error of the first magnitude and no amount of

showing of want of prejudice would cure it

asitits J

Robeits y. Russell, 392. U.S. 293 has already made. the *

— ‘yale totally retroactive and applicable to the states. See

‘also Barber v. Page, 390 U.S. 719, and Berger v. Calif grnia, . ”

January 13,1969, —- U.S. ——,, No. 218 Misc. Clearly

the statements of the codefendants Bosby and Cooper fall -

within the'ban of Bruton v. United States and Roberts v.

Russell, supra. : ts

To hold otherwise ‘would be to walk a tight wire where

" every Court in the nation would be forced to indulge in the

- goul-searching and often indistinguishable idiosyncrasies of .

>the factual situation of each case; litigation would be

‘ . promoted at the ap

te level rather: than curtailed.

As the Honorable| e Potter Stewart has s0 astutely

discerned in his separate, but. concurring opinion in Chap-

man v. California ( ), 386 U.S. 18, 17 £4.24 .705, 722,

87 S.Ct. 824, concerning the applicability of a harmless

error to the Griffin violation (Griffin v. California, 380 U:S.. ee

609, 14 L.Bid.2d 406, 85, S.Ct..1229):— - |

“To be sure, constitutional ‘rights are not opt an

goodsgThe differing values which they represent and

7 protéct: niay. make ‘a harmless-errer rule appr priate

. for. one type of constitutional error. and not<for an-

. ofher. I would not foreclose the possibility that a

rmlegs-error rule might appropriately be applied to

¢:

iv)

. 7 OR

soma constitutional violations. ‘Indeed, one source of

_ my disagreement with the Court’s opinion is its im-

plicit assumption that the same harmless-error rule

should apply indiscriminately to all constitutional vio- .

lations. | : a |

Bu see No reason break with settled precedent

"in this case, afid promulgate a novel rule of harmless —

_ error. applicable to clear violations of, Griffin v. Cali-

fornia, 380. US 609, 14 L.ed.2d 106, 85 S.Ct. 1229. The

adoption of any harmless-error rule, whether the _one

proposed by the Court, or by/the dissent, or some other

<rule, commits this Court to a casé-by-case examination

' to determine the extent to which we think unconstitu-

tional comment on a defendant’s failure to testify in-

enced the outcome of a:particular trial. This burden-

tion is one that we > here are sacred qualified

[9] A rule of gutomatic reversal would seem, best cal-

" _ enlated to’ prevertt clear violations of Griffin v. Califor-_

nia. This case is one in which the trial occurred before.

the Griffin decision but which was. not final on- appeal

until afterwards, 89 the doctrine of prospectivity an- .

nounced in Twhan v. Shott, 382 U.S. 406, -15 Led.2d-

453, 86 S.Ct. 459, does: not reach it.. But the number of

such cases is strictly limited. Prosecutors are unlikely

to, indulge in élear violations of Griffin i in the future,

and if they do\I see no reason why’ \the sanction -

reversal should not be ‘the result.

For these reason# I }elieve it inappropriate to in-

quire whether the violation of Griffin v. California that

oceurred. in this case-was harmless by any standard,

and rdingly I concur in the ee of the

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It is ee lucid that the three eroes-fertilizing con- ie au es

' fessions of codefendants assured @ conviction of yar peti-" REO >

tioner, and were highly damning, persuasive, a

acting when the two victims of thé robbery admi

oath that both had originally described the robbery as being.

perpetrated by four Negroes (Single: Appendix, pages 88,

121). Petitioner Harrington is a Caucasian.

Petitioner has discussed the factual situation, as has the

State of California, both in a competent ‘manner;: this

Honorable Court has given extensive study tothe problem,

and the mandates are today well established.

——— well qualifies, indeed is. more qualified than

+ the single codefendant cdses of Bruton v. United .

pte and Roberts v. Russell, for automatic reversal of this

conviction obtained without opportunity to totally cross-

examine; a ‘constitutional error of the first magnitide was .

committed and no showing of want of prejudice will cure

it; 384 U. S. 1. We have the Honorable Justice Hugo Black

_ writing for eight. members of this Honorable Court well f

: defining that already in Brookhart v. Janis, 384 US. ‘L

Further petitioner saith not. -

cae” be °

Avtemetie sevens of Patitioner’ 3 Conviction Is Re-

* quired Without Recourse to Any Harmless Error Rule;

the ‘Admission of the Extrajudicial Statements Were '

Clearly. Harmful to Petitionst,, Glenn M. Harrington.

It isto be observed that Chapman v. California (1967), *

° 386 U.S. 18, 17 I.Ed.2d 705, 7 S.Ct. 824 really applied a ...

harmless error rule to comments about the evoking of an-

other constitutional right; certainly no one would advocate .

