Amicus Curiae Brief — Moore v. Illinois

Supreme Court brief1972

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No. 6 69-5001 E. ROBERT SEaver.”

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| Supreme Court of the a Stats" 7

-OcCTOBER eo 197 1

LYMAN. A. MOORE, | 7

Te | _7 -Petitioner,

t Us . | ; 7 : —

| -_ | |

PEOPLE OF THE.STATE OF ILLINOIS,

| _ 7 . ».*., Respondent.

4 | é

; . 7 . ° ; : . 9 : ha

BRIEF OF AMERICAN CIVIL LIBERTIES UNION,

ILLINOIS DIVISION, AND ILLINOIS COMMITTEE

FOR THE ABOLITION OF CAPITAL PUNISHMENT

AMICI CURIAE

ERMER (ERTZ

120 S. La Salle Street -

Chicago, Hlinois 60603. -

| . Writarp J. Lassers

-11.S: La Salle Street’

Chicago, Illinois 60603

; _ Attorneys for Amici Curiae —

Peter B. FREEMAN | :

Of Counsel

The Scheffer Press, Inc.—Andover 3-6850

A Tema Nn pata eee THY en ON Np -

Med tet eee

‘Statement of Facta . sdagenslsnuaioxsoesvessasmionens spy ciienssecspostiveisemven’ 1

Summary of Argument ee iuiieciemmeniane . oS

Petitioner was s deprived of due process where— |

A. ‘His conviction was obtained through an identi- ae

fication which State ‘officials knew to be er-

_ roneous; and

RB The State withheld evidence vital to an effective

a defense sessedessseseneeneeneneensens sdeasiniebausansesensevesclusleaseervesiven 8

II. |

Where the deceased was killed with:a twelve-gauge

_ shotgun, the introduction and use of a sixteen-gauge

shotgun, totally unconnected with petitioner or the

‘erime charged, denied petitioner ry asad trial and due

process Of law .........sss ete , A Sissesnisepeeee aetues 32.

Il.

‘The decisions of this Court in Witherspoon. v.

Illinois and its progeny require reversal of. defendant's

Conclusion ne seeeeeeeeeeeeaseeeee Scstusssassscecs eeeeee 45 ; : .

List oF AUTHORITIES

Consrrrutions AND STATUTES

Fourteenth Amendment of US. Constitution sessssees BAL

Ill. Rev. Stat., Ch. 38, Sects. 1-7 19GD). essence iD], 3F

Ill. Rev. Stat., Ch. 38, Sees. -1-7 (1969) ......... spseseeeeenness 21, 39

As PAGE

: CasEs | |

Adams. ¥. Washington, ........ U.S. we» ctassudanie 45 ¢

Aiken. v. Washington, ........ US. pasitexcl anes eee ; icone 45

| “Aleorta.y. Texas, 355 U. S. 28 sores: : sasuvieest tice ees ceaney Oy 18

' . _ Application-of ‘Kapatos;- 208-F: Supp. 883,-888. (SDL.

6 56 ere ae enn mee eee ear a

; Arizona v.. Fowler, 101 Ade 561, 422 F.2d 125

(1967), sscssssasroniore heseanerecsnrenesssoee De cxssecstaastesnetiers 10, 19, 21

‘Ashley v. Texas, 319 F. 2d 80 (5th Cir. 1963)... 30

a Barbee v. Warden, Maryland Penitentiary, 331 -F..

i 2d 842, 846 (4th Cir. 1964) o.ecccsssseeepeeeeed Ly 19, 20, 21, 24

; Berger v. United States, 295 OR. Bey i Pa |. gerne eee 7

j Bernette v. Illinois, ....:..- US. ccscccce cece a ee 4B

* Blackburn v. Alabama, 361 US: 199, O11 eee a seacks 42

_- Bowles y. Texas, 366 F. 2d 734, 738 (5th Cir. 1966) .. 26°

|.” > Boulden v. Holpan, 394 U.S. 478, 481484 ceeersneinne AB |

a Boyd v. United States, 142 U.S. 450, 12 S. Ct 292+ |

: (1892) veces a een eres 34 '

| Brady ¥. Maryland; 373 U.S. 83 ncn, 16, 17, 22, 30

+——- 4 Brooks v.. Florida, 389 U.S: 413, 415° occu

a Brvant. v. United States, 439 F. 2d 642, 650- 651. (D.C. |

Ba Cir. V9TL) creeseteessneeeeneseanesnng Biokashaerass seegeteeccions 24 |

q - Chandler v. Fretag, 348 U.S. "3 csssesantntncheententnetet a. Ol |

| . 7 Childs v. North Carolina, US. speset Sonescactsvipeseazsee a |

Cheatwood v. Colorad6, 435 P. 2d 402 (1968) .......... 5 |

Clarke v. Burke, 440 F. 2d 853 (7th Cir: 1971) ...... ‘a |

Clements’ y. Coiner, 299 F. Supp. 752, 158 (SD. W..4 4

Va. POY sc cecece he cxceeansctencal eeetecte nt erect ean ee - 0 |

iii

PAGE

_ Curran vV. Delaware, 259 F. 2d 707, 712-713 (3rd Cir,

1958) ......... suspdobnsue Chey vavbosactasieestasdesceetclceenesbedaroucsaesignsatinascd Op aoe

Dunean X. Louisiana, Bol US. 145 eee. eoeaeees ee |

-Dupless v. “Louisiana, 2.2... UsSe vecclee celscsscsseghnssssssssseee 45

~--Durley._y.. Mayo, 351 U.S. mm, 285 (dissent of |

| epaiion) sistas | abatesncatecne eaeteaeeestSticistlseteerensnenenalansesinie: Miner seers 16, 17

Evans vV. . Kropp, 254 F. Supp.- 218, 222 (D.C. Mich: _

1966) . aeeeagent $s orpcocarehesssctvelisisesssabueuge-teutscemnetsarasnstocraeel lg oe

Foster v. California, 394 U.S, 442 cacicsssnnenen seesesDy 2.”

Funicello v. New Jersey, ........ | Oe seuitecee OD

Gallegos v. Nebraska, 342 US. 55, 60- 61 sistevessaverrenetys it

Gideon v. W ainright, 372 ie. 335; eset ptieenticlsvesiviuecees 21

Giles vy. Maryland, 939 Md. “458, 212 A. 2d 101. |

(1965), vaeated on other grounds, 386 U.S. 66 ....... 2

Greenbelt Cooperative Pub. Co. v. Bresler, 398 US. =

Oy iessseaseacatcrantuneseuepectegiie fcectacnssteiaygsteansence: possi eeectosendaravsedis on

Hale v. Indiana, 248 Ind, 630, 230 N.E.. od: 492 (1967) ct

sedtavanel Odauusewensaaned nauseaeendvneisets es ene | 71, 20.

Hamrie v, v. Bailey, 386 F. 2d 390, 394 (4th Cir. 1967) ..° 9

Harris v. "Texas, eae US. santedi oer aivletes 45 .

ester v. Florida, 315 U.S. 411, 413 vce eeeeeee 10 :

Illinois v. Bernette, 45 Ill..2d 227, 258 N.E. 2d 93 yO

CTSTO) ccvcruccressdensvavnccovacsies sossseapsensensbocsngesbonssneteunsesneecsesecasess 44

Illinois v.. Speck, 41 Ill. 2d 177, 242 N.E: 2d 208 |

BETIS) itecresesstres te tccsccthsn cera ctancese paeetenescctmeegeereereaessraes 44

“Illinois vy. Tajra, 45 Ill: 2d 227, 258 NE. 2d 793

HO acca cesicn ieccigoecucrestoeessssateaseisnsulecsepniteciearecovidl vayaseesoase =

Imbler v. Craven, 298 F. ‘Sapp. 795 (C.D. Calif. 1969),

affirmed, 424 F. 2d. 6314 (9th Cir. 1970), certiorari

"denied, 400 U.S. S65. cecscccsssssssscsuscesssssisseeeenseeve 10, 15°24

ie Ghia

ra. , PAGE

An re ° Murghison, 349 U.S. 133, 136 otc itis

Jackson v. Wainwright, 390 F. 2d 288, 298 (5th: Cir.

1968) «...... reeset - 18, 21 1,22

‘ Jaggers v. Kentucky, . _US. Goes oes ictimtibewednneute 4

Johnson v. Bennett, 386 F. 2d 677, 680 (8th Cir. ,

1967), 393 U.S. 253, 414 F. 2d 50 (8th _ - 1969) .. —

Klopfer v. North Carolina, 386 US. -21B-<ncsecseseacsecese 21

- Ladetto -v. Massachusetts, tees US. an pesiatecind a)

Levfn ¥. ‘Katzenbach, 363 F. 2d | 287, 291. (D.C. Cir.

1966)

‘Link v. United States, 352 F. 24 207, 212 (8th Cir.

| 1965), cert. denied, 383 U.S. 915 cu.ecsceeeetesgesseessee 21

Luna v. Beto, -395 F. 2d 35, 41 (5th Cir. 1968) (en

banc) (concurring opinion), cert. denied, 394 US.

‘Lyons v. Oklahoma, 322: U.S. 596, 602-603 VA.

-Maxwell v. “Bishop, 398 U.S. 262, 264-266 saesennbivncicassess 42

Maryland v. Giles, 239 Md. 458, 212 F. 2d 101 _ — 10.

McGautha v. California, ........ US. > I S. Ct.

seeeey 28 L. Ed.’ 2d 711 (1971) Ses Meese tinssaneossegesniex 39

McMullen v. Maxwell, 3 Ohio St. od 160, 168, 209 NE.

2, 449, 455. (1965) eens Oe ee seecnneteroren 16

' Mathes v. Alabama, ........ WIS. svecsses sesooseconscussosnseecese wees 450

Mesarosh v. United States, 352 US. 1, 4, sevinssssosooene’, 22.

Miller v. Pate, 386 |. i nce Se en nee ae 128, vn |

-. Monitor Patriot Co. v. Roy, 401 v. S. 265 sepa I

Mooney v. Holohan, 294 U.S. 103 ....... wnesfheisemerea heme : L. 8

Napue v.- Illinois, 360 US. , steedigcbrectna hy, 11, 18

Nash v. Purdy, — F. Supp. 837, 841 (D. C. Fila. ;

"196B) sisssecsccorsesescosaneesaosonssiecscncnnsscconsonnsecoesssnssonsssonsssscosensnees 10

“+ PAGE -

New York Times Co. v. Suiliv an, 376 U.S. 254, 285 ... | : It

People v. Moore, 42 Til. 2d. 73, 80, 246 N.E. 2d 299,

303 (1969) ene Se sE een Se oo ees eee ee 30, 38,.39

"Pemberton v. Ohio, ........ US. ccsssese ssssseeoe eee oat a 45

“People v. Johnson, 35 Ill. 24. 516, 221 NE. 2d 497, -

ON CIGD ars gacbitsn tae taseansgintaupstcss nsinsezsesnt elie etl anes yam

‘People Vv. Smith, 413 mL. 218, 108 NE. 2nd 596, 397 ~s

(1952) ceecessscssssecse. soos. mtnspseeocrseineresetencot ssenigee eee BB, AD.

People v: Hocker, 423 F..2d 960, 964 (9th Cir. 1970) .. 28

Pointer v. 'Bexas, 380 U.S. 400 ier eee 21 ;

Pruett v.. Ohio, -....... Use. & eee. siesiecticads — MB ~

- Pyle v. Kansas, 317 U:S. 213 sie Seaaets \ 0 Lcecsseecsitthy 10, 24

Quintanna v. Texas, Gees, HDs oe ee bees hee ldeeeene. 45

| Segura Vv. Patterson, US. an ees peuess 45

“Simmons v. Fitea States, 390 U.S. 377, 383 pieces 21

Smith v. Florida, 410 F. 2d 1349, 1350- 1351 (5th Cir. |

| 1969) sosenneetuess Spee esepuerescspeesdsiesbatessobsecssms pexevessoneces ssvecteeeel O, 25

Smith v. Urban, 245. Ark. 781; 4340 SW. 2d. 283

Tn ..) eer tere ee oe sen ne re Ee . 21

: Speck v. Mlinois, bess | w U.S. ow... eat haypeeadiccdalaen 45,

Spencer Vi Texas, 385, US. 554, | 563, 87 Ss, Ct. "648 -

CYQGB), *csasastecasccsessescsesticcvieds pest idieneevasennneen oe 33, 37, 39, 40,

Tajra v. Illinois, a a a o - ne en ee 45

Thomas v. United § States, 343 F, 2d 49, 5A. (9th. Cir.

19GB) nas eneeeoeees sonsdpitassasss ostvessedecehtisdeiea wiesnaericealeeutiets yA |

Turner v. Louisiana, 379 US. 466; ATI-AT3 cecccssssseceese 21 |

Turner v. Texas, ...... . US. occu aitadiss pita reatbate cates “45

| Ungar v. Sarafite, 376 U.S. 575... ae eee oo)

RSE a a ee eit FERNY a See Ty ON ne

we ey

: United States’ Ve Keogh 371 si

Se ie ee ee ed

Oe ee oo

UD plea SO ae to es le,

United States. v. Bailey,’ 439 F. 2d 642, 650 , o C.

» Cir. 1971) -4........ a oterettoseainetetenen hogiabnataninabsemepeiebanaay 10

| United States v. Consolidated Laundries, 291 F. 2d.

563, 570 (2d Cire L961) soseeeenraiasnntorsrntneseraun aus 8

United States v. Harris, 331 F. 2a 185 (Ath Cir. |

Be eaten te Be cae Oea ny ee NOT EE, 4

- United States v, , Kaplan, 1 101 F. Supp. 7 (S.D. N.Y.

OB ces "g:

2d 138, 14% (2a Cir,

United tibetan’ ¥. Miller, a1 F. 2a 825, 831-982 (2nd

Cir, 1969) -ceercsseeciseestnnsens ee CB Naps 20

United States ex rel. Miihiedineisy: v. Ragen, 86 F.

Supp.. 382, 390. (N.D. Ill. 1949) ERS ELE EMI FOE 9«

United States v. Soblen 301 F. 24 236, "Cert. denied,

— —_

“/BT0 U.S. 944 (2d Git. 1962) .ccseesueresssenene RNS eG

United States-ex rel. Thompsoy ¥. Dye, 221 F.2d 763

| “(3rd Cir. 1959) certiorari denied, 350 U. S. ae 18.

" site v. Bishop, 295 F. Supp..767 (D.C. Mich. SOT

- affd., 408 F = 1378 (Sth Cit): s.ssccsseeereeeee ie 5

_ Washington y. Texas, 388 US Os BM

. Webb v. Beto, 362 F. 2d 105 (5th Cir. 1966), cert. |

—e 385° U. S. 940, — denied 386 U. S.° |

3 ae

So ae a: Begs PAGE :

Wild v. Cibitin: 187 eo 409, 410 (loth Cir.

1 i mee eC RNe sestesennstennaseesnnsecssnnssescisessssseesssneee 16

- Wilson v. Florida, sini US. Ril alse ee siedellialabuies ae

Wisconsin v. Catley, 32 Wis. oh 79, 145 NE/2a

100 (1966) | ‘aistiainie ciuanaie spicnnlinonionigaiiniasalbenecsiitielsinpciuns “21

ae v. Iinois, 391. US. 510, 515 Mt, 42, 4

Bere iu a "Orne eae : j 4 |

* Diao : “False - or Suppressed Evidence: Why | a

Need for the Prosecutorial mer 1969 Duke LJ.

SATs, SIO WN WF eh ccc SC nchhooeadnty 16

‘Darling, Scintillae. Turis 58° (1877) setatalsebbuseiitees rion 36

Canon 5 of the American Bar Association Canons of ge

., Professional: Ethies °, speteserecevessetennsossssonecengensessenecassersestenee, 2D,

) Goldstein, “The State dad The Accused: ‘Palsens of Ad- —

. vantage in ee Procedure”, (69 Yale C.J. 1149, eae!

ie Hd Vecdvbecteitrckinniceniiarcees shibdalissicikicisactsbeinese 23

} Note, “The Prosecutor’s Constitutions! Duty to veal ete

Eviderice to the Defendant”; 74 Yale 3. 126, _ ae

143 (1964) sesdheeecConneaveensesnnsevessessssnnssecensesen sespeendananenedensndts 0 1 23

° 7? “ iy

BRIEF OF ILLINOIS DIVISION, AMERICAN CIVIL ©

_ LIBERTIES UNION, AND ILLINOIS COMMITTEE

FOR THE ABOLITION OF CAPITAL PUNISHMENT,

AMICI CURIAE

- Amici curiae, Illinois Division, American Civil Libertiés

; ‘Union; and Illinois: Committee for the Abolition of Capital

Punishment, file this brief pursuant to leave heretofore | :

_ granted by this Court. Amici believe it to be necessary

and desirable to supplement what has her etofore been said

by them in their motion and brief in support of the peti-

.-tion for.a writ of certiorari, granted by this Court on

_ specified grounds. ‘They respectfully refer the Court to

their quotion ‘and brief, filed in case. No. 490 Mise. in the -

October Term, 1969. -As there stated, it is essential that

the pee has withheld substantial ‘evidence favor-

. able to the acedsed. path there is sufficient. ev idence of -

such suppression Yo t substantial doubt on the very

guilt of the accused.” n addition, the ruling vf the Court - |

in the’ Witherspoon ease has been ‘improperly thwarted >

| ae by the Illinois courts. Th e and- other points are’ -fullly

4. -- considered hereinafter, ©, |

We would like to ackniow ledge bein of. David

Cook,’ a third vear law student at University “of ;

Calengs, in: the preparation “ this brief. ao

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make it abundantly clear that no accused person a

. aa THE

SUPREME COURT OF THE UNITED S ‘ATES

; OcToBER TERM, 1971

N a 69.5001

“LYMAN A. MOORE; |

_ . ob Petitioner,

3 a rn ls

PEOPLE OF THE STATE OF ILLINOIS, |

_ : | : Respondent.