- as harmless error the situation where a p osecutor forced 3

- defendant. to take the witness stand. in his: own. trial

against his wishes, or prevented his taking the stand if he

desired. If that had occurred, it would clearly be % con-

stitutional error of the first. order of magnitude, and no

showing of want of prejudice would cure that error. Beref-

icently, however, for the prosecutors of this country, this

Honorable Court allowed the application of a federal harm-

less error rule to comments by prosecutors concerning the

failure of a defendant to volyntarily assume . the stand in

his own defense; Chapman v. California, supra.

a Clearly the error under consideration in Griffin v. Cali-

fornia, 380. U.S, 609, 14 L.Ed.2d 106, 85 S.Ct. 1229, and

‘Chapman v. California (1967), 386 U.S. 18, 17 L,Ed.2d |

705, 87 S.Ct. 824 was only the comments about the exercise

of.an otherwise poner right, and therefore oe

this Hont le Court felt the error o coment

short of the error of ac lly i'ducing #8 defenda

take the stand, or the aunt of the s |

As the Honorable J ustice Potter Stewart has Avell

fined and decreed, in Oe v. California, 3 5 CU. $718,

v. 70

17 L.Ed.24 705, 720, certain errors aie to be held automati-

y cally reversible. . ae aria

Among them are:

1. Involuntary eonfeasions;. see. Lynumn v. 1 Winvis, 37 2

U.S. 528, 537, 9 L.Ed.2d 922, 928,83 S.Ct. 917 (the

- °. argument the error in admitting such confession

' was ‘a harmless one . .. is ‘an impermissible d

_ trine.”), See also Malinski v. Néw York, 324 U.S. 401,

404; Payne v. Arkansas, 356 US. 560, 568; Spano v.

Now York, 360 U.S. 815, 324; Haynes v. Washington, . .

_ 873 U.S. 503, 518-519; Jackson v. ai 378. U.S. 368, =

- 376.377.

oe Denial of counsel at trial (“The right to pons the

. assistance of counsel is too fundamental and absolute

»- —. toallo courts to indulge in nice calculations as to the

amount of prejudice arising from its denial.” Glasser

” y. Upited States’, 315 U.S. 60, 76, 86 L.ed. 680, 702, .

62 S.Ct. 457), See also Gideon v. Wainwright, 372 U.S.

- 335, 9 L.ed.24 799, 83 S.Ct. 792. See also Hamilton v.

Alabama, 368 U.S. 52; 55, 71. ed.2d 114, 117, 82 S. Ct.

"157; “We do not stop to determine whether prejudice |

‘ resulted.” In addition, see White v. Maryland,.373 -

U.S. 59, 60, 10 L.ed.2d 193, 194, 83.S,Ct. 1050. |

- * Trial Judge’s remuneration based on’ scheme giving

him financial interest in the result, even if no particu-

lar prejudice i is shown and even if the defendant was.

clearly guilty. See Tumey v. Ohio, 273 U.S. Sis, 535, :

71 Led. 749, 759, 47 S.Ct. 437. é :

i Adverse publicity in the ‘community where trial is

‘held is per se grounds for reversal ; no showing need .

' be made that‘the jurors were in fact prejudiced

, : a

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% .

. against the defendant. See Dr. Samuel Sheppard v.

‘ Maxwell, 384 U.S. 333, 351-352, 16 L.ed.2d 600, 613,

614, 86 S.Ct. 1507. (Aided, it might parenthetically

be ‘added, by- David. Janssen as Dr. Richard Kimball

-in the many-week T.V. Program “The Fugitive”) ;

see also the problems of Texas anhydrous ammonia —

« tycoon Billy Sol Estes, 381 U.S. 532, 542-544, 562-564,

593-594, 14 Lied.2d 543, 549-551, 561, 562, 586, 587, 85

S.Ct. 1625. See also Rideau v. Lowisiana, 373 US.

123, 721, 10 L.ed.2d 663, 665, 83 S.Ct. 1417

.: Instruction of juries on unconstitutional presump-

_ tions requires overturning the convietion even though

there was ample evidence apart from the presumption

to sustain the verdict. See Bollenbach v. United

States, 326 U.S. 607, 614-616, 90 L.ed. 350, 355, 66

” eae se egaae *

6. - Obtaining a conviction on a anitnlionaty impermis-

sible grounid,. despite the fact that there was a valid

‘alternative ground on which ‘the conviction could have

, been sustained. See Stromberg v. California, 283 U. Ss.

359, 367-368; Williams v. North Carolina, 317 U.S. 287,

; Purposeful discrimination in the selection of grand

and petit juries is automatically reversible without a

necessity to show prejudice to the, defendant con-

_ vieted under such a disability. See Whitus v. Georgia,

385 U.S. —, 17 L.ed.2d 559, 87 S.Ct, 643°

. To the above may be. adadsd the significant cases on the aa

_ knowing use of perjured testimony to ‘obtain a con- -

/ yiction; these have been reversed without recourse to -

“harmless ‘error rules.” See N. apue v. Illinois, 360

z / U.S. 264, 3 L.Ed.2d 1217, 79 S.Ct. 1173; Might v. Pate,

/ _. $86 U.S. 1, 87 S.Ct. 785, 17. L.Ed.2d- 690; Alcorta ¥.