. BRIEF OF AMERICAN CIVIL LIBERTIES UNION,

IELINOIS DIVISION, AND ILLINOIS COMMITTEE

_ FOR THE ABOLITION OF OAPITAL PUNISHMENT

AMICI CUESAR ” Sat a

a Sn

‘Saabenent of Facts.

In May, 1964, petitioner Lyman .A. Moore. was 5 found a

. guilty of the murder of bartender Bernie’ Zitek in Lansing, ~

Illinois, on April -'25,'1962. At the trial, the state pre-

sented two alleged eyewitnesses, ‘waitress Patricia Hill

and ‘customer Henley Powell (whose physical position in ’

_ the tavern was iiconsistent with his being able to identify

_ the killer) (Tr. 522, 530), who identified the defendant

as: the murderer. (TR. 485-486, 525-526.) A third witness,

Virgle Sanders, testified that on April 97, 1962; ‘Moore,

known. to him as “Slick,” admitted having. shot a bartender -

in — Illinois. — 581, 583-584, 587.) in ee

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of this testimony, two. other witnesses, Robert F. Fair

and William Joyce, identified petitioner as present with

Virgle Sanders at the time of the adinission.’ * (TR. 555, °

602.)

At the time of the trial, the State possessed evidence -

indicating that Virgle Sanders’ identification of petitioner

Moore as “Slick” was incorrect. This evidence consisted

of:: . . _

1. A written statement, signed by Virgle . Sanders,

stating that he had met “Slick” about six months”

before the murder date. (PCR. 7, 12.) :

An FBI report on the prison reeord of petitioner

Moore, also in-the Stafe’s possession, showed that

‘he was incarcerated in. the federal penitentiary

at. Leavenworth, Kansas, from August 23,- 1957

until March 4, 1962, and could not have been the

man known to Sanders as “Slick” ae the time

indicated by Sanders’ statement. (PCR. 8, 12.)*

. A photograph of one James E. “Slick” sari art

early and prime suspect. for ‘whom the police .

initially searched.’ _ |

1Neither witness corroborated the testimony of the--

‘admission itself. Witness Fair merely identified defendant

as “resembling” the man in question. He further testified

to giving. that man and another a ride in his ear, during

which -one of the men (not identified) remarked of .

“trouble with the. bartender in Lansing.” (TR. 605.)

? Lieutenant Turbin of the Lansing Police Department

testified that this material was in the police file, of which

-he had eustody ‘during the course of the trial as - Ae 7

the prosecuting assistant State’s Attorney. (PCR. 5-6.)

‘Lieutenant Turbin was specifically, assigned - to toca

“Slick” Watts shortly after the police obtained the state-

ment of Virgle Sanders implicating “Slick” in the murder.

(PCR. 299-300.) The picture apparently was turned .over

to the State’s Attorney’s office along ‘with the rest of the .

"file. (PCR. 251.)

Y .

——

3. A fopiavie by Vi irgle Sanders, shortly ‘before. his

_ trial testimony, that the man he. knew, as Slick

did not wear glasses and was thirty to forty

pounds heavier than Moore.* (PCR. 130.) |

‘4. The negative identification of. a photograph. of

Lyman A. Moore- as “Slick” by William Leon

Thompso.. in early November, 1962.5 -

5. The identity of another man, Delbert Jones, who .

knew and could identify. “Slick.’’* :

‘This remark was made to an “unidentified Lansing j

police officer. (PCR. 130-131.) It was apparently not com-

municated to any of the presiding state officials, Lien- *

tenant Turbin, or Mr. Mack or “Mr. Fleming; the. prose-

-euting- attorneys. Virgle Sanders had not previously

viewed the defendant for identification during the two

years. period between Moore’s arrest and’ trial. (PCR.

129.) Moreover, the accompanying police officer apparently

allayed any deubts Sanders might have had by replying,

“You know how those jailhouse beans are.” (PCR. 131.)

Cf. Foster v. California, 394 U.S. 42.

> The substance of Thompson’s ‘negative. identification .

. was reported orally by Lieutenant Turbin to Mn Fleming, :

the assistant State’s Attorney in ‘charge of the prosecution °

of Moore. (PCR. 63.) Thompson never viewed Moore in —

person. (PCR. 84.) During the course of the‘investigation,

_moreoyer, Thompson was not asked to identify the police

“ department’s photograph of James -E. “Slick” Watts.

‘Subsequent to trial, when shown photographs of that

suspect, Watts, Thompson gave a positive identification.

(PCR. 80-83.)

®Thie police never atvenpted to: have Delbert ‘Jones

- identify Moore, either through photographs or at a lineup.

~ (PCR. 255, 336-337.) After trial, at. the request ob defense’

counsel, Jones viewed Moore’s: picture and Moore _per-

sonally and said that he was not the man. (PCR. 3383,

337.) Jones did give a positive | identification of “Slick”.

» Watts'as the “Slick” in question when showed a photo-

eae by defense counsel. (PCR. 248-249.) _ .

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These items of information and evidence were not dis-

closed to- the defense or to the court.’ Specifically, -the

statement of Virgle’ Sanders. was never given to. the

defense, despite the prosecutor’s stipulation rior to trial

that he would “ouarantee” disclosure of statements given

_ by prosecution wifnesses at the close of their direct ex-

amination. This representation had been made in’ response

_ to the defendant’s pre-trial motion for the prodiiction

of witnesses’ statements in the possession of the State’s

, Attorney’ s office or the investigating police departments. .

(PR. 27-32.) Prior to the testimony of Virgle Sanders,

the prosecution had furnished, without specific ceuests:

the statements of the State’s witnesses Patricia Hall and

~ Henley Powell, thus complying with its pre-trial agree-

*The ‘opinion of the Supreme Court states that the

prosecutor “showed his entire file to the defense attorney —

relied upon declaration of the State’s brief on appeal

referring to the .testimony given at the post-conviction

shearing by the assistant State’s: Attorney, Mr. Fleming. |

(PCR. 201-202.) Since no reply brief disputing this asser-

. tion- was filed, that conclusion Was understandable. See,

9, Thomas v. United States, 343 F.2d 49, o4 (9th Cir.

1965).

The delivery of the file was, however, flatly denied by

defense attorney Horka to ‘whom it was assertedly given.

(PCR. 230-235.) The trial record supports the testimony .

of defense counsel that the contents of the -file were not

disclosed. Prior to trial, the prosecutor expressed opposi-

- tion to disclosute’ other than the names of witnesses, and

written statements of witnesses to: be given at the close

of direct testimony. (TR. 31-32, 41.) Early in trial, defense‘

connsel requested certain statements. taken by police officer

Koppitz the night of the murder. (TR. 464.) The prose-

-euting attorney futilely objected that these were not among.

the statements agreed upon before trial and were not

admissible. The colloquy which followed makes. clear the

entire file was not shown. aes 465- =)

ment. (TR. 507, 531.)* No pre-trial demand for disclosure :

. covered the other items of infornzation. possessed by the |

State.

Other’ relevant facts are set forth in the argument

hereinafter. . - .

framers of Argument

The constitutional prohibition on the knowing use of

- false evidence in a criminal trial is not limited. to the

deliberate use. of technical. perjury. It applies to any:

demonstrably erroneous evidence which may have had an

effect upon | ‘the otiteome of the ‘trial. This rule is not

limited to prosecutorial | misconduct by investigative ©

officials and the prosecutor’s staff. Proof of both falsity

and the knowledge of falsity may be made by circumstan- —

tial evidence, and it is the duty of. this Court to review °

*It- is clear that the prosecutor had not revealed his —

entire file. The only, other, reference to the .prosecutor’s

file contained in the trial transcript is the comment of the | .

prosecutor at the closing argument. (TR. 951:)

At the post-conviction hearing, Lieutenant Turbin who

acted as the prosecutor’s police assistant during trial, |

testified only that “in the court of law, anyone where they

_asked for a statement was given to the defense counsel

in my presence. Anything that was in our file was given.”

(PCR. 51.) The judge at the post-convietion proceeding

who had also presided at trial, made rio ruling upon. the

_ contention that the file had heen delivered to the ‘defense.

With regard to suppression, that judge simply indicated

that, at trial, no specific requests were made and that,

had' they been made, they. would have ‘been granted.

Since the finding of fact. hy the Supreme Court was 7

based not wpon a ruling by -the ‘judge below assessing

.the credibility of the witnesses, but upon the transcript

“of proceedings, it is not binding ‘upon this court as a

- faetual determination.’ Moreover, in the circumstances,

.that. finding appears to lack substantial support in the

trial record and should, therefore, be disregarded:

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etd) rh irae at wt

that = independently. Proof of the falsity of the

evidence may depend in part on evidence obtained after

trial as well as that possessed at the time of trial. A

conclusion that the State know ingly presented such evi- 7

_ dence should be made when the State officials possessed

evidence ‘incompatible with. the factual vaccuracy of the |

testimony: given at trial. In such circumstances they should ©

not be excused when the suspect testimony proves to have:

been false. |

Even if the evidence fails to support the ‘knowing use

of “of false testimony in this ease, the prosecution’ s failure

to. disclose the evidence violated due process. The evidence

was favorable to the defense in casting serious doubt

- upon the accuracy of an important identification and in

inculpating another suspect. This evidence would have

heen extremely useful to, the defense as well as to the.

_jury at trial. Under Brady v. Maryland, 373 US. 83, the

prosecutor’s failure to show the defense a prior extra-

judicial statement which he had requested prior to trial

placed upon the prosecutor the risk that the evidence -

contained. in’ that statement could be used favorably by

the defense. No request for additional items of evidence,

‘including a non-recorded statement or photograph of an- |

other suspect, should - be required when such evidence ~

could not reasonably be anticipated by the defense. Due

process required the, disclosure of this evidence.

The trial in this case also violated basic notions of fair-

-ness because the prosecution was permitted .to’ introduce

evidence relevant, if at all, only to the punishment of the

- accused and which was highly prejudicial ‘to the determi-

‘nation of guilt. This inherent prejudice was ‘eompounded

when the prosecution permitted both the trial and“appel-

late courts of the State to rely upon the clearly erroneous

possibility that the 16-gauge shotgun could have been the

murder weapon. In § capital case, the defense should not

be permitted to employ évidence totally irrelevant to

proof of guilt to influence the jury. The only evidence

which the constitution can permit is )that which is‘ reason-

ably competent to prove guilt. A state court, no less than

~ the prosecution, cannot justify such action on the clearl

_ erroneous ground that the weapon introduced “might have

~ been” the murder weapon. * |

Finally, even if those sictions do not require & new trial,

a petitioner’ s death sentence must be set aside for violating

the clear: ‘ruling of this Court in ‘Witherspoon v. Ilinots, |

391 U. S. 510. ”

PETITIONER WAS DEPRIVED OF DUE PROCESS =

A. His Conviction Was Obtained Through An Idsntifica 7

thee Whisk Mate Oltidals Know To De Brrohoous;

and

8B. ‘The: State Withheld ‘Evidence Vital To An Effective :

: PETITIONER WAS DENIED DUE PROCESS WHERE

THE STATE USED AN IDENTIFICATION WHICH it

KNEW WAS ERRONEOUS. ,

For over thirty. years, this Court has: recognized the

_principle that the Dué Process: Clause of the Fourteenth

_Amendment will not sanction a conviction obtained through

the use of evidence known to ‘be “false. -

- Miller v. Pate, 386 U.S. 1; Napue v. Illinois, 360/U.S. - |

264; Alcorta y. Texas, 355 U.S. 28; Pyle v. Kansas; .

317 U. Ss. 213; ooney v. Holohan, 294 U.S. 103. ,

“Bhis éowatitational:. prohibition praia apply "whether

‘the false factual assertion ‘is the product of the w itness’

erroneous perception or a deliberate lie. Cf. Miller v. Pate,#é

386 U.S. 1; Alcorta v. Téxas, 355 US. 28. ‘Inguiry into

the subjective state of’ witness’ mind to. determine his |

actual knowledge or belief merely adds a ponderous factual

element which is tangential to due process considerations.

The fundamental concern ‘must lie with the objective

accuracy of the. eV idence presented to the fact finder. The

good or bad faith of the witness in, amaking a factual as- _

-sertion has no. effect upon. the accuracy or inaccuracy wf

. the evidence given. Each may lead to an unjust conviction.

Dee ote

A mistaken ‘deutifiention which is ; tasty. offered

as “truth” impairs the integrity ‘of the system: of justice."

a Proof: of “knowledge” of falsity on the part of the

prosecution is, of necessity, a* speculative endeavor. Only |

in the most. unusual case where the official charged admits.

his direct involvement, can subjective “knowledge” of the —

evidence's fdisity be found with any -certainty.? For the _

prohibition to be an effective ‘remedy. of unjust convic-

_ tions and a prophylactic against governmental foul play, —

at should not depend upon the virtual admission of: the

~ official’s knowledge of certain falsity.’ Where the prosecu-

tion possesses evidence which, if true, clearly .refutes the.

accuracy of material testimony, the test of “knowledge”

‘should be deemed satisfied. A prosecution possessed of

such information, which permits testimonial assertions of.

‘fact to stand unclarified or uncorrected, improperly sub-

stitutes its. own conclusions on the truth and accuracy of

the facts for those of the jury. Use of such testimony in

those circumstances effectively misrepresents the facts of

the case to an extent as great as that gound violative of

due process in Alcorta v. Texas, 355. U.S. 28, or ariel v.’

Pate, 386 U.S. 1. ae. | : ; s

<4 es Mca ¥. Bailey, 386 F.2d 390, 394 “(ath Cir. 1967);

| _ ef. United. States -v. Kaplan, 101 F.Supp. 7 (S.D. NY.

1951); see generally Carlson, “False or Suppressed Evi-

dence: Why a Need for the Prosecutorial.Tie?” 1969 Duke ~~

L.J. 1171, 1186, note 42. But cf. Johnson v. Bennett, 386

F.2d 677, 680 (8th Cir. 1967),. vacated and renianded on ~

-.:other grounds, 393 U.S. 253, reversed on other grounds,

_ 414 F.2d 50 (8th Cir. 1969). : -

##.g., Napue v. Illinois, 360 U.S. 264 ; Alcorta v. Texas,

355 US. 28; cf. Miller v. Pate; 386 U.S. 1. V

. + See United States ex rel. “ai taal fe v.. ~: Ragen, 86

F.Supp. 382, 390 (N. D. Til. 1949).

.! Ye see ony fe Aes. ae

meh ee, fey —10— Se ee

Z . . |

Sucha test for prosecutorial neil does not impose

undue. burdens upon the prosecution.’ Due diligence in the -

investigation and. preparation of a case will bring these

-facts to light. Ordinary intelligence is alt which is neces-

sary to, ascertain their weight. A‘ fair and impartial con- —

cern for justice, rather than a. myopic quest for convic: °

tion, should ‘lead the State to recognize that presentation |

of such. Witness’ testimony ‘creates a significant threat to

et the accuracy of the factual determination upon which guilt

or innocence rests. Where ample notice of a real risk of

- false evidence exists, the prosecution ‘should not be per- \

mitted to avoid the conclusion of “knowledge”. of the «

falsify of that evidence. : :

Moreover, inquiry into the prosecution’s knowledge ”

\ the falsity of its evidence must not cease wit the actual

-\\ knowledge of the prosecutor. In Py yle v. Kansas; 317 US.

\213, this Court held that the due process ican would ‘be |

Violated where the wrong was done by “local authorities”

and, “State Police,” even though the prosecuting \attorney

at trial was ignorant of the ,perjured character\ of the’ —

cricaahs peoeeted at. trial. Cf.'Hysler v. Florida; 3 5 U, S.