/ ‘Texas, 355 U.S. 28, 2 L.Ed.2d-9, 78 S.Ct. 103; Malloy -

v. Hogan, 378 U.S. 1, 12 L.ed.2d 653, 84 S.Ct. 1489;

Giles v. State of Maryland, 386 U.S. 66, , TL. 24 78.

The reason, of course, is that these errors ‘were “consti-

tional errors of the first order of magnitude and no show-

ing “ef want of prejudice would cure. them,” per J ustice

Hugo Black, Brookhart V. Janis, 384 US. 1.

‘ Likewise is the instant error in thd case at bar. The

denia! of a right to confront all witnesse

- happens, and no matter what other evidence could support

“the conviction, 384 U.S. 1, Justice: Black expressing the

views of eight members of this Court. |

Petitioner urgeg that without explicitly edjntying in

either Bruton v. United States; 391 U.S. 123, or Roberts

v. Russell, 392 U.S. 293, this Honorable Court has —

-" decreed that no harmless error rule shall be applied

‘instant error, for it is of the class of erfors of the oat

order of magnitude. If the error. in Jackson v. Denno, 378

U.S. 368, 376-377 is automatically reversible, 80 must’ this

error.

This. Honorable Court is Fominged that the instant error

is potentially much more dangerous than the Jackson-Denno

: stifying against.

the defendant is a denial of a constitutional right of the

first order of magnitude, whenever it happens, wherever it ©

error for the simple reason a confession which is ordered -

to be not considered ggainst. defendants not making it still

cally remains in the case against the maker; as such —

it.may and usually is ‘taxen into the jury room as an exhibit.’

to be read and reread, ingested, digested, and discussed.

a Sa, ere cama Aaa

. The implicating features as to the other codefgndants are

thus able to make recurring, machine- gun-like i impressions _

” oh the minds \of the jury, offset only~by ‘the already-held- —

inadequate instguctions to the jury to disregard the con-

fession as to all non-makers. Of. course, in the Jackson v:

Denno error, the confession was totally emoved from the

case. j aa

. It seems without fear of contradiction that if the error -"«

condemned in Jackson v. Denno, 378 U.S. 368, is not to be ,

saved by a harmless’ error rule, so much more fnall the i in-

stant error fail of rescue. ‘ oa

: ‘ Se

_ This: Honorable Court has already considered numerous- a

cases under/the Bruton-Roberts error, and has remanded =

them for thar consideration in a < the “above

décisions. |

- It is, therefore, ended to inquire ‘ato the facts of some

of these cases to ascertain whether other evidence existed ©

in’addition to the confession of one a which im-

: plicated the other. ;

Jaok Loyd Mbarte and John Boyd v. Kansas; oe

US. ——, 20 L.Ed.2d 1115, 88 sof — June 10, 1968, -

was remanded to the Kansas Supréme Court on behalf of

petitioner Boyd. At 199 Kansas 116, the opinion of the °

. Kansas Sdpreme Court sets out the evidence against John

_Boyd in addition te MeCarty’s implicating confession. -

'. MeCarty and Boyd held up a Topeka, Kansas liquor store.

_ Boyd was clearly identified by prosecution witness Taylor ©

When leaving the scene of the crime in the get-away car,

/whose license was obtained. Taylor followed the car, giv-

f ing police a description. Shortly thereafter, both men were

apprehended together, the Sotice finding them with the get-

away auto, having in their possession several 25¢ coins _

Zs ft yp” »

‘ ; a

marked with red X’ 8, which were ,used by a customer. to

purchase a bottle of liquor immediately before the crime.

In rejecting any contention that the yet-to-be decided eo

Bruton-Roberts error ome, the Celtel Kansas Su-

preme Court stated:

“The evidence against Boyd, from sources other than

McCarty’s statement, was persuasive se” (199 Kans

‘

116, 122). | ie

Hence it appears that certainly other convincing evidence

existed t6 convict Boyd—an eye witness, marked coins, an

- identified get-away car. This Honorable Court gave no

heed to all that other evidénce in remanding to the Supreme

Court of Kansas; this Court noted the violation of prion

_ and Roberts and summarily remanded. |

.. In Donald E..Hunt, Petitioner v. Congecticut, — US.

——, 20 L.Ed.2d 1110, 88 S.Ct. ——, remand was ordered

to ie Supreme Court of Connnetiaat on June 10, 1968, for

further consideration i in light of Bruton-Roberts.