41}, 413 “Ns Judge. Sobojoff has observed:

The police are also part of the prosecution, and the

taint on ‘the trial. is no less. if they, rather than the

\ r of A a —

* See, e.g Dh ed States -v. Bailey, 439 F.2d 642, 650

(D. C. Cir. 97971); \Curram-v-- Delaware, 259 F.2d 707, 712-

"913 (3d Cir. 1958) - United States v. Consolidated Laun-

' , dries, 291 F.2d 563,570 (2d Cir. 1961) ; Smith. v. Florida,,

410. F.2d 1349 (5th Cir. 1969); Imbler v. Craven. 298°

F.Supp. 795 (C.D. Cal, 1969), affirmed, 424 F.2d 631 (9th -

Cir. 1970), certiorari denied, 400 U.S. 865; Nash v. Purdy, ©

283 F.Supp. 837, 841 (D.C. Fla. 1968); “Evans v. Kropp,

254 F.Supp. 218, 222 (D.€. Mich. 1966) ; Maryland: v. .

Giles, 239 Md. 458, 212 F.2d 101 (196 ); Hale v.-Indiana,

‘248 Ind. 630, 230 N. E.2d 432 (1967) ; Arizona v. —

101 Ariz. 561, 422, F.2d 125. (IPR). |

\b-

Bae

| is my

State’s Attorney, were guilty of the nondisclosure. If.

the police allow. the State’s Attorney to produce evi- |.

‘dence pointing to. guilt without ‘informing himi’ of

other evidence in their possession which contradicts

this inference, state officers are practicing deception

not only on the State’s Attorney but on the, ‘court and

- the defendant. eis a“ °

. Barbee v. Warden, Mergent Penitentiary, 331 F. 2d: 842, )

BAG (4th Cir. 1964). aie 2

The ultimate , determination of the falsity of the evi-

_ dence dnd the State’s knowledge of that fact rests with

this Court. In Napue v. Illinois, 360 U.S. 264, 271- 272, this:

cigs observed that :

[t]he duty of this Court to make its own independent

’ examination of the:record when federal constitutional.

: deprivations | are alleged is clear, resting, as it does,

on our solemn responsibility for maintaining the Con-

stitution inviolate. Martin v. Hunter's Lessee,

Wheat.’ 304 ; Cooper | v. Aaron, 358 US. 1" eee

iw dutetuiuaiion of the truth ¢ or falsity of. testimonial he

evidence involves the balanced conclusion of probabilities:

In this case, the evidence renders it “most probable” that

f Virgle Sanders’ trial identification of Moore as “Slick” |

was’ factually erroneous. Had the jury known that Moore :

was in prison when “Slick” was previously seen by Sanders, F

the jury might well “have concluded, as indeed it should

have, that Sanders was wrong, Moore might well have |

been acquitted, as, again, he showd have been m the cir-

cumstances. ees Oe ee

* See ae e.g., as Oklahoma oma, 2°68 596, 602-603;

Gallegos v. Nebraska, 342 eh S. 55, 60. Brooks v. Florida, ‘

389 U.S. 413, 415. Cf., e.g\, New "York Times Co. v. Sulli-

van, 376 US. 254, 285; Greenbelt Cooperative Publishing —

Co. v. Bresler, 398 US. 6; Monitor Patrvot Go. v. _—— 401

Ue 265. :

”

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etn, Ja .

hae

. » >. . 7 7 .

. y° ‘eo ‘ : :

a >" _ ‘@ . »

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\ ;

* >

a * . * . \

‘ ’ * \S , 7 « as

. ‘ » . ‘ > '* é

—\ ye a ‘ woe .

. = —12—

’ mi\ iv. a * ; B _ " ; | /

. Taiquiry into the falsity- -ef ‘the witness’ testimony is? ft -

- not: confined to facts established at ‘or prior to: trial. See; . |

aT ‘Miller v. Pate, 386. U.S. 1,5; ef. Blackburn’ v : AJabama,

met’ “Slick? : é

6 86E U.S. 199; 211. Sgte PS eis.

Sanders’ ini al, tibia: ‘statement to police ascribed his |

: fir} meeting with. Blick” toa time well before Moore-was |

from. federal prison. ‘His testithony at the post:

generally confirmed the’ “fact”. that Sahdets:

roximately six months before the murder,

‘and. four month before: La yman Moore's release. from

* Leavenworth. ye! ot 7 ae ak

‘At- the end: ot ‘his <POSS- -examination, Sanders. admitted |

~ his erfor:. at et BE ae oe Aes | |

7 “ — -Q. aaa. did you ‘tell me and also’ later on, “did y you —

tell the policeman from the’ State’s Attorney’ 's Office

“*. that if you, had known that this fellow, _ Lyman Moore,

was in-the Federa’ ‘enitentiary until: ‘March 4,-1962,

you would definitely not have identified him as’ being

| Slick. that. you-knew? ae ae

ie ‘AL If he’s in. iail, it would. have been: impossible

to be. the samé man. «

(PCR 133.) . Sia

The a. igh “impossibility of a. correct identification ‘of fe

‘Moore as “Slick” suggested by that inconsistency is cor-

~ roborated by Sanders’ erent aa of. physical dis-. i

. erepane’ »S in*weight> ..: gS 3°5\

‘

Sanders was also unable! to reach : any!" definitive con- ©

clusion with Tespect to Jantes’ E. “Slick” Watts:

ae at > Q, ae am now going to show you. a ‘picture, which

cad -

° o *

re eae 2) 2 é oriwke

‘ Sshapi gc mee teal wee EOS

“ngs been’ admitted here as Petitioner’s Exhibit 7, and

- ‘Lask you if that is a picture of Slick. Tell'the Ji udge to .

" the: best of. your. ability, is- that Slick?

. A. Pm going’to tell you, the truth, Your Honor.

: I 1,jant nenontty:4 —_— know. ‘The guy |S bers” had a

7 mag ae

| beach hiivenk, but’ it was long, ‘and this guy isn't. It's

more of a round face.

Q. You. don’t know. for. sure if this-is him, and you —

- can’t say it isn’t, ‘can you.’

AL That’s s right. . _

- Q.: You can’t ‘say either sway? |

- AY That’s right. ae

: (PCR- 134.) +

Additional potitation of the’ “ide “iaiciton caists in the

form of the negative identifications supplied by William

of “Slick.” The record of =the post-conviction -hearing

fu ther reveals that both Williawn Leon hompson and

. as: “Slick” was: erroneous.

63.) / eS a = er. . °

~The record alsé dise ‘loses. that, at the time of ‘weak

Sanders’ testimony was false.

The’ umooatiadietha testimony at the post-conviction

hearing indicates that the State’s prosecutor possessed

and was well aware of V irgle Sanders’ statement. Mr.

Fieniing testified that he read Sanders’ statement ‘tovhim -

“during the course of pretrial preparation. (PCR 201.). In

addition, the prosecutor’s file. contained the FBI report

on the defendant’s -reedrad. (PCR 6.) The- record also'estab- -

lished through the uncontradicted: testimony of Lieutenant -

’ Turbin that the prosecutor, had been informed that William °,

~ Leon. Thompson had beer unable to: identify Moore as |

-Leon Thompson and Delbert Jones, the other acquaintances :

Delbert Jones.’ identified Jame. DE Watts as the same _

“Slick” who frequented | the bars’ in that area ~during’ the’.

fall of 1961. (P.C.R. 76-77, 83-84, 246, 255.) Added to the ’

evidelice supplied by: Sanders . himself, this testimony

clearly establishes’ that Sanders* identification of Moore

trial, the State offic ials present at that proceeding * pos- |

sessed evidence from which they anust have inferred that:

‘

“Slick, . although he was S acquainted” with “Slick.” Ad

1 LOO I LL OTROS OR

q ,

Leng remy a .

J i se a i ae o

4 és ’

—i4— et a

Lieutenant Turbin of the Lansing, Illinois, Police De- _ |

.partment was. present at the trial itself as a. member of |

the prosecutor’s staff. Acting-as the advisory inv estigating

police Officer, it was his responsibility . to counsel the

prosecutor on factual matters, including calling to the

prosecutor’s attention pertinent factual omissions. (See |

"PCR: 198-199.) He handed the assistant State’s Attdrney

relevant documents from the prosecution’ s file: (PCR 199-.

200.) He admitted that he was familiar with the contents

of that file, including the items at issue on this _Sppeal.

(PCR off. )

Turbin was instrumental in. the investigation of | the i

murder of Bernie Zitek from: its inception. He was initially oe

assigned’ to ‘locate the original suspect, James KE. “Slick”

‘Watts. After that investigation foctised ‘on_ petitioner

_ Moore, he assisted in the preparation gf the prosecution’s t

‘ease. During the -preparation of that case, he attempted: |

to obtain evidence substantiating the potential identifica:

tion of Moore as “Slick” by Sanders and was aware that

Thompson had been unable to corroborate that identifica-

tion. Turbin -was also present when Sanders-remarked on

the weight» discrepancy. (PCR 130.)- By ‘uncontradicted

testimony, he was also present at the trial. \

The pivotal question in: determining the ee

of the prosecution in this case is ‘whether any state official

can be inferred to have known, or held to knowledge of,

the fact/that Virgle Sanders’ statement to police indicated

that he met “Slick” at a time when Moore was imprisoned. 2

' If knowledge of that “fact” can be ascribed to the State,.

the’ combination of that element with other information

- known to the prosecution. should be held sufficient knowl-

edge of falsity to constitute a. depial of due process.

_ Knowledge, : whether actual pr ‘presuined as. a matter of.

‘law, in this case requires the combination of the knowledge |

— 15 —

of the criminal record of Moore. with the facts contained

‘in Moore’s statement. Both the prosecutor, and certainly

Lieutenant Turbin, may be presumed to have known’

Moore’s prior confinement: by virtue of théir possession of

the FBI record. Especially with respect to Lieutenant Tur-

bin, this presumption is fortified by the inferences at-

tendant upon long and. intimate association with the in-

vestigation, both prior to and after Moore’s arrest. Dur-

ing virtually the entire investigation of Moore, the Lansing

Police possessed that record. The importance of Sanders’

. testimony and his identification 2 Moore as “Slick” led |

the prosegution to seek ‘additiofal corrohorafion from

Thompson. Only by willfully disregarding the material in —

its own file could the State have failed to be aware of -the

fact that Moore had been in prison at the time Sanders

claimed to have met “Slick. an 3 7

As Judge Ferguson | stated in Futter v. Craven, ‘298

F.Supp. 795, 807-811 (C.D. Cal. 1969), affirmed 424 F.2d |

631 (9th ‘Cir. 1970), certiorari denied, 400 U.S. 965:

“While the prosecutor claimed not to have dis-

believed these outright lies, he -clearly had. cause to -

suspect them. The reckless use of highly suspicious |

false testimony is no less damaging or culpable than -

-the knowing use of false testimony, and a conviction

based upon such evidence must suffer the same cqn-

——— | |

. : * * :

«* * * The prosecutor either had reason to believe

or in fact knew that each item of evidence * * * was

- untrue. The state cannot now disclaim - knowledge of

such falsity on the ground that its agent, the prosecu-

tor, ignored the facts before him or that the investiga-

. ting officers failed to disclose those ‘facts to him. Due

process -of law does not tolerate a prosecutor’s

selective inattention to such significant facts. It re- —

. quires that he exercise good = in prosecuting. ‘that

SADR ee EMRE Aa

. ‘

shai a

‘ ease. Such good faith is not fulfilled where the prosecu-

tor allows his witness to give false ‘testimony of which

he has advance knowledge and the accuracy. of which

he has. reason to suspect. The duty of--good faith

is not merely a. negativ e one, to omit from one’s case

outright lies. It imposes as well an affirmative duty to

avoid even unintentional deception and misrepresenta-

tion, and in fulfilling that duty the prosecutor must

undertake careful study of his case and exercise

diligence in its preparation, particularly where he is

confronted with facts tending. to cast doubt upon his

witness’ testimony. The prosecutor’s objective is

. justice ; his role is not t that of a mere advocate.’”

| B. The State’s Failure to Disclose Favorable Evidence

; . to the Defense Violated Due Process -

1) = =The Prosecution Withheld the Requested Extrajudi-

cial Statement of Virgle Sanders in Violation of. Due

Process of Law. |

In Brady v. Maryland, 373. U: S. 83, the aeodey: ‘of ‘this

Court reviewed-its ‘earlier decisions touching on suppres-

sion of: evidence and declared: approval for the rule a

“See also’ Wild v. Oklahoma, 187 F.2d 409, 410 (16th

Cir. 1951) (dictum indicating that the ‘Constitution. is“

ceclatad by use of evidence which is false and whith the

state “had reason. to believe was’ false or perjured.”) ;_

McMullen +. Marwell, 3 Ohio. St.-2d 160, 168, 209 N.E. 2d

* 449, 455 (1965) (holding that where “the prosecutor knows .

_or has good reason to believe that ‘the testimony is false. *

he must either disclose the’ falsity fof the testimony or

make available to the defense the njeans to"do so.”)

It has. been persuasively areal that. the requirement

that state investigatory or prosecutor ial officials know’ of

the falsity of the evidence at the time of trial should: be

dispensed with., Carlson, False or Suppressed Evidence:

Why the need for the Prosecutorial Tie?,: 1969 Duke Law.

J. 1171, 1185-1186. See also, Durle ‘YN. Mayo, 351 U.S. 277).

285 (dissenting opinion).

We now hold that the suppression by the prosecution

‘of evidence favorable to an accused upon request

violates due process where the evidence is material.

‘‘either to, guilt or to punishment, irrespective of the ~

- good. faith or bad faith of the proncemnd 393 US. |

‘at p. 87.

In Brady, the defense had made a pre-trial request for

the extrajudicial statements of an accomplice. Two signed

statements were produced, but a third unsigned statement -

was withheld; assertedly on the ground that it: was not

_ admissible:

‘The facts in the instant case are. not materially dis-

tinguishable. Here, the statement of Virgle Sanders was

never given to the defense, despite the prosecutor’s stipula-

tion prior ‘to trial that he would “guarantee” disclosure |

of statements given by prosecution witnesses at the close

of their direct examination. This representation had. been’

made yin response to the defendant’s pre-trial motion for

the production of, witnesses” statements in the possession

‘of the State’s Attorney's office or the investigating police -

departments. (TR. 27- 32.) Prior to the testimony of

Virgle Sanders, the prosecution had furnished, without

specific requests, the statements of the State’s witnesses

Patricia Hall and Henley Powell, thus complyi ing with its

"pre-trial agrecment. (TR. 507, 531. )° :

In these. circumstances, the failure of the defense to

repeat its request during the trial itself with specific re-

ference to res Sanders’ statement. should not €xeuse -

The defendant also filed other broad demands for the

production. of evidence in. the prosecutor’s possession, in-

“eluding “Police station complaint -book, to and from re- ”

ports, lock-up keeper records, and all other reports and

documents in connection with the above indictment.” These

. Fequests were denied. (Common Law Record 54-56).

-— 18 —

the suppression of that statement. The purpose of a re-

_ quest is to alert the. prosecution of the ‘pertinence and

need of the information for the defense. United States v.. |

Keogh, 371 F.2d 138, 147 (2d Cir. 1968). |

Assuming that the prosecution was justified .in withhold.

ing the extrajudicial statements until the tr ial itself, it ean

“make no. contention that it lacked notice in this case. The

prosecutor had already supplied the statements taken ‘from

the preceding - ‘identifying witness without any: additional

~ demand. His failure to supply Sanders’: statement might

well have been ‘construed’ by defense counsel to indicate.

that there Wwas-in fact ‘no statement. in the State’s ‘posses-,

“sion."? The State should not be exeused for-failing to com-

ply. With its admitted duty -because the defense did not

- specifically remind it of that fact at every corner. The

risk of error in failing to -disclose the statement must be

» placed on the shoulders of the prosecution.

The Statement of Vitgle. Sanders contained evidence

favorablé to the accused and was material to the determi-

nation of his guilt. No distinction should be-drawn between

the prejudice required to set aside a co viction where the

State has improperly withheld eV sn demand ‘and »

other improper. government » handling of. evidence. The

absence of this evidence “may have had.an effect ori the

-outeome of the trial.” Napue v. Illinois, 360 USS. .264, 272.

- it tended: to. diseredit the identification of - Moore: by

Sanders, and the jury “might well have” mae ‘Moore's s

alibi defense. Alcorta v. Texas, 355 Us i. ae |

diss Compare United States ex oe, Thompson v. Dye, 221

F.2d 763 (3 Cir. 1955), certiorari denied, 350 U.S. 875;

- Jackson v. Wainwright, 390 F.2d 288, 298 (Sth Cir. 1968).

ae .. . rug . e at

denied, | 386 U.S. 930.

2) The Aheonss of a Request Did Not ot Justify the State’s

Failure to Disclose Evidence Significantly Favorable

and. Useful to the Determination of Guilt.