At 154 Conn. 517, the Suprem® Court of Connecticut

. treated. the evidence against Hunt. Connecticut policecame .

upon & total}y naked woman running from the woods, elaim-

2 ing’ spe had been raped by it and cédefendant Doten.

Immediately the also totally. naked - Hunt “was artested.

Photographs taken showed sdévere scratch marks on Doten’s

_ face and on Hunt’s nose, and bruises and abrasiorié‘on thé.

. face, arm, knee, and: back of the complainant. The .com- -

' plainant identified both men as the —_: Doter impli-

cated Hunt with a statement: ~

Whatever ‘the damning nature of . the bliin other

evidence existed to convict Hunt both flirectly and circum-

arses nae direct testimony of the eee ;

“

x Wa

— Was

seratches and ‘abrasions on the parties, ana ti the circumstan-

tial fact of finding Hunt and the prosecutrix totally naked

in the woods certainly presented a solid case agafst Hunt,

for being naked with the complainant, “it is presumed he .

saith not a pater noster there” (Kerr v. Kerr, 118 N.Y.

Supp. 801 (1909), citing wi i an of Mel., vol. 2, pt.

3, Sec. 3, Mem 1, Sub 2).

Yet, this Honorable Court aid not let the additional evi-

dence bother it in remanding to, meet the reversing man-

dates of Bruton and: Russell, 391 U.S. 123 and 392 US.

293, respectively. , *

4 Tn perhaps one of the more famous capital ishment- _

premeditated first d@ree murder-arson cases in all of

California history, People of the State of California v.

Clide. Bates and*Manuel Chavez, 50 C.2d 778, Bates and

>. Chivez were condemned to California’s San Quentin Peni-

~~-ctentiary gas chamber fog their deliberate arson of the

Mecea Bar in Los Angeles following an altercation there:

-The pair went to a gas station and purchased 5 gallons of |

gas in an open pail container, and returned to. the bar,

sloshing it all over the floors and bar and igniting it with —

a match. Seven people were burned to death. Codefendant

‘Hernandez made statements to the police implicating ‘Bates .

and Chavez in the \crime.. However, it is quite clear that

other independent: evidence was available to convict both ~ |

Bates and Chavez; numerous eye witnésses, the service

station attendant who sold the gas in.an open, unmarked,

non-red container ‘in violation of Tocal law itself, and the ©

"” general irrefutable web of circumstantial evidence wrought

by the. close temporal proximity of all events presented’

~~ excellent prosecution case. without the implicating conf i"

sion of codefendant Hernandez.- Yet pee US. —, ——

e *

™ +

- “

.\ > %

13.

My pies: cis, ilies Steet 1.3 ; , 1968,

this Honorable Court remanded the Bates-Chavez case to

the Ninth Circuit Court of Appdls for reconsideration in

light of Bruton v. United States, 391 U.S. 123, and Roberts

v. Russell, 392 U.S. 293; this originally capital punishment

ease, under initial jurisdiction of the Supreme .Court "of

- California under California Penal Code Section 1239 b, was

relegated to life imprisonment sentences when California ~

- Governor Edmund G. Brown commuted the death sentences

- in late 1967 before leaving office. Ss = Ss

‘Petitioner assumes, as does his counsel, that this Honor-

able ‘Court remanded to local courts all of the above cases

to allow the local courts to erder the reversals, i in keeping”

‘with thé generally recognized traditions of minimal inter-

ference of federal courts in State Criminal Proceedings;

petitioner and his counsel assume it was not done for any

~ question or hesitation on the‘ part of this Honorable Court.

whether or not the cases clearly demanded reversal in light

: : of Bruton v. United States (1968), 391 U.S. 123, and Roberts —

v. Russell (1968), 392 U.S, 293. ~ ; /

. Similarly, i in Phillip Santoro v. United States, —— US.

——, ~— L.Ed.2d —-, 88 S.Ct. 2054, 388 F.2d 113 (1967),

this Honorable Court remanded in light of Bruton-Roberts;

‘the appellant was found with stolen credit cards belonging ~ :

_/ to one Ralph. Sieben, whose stolen Cadillac appellant«was

attempting to sell when apprehended by the F.B.L , oa

Ninth Cirenit Court of Appeal Justice Stanley B res,

in affirming appellant’s conviction af 388 F.2d 1 , 115,

. Stated: Popa: os

| “The evidence, other than the implication oicdoinat

in these stafgments, was ample to sustain the jury’ 8

_ verdict.” "a

2 yy :

‘e lary Di Salons v, see er ]

-\Gukaga—— 88 S.Ct. 2069, 375 F.2d 739. (1967) was re-

3 tmanded far Bruton-Roberts errors. While the opiniqn be-

§ as Heioe, a apparent that again this Honorable Court 3

“Ge remanded without hesitation vane Bruton-Roberts error bi

as sles candied Setio ¥ United States, cai BS, —,

—— L.Ed.2d —,, 88 S.Ct. 2063, 377 F.2d 936.