Defense counsel’s failure: to request disclosure of the

-reifiaining’ items of evidence in this case should not fore-

_ close the conclusion that the suppression of that evidenge

_ rendered. the triaMunjust. Considerations of fundamental —

fairness to the accused particularly in a capital case, as

well-as practical realities bearing upon a request for dis--

closure of evidence, militate against making such a request .

the sine qua non of a constitutional rule.

_ The disclosure of ev idence should not hinge idabiateety

_ upon the ability of the defense counsel to anticipate or

surmise the wide range ‘of possible favorable evidence

which the State’s inv estigation may have uncovered. Where

the circumstances .of the case make it unlikely that the

defense could anticipate or guess and request disclosure

of the evidence in question, it would add to the unfairness

_of the trial to penalize the defense for its. failure to make - -

a request. In guch circumstances, -speculation over whether

the defense might have ascertained the evidence or the. -

possibility of evidence should not outweigh the fundamental :

concern for a fair trial.” Automatically to excuse official:

-from an penenhos imposed ss them by reason of their -

’

bs See, €.9.; isd in Vv. ‘Tete: 363. F.2d 287, 291 Ww. C.

Cir 1966) ; United States ex rel. -Meers Vv. Wilkins, 326 F.2d

» 135, 140 (2d Cir. 1964); Barbee v. Warden, Maryland

Penitentiary, 331 F.2d 842, 845-846 (4th Cir. 1964) ; Ari-

zona v. Fowler, 401 Ariz. "561, 422 P.2d 125 (1967) ; ef,

a United States v. Soblen, 301 F.24 236, cert. dénied,

370 U.S. 944 (2d Cir. 1962); Webb.v. Beto, 362 F.2d 105

(oth Cir. 1966), cert. dertied, 385 U.S. 940, rehearing denied

(Sth Cir. 1966}, cert. denied, 385 US. 940, rehearing

s “ap eiotere pores

“superior knowledge jin such circumstances is inconsistent

with the very rationale which creates that duty. Such: a’

requirement would place an unfair burden upon the de-

fendant which is not commensurate: with the relative abili-

‘ties to obtain evidence of the state and the accused. Even

where a request on lend assistante to the prosecutor in,

ascertaining or infuring the disclosure of favorable evi-

_dence, the very. ignorance of the accused would render it-

impossible - for the defense to know what to. request in_

order to- remedy its ignorance. This is especially true in:

light of the narrow scope. of pre-trial discovery: A request

may thus become a substitute for discovery, or a game of

| wits playéd by opposing counsel. ~ -7:

A request should also be unessential where it would: have

*. been‘ futile. Thus; where the evidence has ‘been withheld ’ ws

‘. from the prosecutor himself, a request for. its disclosure ,

would in all | likelihood he - -unavailing.”” Similarly, where

the State itself has not obtained the evidence until late in»

’ the proceedings, the failure of the defense to request the.

“item in question should not preclude itself. So, also, events

whieh occur during the prosecutor’s preparation. or at the |

trial may serve the purpos® of the request by flagging the

“evidence for the prosecution.”

Absent a request, due process considerations neverthe-

less require a State to disclose evidence which, in the eir-

* E.g.,. Barbee v. Warden, Mary ond Penitentiary; 331

F.2d 843. 846 (4th ; see ents v. Coiner, —

299 F. A758 (S.D. W.\ a. \1969).

; * Ea... United States v. Miller; 411 F.2d 825, 831,832 2d

‘Cir. 1969).

oe rs,

ae 21

P r ‘

cumstances of the case, is highly fav orable and useful to.

the. ‘defense on material issues of guilt.

The ‘goal of the criminal process, culminating in an

adversary trial, is the determination of factual truth: The

~ concern for the accuracy of the ultimate factual determina-. .

tions upon which a convietion rests lies at the heart of the:

notion of fundamental fairness embodied in the Due Pro-

eess Clause of the C onstitution. ‘©. The Constitution’ guaran- i

tées the’ defendant determination of: these issues by an

impartial and informed tribunal, judge - -or jury. In re : tt

Murchison, 349 U.S. 133, 136; ‘Turner v, Louisiana, 379 ao

" US. 466, 471-473. Where .state officials; prosecutorial or ._

investigative, withhold material evidence favorable to thé.

° Big., Levin ¥. Katzenbach, 363 F.2d 287. (D.C. Cir. 2

1966) ; U nited States ex rel. Meers Vv. Wilkins, 326. F. 2d ‘2

135 (2d Cir. 1964); Barbee v. Warden, Maryland Pemiten-- :

‘ tary; 331 F.2d 842 (4th Cir. 1964) ; Jackson v. Wainwright,

390 F.2d 288 (Sth Cir. 1968) ; Clarke v. Burke, 440 F.2d .

.853 (7th Cir..1971) ; Thomas v. United States, 343 F.2d 49 —

(9th Cir. 1965) ; Arizona v. Fowler, 101 Ariz. 561, 442 P.2d--

125 (1967); Smith v. Urban, 245 Ark: 781, 434 S)W.2d 283°.

(1968) ; Hale. v. Indiana, 248 Ind. 630, 930 N.E.2d 432

(1967) ; Wisconsin v. Cathey, 32 Wis.2d 79, 145 N.E.2d 100 . ©

(1966); Link y United States, 352 F.2d 207,. 212 (8th Cir.

1965), cert. denied, 383° U.S. 915.

6 See, C.9., Foster v. California,. 394 US. 440; 442;

Chandler v. Fretag, 348 U.S.-3; ef. Simmons v. United

' States,.390 GS. 377, 383; Ungar’ v. Sarafite, 376 U.S. 575.

Many of the guarantees set forth in the Bill of Rights and,

made recently obligatory upon states through the Four-. — |

teenth Amendment’ s Due Process Clause reflect this prin, |

ciple. See, e.g., Duncan .v. Louisiana, 391 U.S.. 145;

Washington v. Eircr 388 U:S. 14; Klopfer: v. North Ca-

rolina, 386. U.S. 213; Pointer v. Texas, 380 | US. 400;

‘Gideon v. Waine right, 372 US. 335.

ye A | ; Re 4

DHAEST EMANUEL ol Prep ao uenne et aamnane ome Mare 6 res ws

2b. 3

_ + «@ ° ‘

. . . a

defense, they assume a role of fact-finder which the Con- -

stitution reserv es ‘for others. Their, action ° directly

threatens and -impairs the accuracy of the determinations :

to be made. The concealment of sueh evidence, whether in-

volving active misrepresentation or passive non-disclosure

of exculpatory evidence, places the prosecution “in the:

role of an architect of a acetate that does not comport

with standards of justice.” eee y VY. Maryland, 373 +.

73, 88. st ete

The position of State P¥osecuting and investigative offi:

= cials imposes upon them a duty, not simply to conviet, but

4 - to see that’ justice is done. Cf. Mesarosh.w. -Umited States,.

"352 TLS. 1, 14; Berger y, Onited States, 295 U.S. 77, 78."

They cannot sak upon the defendant to obtain and produce

_.. at trial the full range - -of evidence contradicting proof of

' guilt. As Judge Palmieri observed in Application: Of.

Kapatos, 208: F. Supp. 883, 888 (S.D.N.Y.). ee 4

The purpose .of a trial is as much the acquittal of on

innocent person as it.is the conviction of a guilty one.

The average accused usually does not have the man-

y power or resources available to the state in. its in-

3 vestigation of the crime. Nor does he have: access to

. all of the evidence, much of which has usually been

_.. Femoved or obliterated by the time he learns that he —

‘ is to be tried for the erime. In vtew of this disparity

between’ the pia gr powers of the-state ‘and the

Rg ac gg Ss ‘4 not think it imposes too onerous a. -

ns aes: on - state to -require it to. disclose the /

————

Bas ¢ Canon 5 of the American, Bar Association Canons

of Professional Ethics: “The primary duty of a_lawyer en-,

gaged in public prosecution is not to. convict, but to see

that justice is.done. The: suppression ‘of facts or the secret-.

-ing of witnesses capable of establishing innocence of the

4 a -aecused.is highly reprehensible.” See also Jatks

! Wainw right, 390 F.2d 288, 294-295 (5th cir. 1968).

Ms . : .

- ip af 4

a r "

| —23— -

oe eee ’ :

existence of a witness of the significance of _.

~\ in the instant éase.’® ay . :

\ The duty of the State to -disclése evidence fay orable and

_estential to thre defense acknowledges - ‘that imbalance. Its . ~

impact upon the defense is parainiount where, as here, the

alleged crime isa capital offense. See Curran v: Delaware,

259 F.2d 707, 711 (3d Cir. 1958): | aa

The fous must be on the hcdaces of the evidence iad ; :

its potential impact on the factual conclusions of the trial. =x .