In United States v. Jeffrey Biiese| 392 U. S. 997, —

1b.Ed.2d —, 88 S.Ct. 2064, 378 F.2d 729, Bujese’s co-—

defendant Hutchins pleaded not guilty and took the stand. -

‘After denying on direct examination having committed the

robbery, he confessed to the crime on crosé tion

‘ ‘before the jury after the government had confronted him

with his previously signed confession. The signed confes-

: sion, introduced into evidence, implicated Bujese. At sev- |

_ eral points thereafter, the trial court instructed thejury 7

that Hutchins’ confession implicating Bujese was “not bind- -

-‘ing”-on Bujese. In two instances, including the charge to:

. the jury, which included the following, the judge told the .

_ jury ait the aw was not to be _ “as against”

2 *#Under 1 no circumstances i is 5 tha: signed confession: of ,

Hutchins to"be considered as against: ‘Bujese:

| “You see, the reason it is admissible against Hutchins |

ee because. e is an admission nine interest. Admis-

pk: Dg

’

: gions against interest are ‘alee allowable in n law eae

: _.. against the party who.makes it. : |

ae “As against Bujese, however, it would be pure rank

7 ligarsay, and I think we,all know, even non-lawyers, .

, that hearsay is Bot allowable against ia You must 3

, have: competent e dence. 7 os

| tthe statement of, Hutchins owetaat Bujéee i is s hear- oa

| Bay. It i is not binding on him in any event.”,

ia.

Iti is important to here note the following _— ‘of the’ “\

| opinion below, at 378 F. 2d 719, 720: : e..

“After Hutchin’s sdiinnton in open court, appellant

- {Bujese) called him: (Hutchins) as a witness for the _

- . defense, whereupon Hutchins testi that the state-

» ». * ment in his signed’ confession impligating appellant:

was wrong, and that in fact, appellan refused to -

. . participate in the robbery. There was substdntiakevi-

"dence agaixst pension, science to support’ ‘the jury’s

ee a : Paes ve?

“This ‘Honorable Court’s attention is called to the fact

‘that it remanded United States v. Bujese, 392 U.S. 297,20

- L.Ed.2d. 1113, 88. S.Ct. 2064, 378 F.2d 719. t the United

* States Court of “Appeals for the Second Circuit in light

of Bruton-Roberts even when the following’ conyred at

poe. The codefendant Hutchins, Who had made the impli- «

cating corfession, took the stand and was Subjected to

full examination, both cross: and direct;

2. The codefendant’ Hutchins was also later calldsto the

stand as a defense witness for Bujése, and attempted ~

BN ese

meet

dye ETT SAK reg et 2 “4

- : . : By 16 c Nee,

> ram 3

-+*. to,counteract the confess Gite was here again sub-

jected to fall GO ANE SRST tn ee aa

ea : ie Oa

Sa eee ey ea oe ee

>> Ths it. issevident that’ this Honorable Court does not

| ie It is therefore evident that in the instant case now at bas

( + etand. should be of no consequence; the Bruton-Roberts

courages this Honorable Court*to spell gut with specificity

in its opinion-in the instant case that the fact.that a co-

. defendant does take the| stand shall not save the case from

. Teversal when it is affligted withthe Bruton-Roberts error.

. * .It is to be noted that, as appellant and petitioner exten-

"sively already pointed out inshis opening brief, the

State Of Ilinois does not tolerate-the Bruton-Roberts exror, |

. and reverses summarily if it: occurs. In a recent case, ;

People v. Scott, 241 N.E.2d 579, 583, 100 Il. App.2d 473, ;

in deversing, the Court stated; = = a

“We also; suggest that the defendants be tried sepa- __—

Tately'if the State again intends to use Walker's ofal ~*~

statement: As related by the police, Walker’s state-

ment detailed the principal role played by Scott in. the

burglary. It wis neither made in Scott’s presence nor

5. Uk ee th ea ees

3 ‘

: . f e* . . . ‘ . . "

re ries , ° ’ - @

| a x py

assented ‘to by hi » anid, despite walhinies By the court |

..' that it eae be considered only as to’: Walker (as was

. done in the instant: ease), its use ote be “ae

error, Bruton’ v. United. SE tes, rita ee ;

-» * 1620, 20 L\Bd.2d 476 (1968); Re e Eoaia, W SA

\ U.S. 298, 88;S.Ct. 1921, 20 Spey 1100 (2968), See...

_- too, People. v. Barbaro, 395 Ill. 264, 69. N.E. “692 BB

- | (1946). ..»The fact that Walker took the st and,

that Scott had an vbporhty to cross-examine hin. did

‘not. mitigate the ergor.. 8. fy } FS

It is therefore evident that the Illinois Apoalags’| Gas \ it

\ interprets the mandates of this Honorable Court in Bruton ©) \,

a Ay Ws United States,. 391 US. 123, and Roberts v. Russell, 392 AN

» 0.8. 293 to mean automatic reversal without recourse to By

harmless error rules, and it-is immaterial whethey. the ae

& defendunt jtakes- the stand or: not; the judgm is som . :

marily and automatically reversed. im 2. A ae Ae BR ae -

- See also Donald Feliz Schneble and Edward Frank Bnell oe

v. State of Florida, 201 So.2d 881, 1 Sapteme Court of Ftor- ;

‘ida, 1967, —— U.S. —, ——.Ed.24/—, 88 S.Ct. 2067,

. Temanded by this- Honorable’ ‘Court for ee of “the <a Woe

ea Bruton-Roberts, doctrine. pa | .

- See also State of Louisiana v. de T. "Healer inl Job af

‘A. Woodward, Supreme Court of Louisiana, 251 Louisiana

~ 17, 134-187, — U.S. — L.Bd.2d —~-, —— S.Ct.

—~, remanded on Breton Babaets “where each. defendant .

_ Hopper and Woddward gave cross-implicating confessions.

_ That factual situation did not deter this Honorable’ ‘Court

from remanding\ ig.

‘ie finality, this oti tain calls to’ the ‘attention of it this J)

Honoratfle Court that of the cases cited by —w <c. , SE GE

. 4

> . / a

/ y

> "3 P JZ

. ’ / ‘

.v. California, 386 U.S. 18; some-were -

ie prior to this Honorable Court’s decisions in Bruton

4. United States, 391 US. aM, Set Rotel We Duseelt, 302 ee

/UB. 26°. “a

one ‘Hes Pebple +. Flores, 68 Cal. 563, 668, 68 Cal. Rptr. 161, 2

“164, 440 P@2d 233,36 (1968), decided May 9, 1968; Bruton

-« was decided May 20, 1968. The Flores case however alluded -

to the Bruton decision, by way of modification of the origi-

\ <n opinion, and contended that the following language of

: Bruton did .not L require automatic reversal:

“Not every. ‘admission. of inadmissible hearsay or

ofhes evidence can be considered to be reversible error

reo through nase ein hye » (391

jes 123, 1035.).

eo Gali lifornia Si Supreme Court opinion, at 868; of. 68 -

‘563"fails to point out, however, that this Henirsble

_, Conrt went on in.its rer in Bruton to's ‘State sate L. Ed.2d |

j Bai Se 85) : vias - e

“ kWelertheless, ‘as was recognized im: dailies .

"De Wno, supra, there are some contexts in which the .,

"isk H that the jury will not, or cannot, follow: imstruc-»

sis 30 great, and the ‘Consequences of failure so

-. Ufta to the defendant, that the practical and_husnan .

os ken tations of the jury. system, cannot be ignored .

#8 ‘presented here, where: the powerfully —

t g extrajudicial statements of a codefen- ---

~ 4, Who. stands dccused side-by-side with the defen-

dant, are'« iberately arond i ta the fury in a joint

| See BEY VERSED." ———,.—

y \ 3 - - a P - - ~

oy ee a sf * M .

a ° a # ° J 2 ‘ * MAb = 3

a Te

; : 19, .

itz, 401-F.2d 50%:508 (Third *

rule was: applied because all

Circuit, sa the C

’ of the testim ny of the :

Court distinguished Bruton v. Un ted States, 391 US. 123 ‘

from their instant case at bar.

a ae interesting ‘ to note that in United States ex rel. ag

. gon and Cassidy v: Ye egger, 399 F.2d 508, 510-511, the Court

"of Appeals for the Third Circuit granted a Writ of Habeas

retroactivity of the rule of Miranda v. Arizona by this Hon-

-.. orable Court, 384 U.S. 719; while alluding to the possibility

: of the use of the Chemin harmless error rule, the Court

PS ‘concluded on the basis of the facts of the case, the situation

‘was much too critical to risk contemplation, and concluded

that they could not say the error was harmless sede a

reasonable doubt (399 F.2d 508, 511). ;

' Without the mandates. of Roberts'v. Russell, 392 U. s, 93,

the United States Court of Appeals for the Seventh |

cuit reversed without recourse to a harmless error rul

U.S.A. v. Lyon, 397 F.2d 505, 510 for violation of Bruton

v. United States, 391 US, 123;

: . See also U.S.A. v. Kelly, 399 ¥ 28 692, Third Circuit 1968 ;

People’v. Fox, —— N.C: —+, 163 §.E.2d-492;-502-(1968) ;

ite, 212 So.2d 29, 32-33 (Fila. 1968) ; Gelis v.

State, 215 So.2d 86 (Fla. 1968) ; People v. Burwell, 30. A.D.

2d 842, 292 N.Y.S.2d 965 (1968).

Reeth is quick to point out that | the case rélied on by

respondent State of California, United States v. James

R. Hoffa, 402 cd 2d 380, 387 (Seventh Circuit, 1968), for the

| | - theory that limiting instructions, is to o

| alae Mile ished from Bruton; in the se fa case, at

% Le :

come, © Sa 3

x és 3 ° oe :

mee tect A eee alee piaes Si Pes ee 3

“Thee sttement-wore nt incriminating with 16

- dlafendint.”

ges it is clear that Pas precede were ceiakl incrimi-

nating; apparently.no Bruton ¢ error occurred, end. ah issue

could: be handled by jury instruetiotis. Fie Re \

ee Naturally; the Hoffa case cannot even be applied in the ne

- instant case, Harrwgton V. Ralijornia, Be ars

“{ Petitioner-further does not agree with xespondent. State .

| of California that “the language ‘ysed ‘in cases such as ae

' Atwell v. United States, 398 F.2d 507, 516.11 (Fifth Cir- -

” Cttit 1968) indicates no automatic reversal”; it simply fails.

i Just as logical to conclude # that the Court has infefrpd'that .-

_ Bruton and Roberts demands reversal ‘and there~i 413 0 need

| _ to further discuss the error,’ — Ras =: ee

_ Petitioner here shall conclude his brief with the admoni.

tion. to this Honorable Court that there was independent:

evidence apart: fror confession and implicating state-

ments of codefendant William James Evans ‘which could _

adit oie it George William Braton. In 375 F.2d

357, 362, the lower Court recounts the clear eye-

_ witness identification. of Bruton by postal employee Shirley

Piller, plus_the clear identification of codefendant. Evans

iby: both Miss Miller store owner Paul J. Robinson.

\egiat, but this Honorable Court ~~ ~

was quick to reverse totally without r é to Harmless

Error Rules, and without “remarid hie teats considera- _-

oe tion” because the error committed was ‘ “one of the first —

order -of a etints and no want: of ee would save

ae” ‘hirmless error rules,” and without ) nd for *.

? - additional nsi ration not inec : ; with the instant

opinion.” — ae ps ae r \ EM

it,” per the: Honorable Justice Hinge Latayeti Blak, in,

Brookhart v. Janis, 384 U.S. 1. ea eae “’

: “The mandates are clear; ithe ack peak ator the

water brooks (Psalm. 49: :1), petitioner eagerly anticipates —

the mahdaté of this High Tribunal to settle once and for

. all this immensely troubling area of criminal procedure. on

a national level, ‘totally retroactive, without ; ecourge to

‘

* Whe Cases of Bruton v. United States (1968), $01' U8,

~ 198; and Roberts v. Russell (1968), 392 US. 293, Have

"| Beas Resieales gmad Seki Meliadaie - atid Have

Amendment, and There Is Absolutely No Need’to Once

Bay Seay nay eaetorne dines recent Bieits s

The State of California urges this Haoenstle Court to

consider again its d ion to give total retroactive appli-

391 U.8..123, anid Roberts % v. Russell -_ 392.U.S. 293. |

“There is po ‘need whatiseves to reconsider the well rea-

2 , Soned opinions of Bruton v. United States and Roberts v. ie

ae Rinedh, supra. 3

< “Faded: this Honorable Court has once again after Briton io

f and Roherts. eOnsidered the retroactivity-problem..In the _

- . Major™ decision Barber 'v. Page (1968), 390 U.S. 719, ——

L.Ed.2d —~, 88 S.Ct. 1318, this Honorable Court. recog- )

.. mized the violation of the confrontation elause ‘in, the error

of using be henriner enectian tpefitneny. Pa in the”

a . o

= 23 . "ae :

: ee : af - Sa rs . Fa: m7

Sais ‘the 14th |

" cation to the mandates of Bruton v. United States (1968),

Ja Si OT Cee : te :

aS > E 2 meer =

aed eh OEE iy Be 2 *

3 stink siping dn tinea nisin

. -_ the witness, by merely reading that testimony to the jury.

| ‘Thi progedare was, of egurse, held. unconstitutional with

Be Sane Fe Raielene exter. rales, as ,

‘In the late California Donald Rockin: Cah. 3

: . Pont ag Sam OPED » —— LEd2d—,

—— 8.Ct. .—, No. 218, Mige-Oct: Term 11968, this Honor.

‘able Court gave the’ mandates of Barber v. Page, supra, |

; total retroactivity, citing with approval again its reasoning .

. -| Mi Bruton v. United States (1968) 391 U.S. 123, antl Roberts”

oy, Russell, 392 UB. 293. The Court Stated

per Coriam, Ag) \

Petitioner was convicted of robbéry and Wailipping

for-.the purpose,of robbery. The victim, one Carf

» Arthu? Dunston, testified against petitioner. at a pre. !

- liminary hearing; there was evidence that at the tithe

of the trial Dunston was in\Colorado. A state investi-

. __ gator trieg to contact Dunston on the telephone jhe. -

got-through ta'some of Dunston’s relatives and to his

~ employer, but not to Dunston himself, - Although ‘two

telegrams ‘were received, allegedly from’ Dunston, ‘no

al‘

subpoena was served. At trial, the transcript of Dun- i:

ston’s preliminary hearing testimony was introduced-

__ inte evidence. On appeal, the Court of Appeal for the

; Second Appellate District of California held that this

Re procedure did not deny petitioner his- Sixth Amend-

ae, eet solid eh redht ior meyted .corcell

"him ‘ginee ‘Dunston was t from the State of his. -

| “own free will and since 6 counsel had had an

‘Adequate opportinity to eroe examine Dunston at th

préliminaty ‘hearing. —— Cal.App2d ——; 66 Cal.”

2 Bee ais "see). ‘The California Supreme Court,

> ; ¢

. ee?

pias Fh dated cetsdene a besstég/ ip Midh tain: Nineteen -

, ay days later we held im the case of Barber v. Page, 390.

U.S: 719, that the of a witness from‘the juris- _

aa would not jus the use at trial of:preliminary

hearing testimony unless the tate had made a gopd-

faith effort fo secure, the, ’ presence: The sole

. question inthis case is whether the holding of Bafber

i& Se v. Page sho should be given retroactive sa RS RE We

tS think that it should. \

ees Clearly,’ petitionbr’s:ssability te: dross-aamaeia

Peer En ge “stom of trial may have had a significant effect o the

| « mtegrity of the "fact-finding ‘process.’ Linkletter’ v.

a _ Walker, 381. U.S. 618, 639 (1965) ; cf: Roberts v. ryan

gel, 392 U.S, 293 (1968) ; MeConnell v. Rhay, 393 U8.

he _ ——— (1968). As we poitited out in‘ Barber v: Page, one

‘soil important objects of thie right of .confrontation was

., to guarantee .that. the: ,

oi opportunity to assess the credibility

Pe US:, at 721,. And)California’s claim ¢ :

ee. | countervailing interest based upon its reliance on pre- e

| , +Vious standards, see’ Stovall v. Deviho, 388 U.S, 293;

re 297 (1967),,is most unpersuasive. Barber v.Page'was .

t : _ Clearly fo¥eshadowed, if’ not preordained, by » this ge:

Court’s’ decision in. Pointer v. Texas, 380 U8: «

/(1965),-which was handed down more than 'é year

| | before petitiqner’s frial.* Accordingly, we can see

a why Barber v. Page should not be given tally

retroactive application.

Ths‘ motion for leav'to\ prosted i forma pouperis se

_°. and the petition for writ of certiorari are granted. -

The judgment of the Court of Appeal is vacated and.

ae | | the ease is remanded for reconsideration in lighf of

ani _ this Court’s decision in Barber v. Ae, 390 U.S. 719.

2. RRS ee .

+ It is 20 ordered.” - oe

. - * . ‘| vs

: 5 eet : nh Go

1 ~, E Wane a .

. : ae >

a .

‘Itis idxicapiatia’ that this Honorable. Court will not there Pd

im the instant case reverse those well reasoned decisions,

_ indeed, ‘will likely not even consider doing $0; the retro-

_. activity: mattér and issue is truly moot. .

~ “Bonctusions

| For all and each. of the foregoing reasons, aiinints. |

i i ‘ond authorities, supra, in the instant reply brief, as well

—

— » as. the similar inatters ip petitioner’s opening brief, peti- .

e tioner Glenn. Martin Harrington prayerfully and respect-

5 fully petitions this Honorable Supreme Court of the United |

c . States. of ‘America ‘to reverse ‘his conviction; to delineate

and make exceedingly ‘clear on a national basis. the exact.

eaeadiag of Bruton v.. United States (1968), 391 U.S. 123, .

“>. aind Roberts: v: Russell, 392 U.S. 293; to reverse this con-

(>... wietion withodt recourseto any harmless error rule, and to

Ay decree that. such ‘shall . the nationwide consequence of

this decision and Spini m; to summarily reverse without

- further remand to lower courts for further considerations,

* and for such other .and further relief as to this Honorable :

eae Court may seem jdt. Pen taee hes “e.

oan “Respectfully, piers. and “hnmbly submitted at:

Be: Menyet Fels. 2 Ss ite 0h Celiornte,. _ |

ie oe eae -+ . Boasr S. Haxeon oe . -

ce toe, at me Member of the Bar :

Supreme Ceurts of California,

; a roca one, Towa?

Glenn Martin Harrington

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