‘This focus is of particular pertinence where the evidence ~ ' : :

“in question contradicts or casts doubt upon the truth of © i

evidence presented by the Prosecution. In such instances,

the duty of disclosure is reinforced by the prosecutor’s ’.-

- responsibility - for ‘thé trath of the. evitlence which . he .

presents. Even though ‘the State may lack certain proof ;

' that testimony is false, it should be obliged. to disclose } :

evidence which ° substantially undermines or refutes the ~*.

evidence which it submits. #5

In. light of these considerations, ‘the’ failure of the de- Fs

* fense ta request disclosure of the evidence in thi§ case _ a

, Should not be dispositive of his constitutional claim. The a

. refusal of the prosecutor to supply Sanders’ extrajudicial

statement prior to frial effectively foreclosed the defense’s

_ability to ascertain the pertinence of “Slick” to the -case

or the existence ‘of “Slick” Watts as a -suspect.- Although

a list of. potential Witnesses were supplied, there is nothing.

—* suggest that defense counsel should have been expected

to ascertain from those witnesses any of the _evidence at

‘ee here. There is no suggestion that: defense counsel,

2 See ; also Gcidetin: The State and the ‘Accused: Bal-

lance of Advantage riminal Procedure, 69. Yale 'L.J.

1149, 1192 n. 1; Note Phe Prosecutor’s Constitutional Duty

to Rei Evidenceto the Defendant, 74 Yale L.J. 136, 142- .

143 (1964). pee Dk , Se

e > ,

. + “

s . ( 2 . is A .

. - ) ;

. : . , = $ ; eee

bs ~*

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ee i

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a ight thane Ee Mis Chery Ey “ ‘

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sol Reiabal ey

: of tle oral statement.of Virgle Sanders

ee not be. dispositive. Such a request would, in all likelihood, ©

- have been futile, Moreover it occurred at such a late stage .

- @ ‘ -

ni i ii Sate RRR GS PLDT LS So

i .

eon Thompson.’ ” .

_ Similarly, the failure of the |

off (

ise to rejjuest disclosure

in the proéeeding’ that it would be unfair td expect the -

defense to investigate such/an occurrence.

& ‘The Requirement of Disclosure ~ of -Paverable ‘end

‘Useful Evidence Applies to All: State Officials Con.

nected With the Prosecution

tt should. also be irrelevant that some or all of the

fav orable evidence was not possessed by the prosecutor as

ar such, The requirements of due process ‘apply td all State -

' + officials. The suppression of evidence by the State’s-im

“vestigative officials or -prosecutorml staff prejudices the

defendant’s ability, to obtain. an accutate determination |

of the facts of his case ‘to. the same degree as suppression...

re by the , _prosecutg OF. himself... LATER reg PRM GS vat

| Thus, in Pyle v. Tames. S17 U.S: 213,: “thls Court held

that due process was violated w bik swank cial know-

ingly” used prejudicial testimony and deliberately | sup-’

presséd evidence: fav orable to the accused: Where the

State official is involved in the’ in: estigation of: a crime .

or the préparation df the case, ‘he i is a: part of: the “prose-

ention,” and favorable ev idence wltich is in his possession

_. rather than the prosecuting ‘attorneys should. be relevant }.

to a° determination of t he fairness ‘of the trial. .

* Barbee, v. " Warden, 331: Pa 842, 846.847 (ath Cir:

1964); Bryant v. United. States, 439 F.2d 642, 650-651. ~

ADS. Cir. WTR); Imbler- v. Craven,- 298 F. Supp 795

— Cal. sis affirmed, 424 F.2d saes8 (9th Cire 1970),

as given by Willian~

the ‘trial should |

ee oa hreremnry

: “ | . r : \ i : i ay z : * 'e > 3 ¥

= ~, a <> ‘

-."The*fanction of inv estigative officials i is to tilesver | the

facts. Clearly, their r duty is not to convict but to ascer-

- tain the true facts. To an .eyen greater extent than

the prosecutot, their position during an investigation, thus.

requires impartiality and candor. The very ability of the

-. prosecutor to function properly depends upon the full

‘disclosure by the State’ s inv estigators not only of: evidence

~ which inculpates: an accused, but of evidencé . which is

‘inconsistent. with guilt and which derogates from proof :

_. of guilt. Lacking such information he. cannot make a truly

* informed decision -to prosecute. Nor: a 2 prosecutor

effectively direct the final — 2

of thé State’s case. Fas ae a oe

“presentation

Implementation of the ‘prosecutor’s duty ‘to disclose

-evidenc@Qphich is materially favorable .ta an accused

Strengthens. the neeW: for disclosure by- the police, The —

rationale upon which that duty rests ..is the ss / :

Of the State, through ‘its inv estigative. forces to acquire®

knowledge. More than merely adventitious disclosure of~

‘such evidence by those officials to. the prosecutor himself

y ' should be required. Knowledge of the “prosecution” must:

_ accordingly include the knowledge of favorable evidence 4

_ possessed *by all: State Officers inv olved in iventiontine :

. and gene ae the case. -

— (Continued) .

-cert. denied, 400 US. 865 ; Sians v. Kropp, 254 F.: Subp :

218 .(D.C. Mich. 1966); Walker v. Bishop, 295 F. Supp.»

_. 167 (D.C. Mich. 1967), affirmed, 408 F.2d 1378 (8th Cir.) ;

Hale v. Indiana, ‘248 Ind. 630, 230. N.E.2d 432 (1967);

Giles v. Maryland,” 239 Md. 458, 212 A.2d 101° (1965), °

vacated on other grounds,. 386 U.S. 66; Cheatwood v.

“Colorado, 435 P.2d 402 (1968). See also Smith v. Florida, :

£10 F.2d “ake 1350- 1351 al Cir, Fciad 5

. » . ° e en oe " Pe

anit RN sella aCe 0 aie RATAN a SER :

. F

fae i

e ‘ 3 ; *¢@

ee nee a

. Pe -* = i .

’ ° > eo -

m . . R . *

- known to. the same “police official, Lieutenant: Turbin. He:

of the trial.. He was present. at the trial itself, acting ds

the advisory assistant . to. the prosecution. -Even when

- eourts have drawn a distinction between ' the policé and

* prosecutorial duties of disclosure, . they. have. recognized.”

' that a, state official acting in such.a éapacity * ‘may be _

_ bound by the. duty to disclose exculpatory evidence. “* He ,

is as niuch a prosecuting officer -as' the - state's ’ attorney

x _himéelf. He is capable of assessing the value of evidence

and its probative - implicatigns. He-is able’ to appreciate

" evidente which contradicts or is inconsistent ‘with. the-

truth of a‘ witness’ declarations or ‘proof ‘of guilt. No

distinction should be drawn between the. prosecutor and

> ———sieh an "assistant in terms of the State's responsibility |

| Beet erence ann) enter net oer ane

;

w O55 ¢ >

fa GRA ae PAS ae! Dole a A

__to disclose. favorable evidence on, material issues.

b. Disclosure Must be Made of Unrecorded as Well as

Regorded Evidence. | Sie

_ The ifact that certain. of the* ev ridence: Salus to be

favorable. to. the defense: was not recorded should not

affect the requirements of disclosure. °.

The form in which favorable evidence nomeesed by the .

prosecution exists should not. detract from its duty to

disclose. that evidence. — . Fe

The thrust of “the prohibition is toward dicelisicat of |

the’ evidentiary facts which east. en on the guilt or in-

“20 See Bowles v. -Texas, 366. F.2d 734, 738 “(Sth Cir.

"1966); Luna’ v. Beto, 395. F.2d 35, 41 (5th Cir. 1968)

(en bane), (coneREr aE opinion), cert. denied, 3, US. a

v - . a Se

“Thin case presents wees strong gitounds for such.

a. conclusion. All the items of evidence in question were

“was inivolyed in the inv estigation agd prosecution. of this |

_ case: from shortly after the. murder to. the culmination

‘

a 2

" ~

——

eS ev idence. ‘Such a: distinction would | elevate - fo

‘ state’s favorable evidence jad been revealed by

—~of. ~Fecotiled evidence, the failure vf the defense f

nocence of: the aceused.° The government is no less in- a

formed or possessed. of the facts comprising evi

orable to” *the defense where. that evidence is 7

than when it has been transcribed. In every. ‘practi 1

sense, evidence 1 is no less ev vidence because. it ‘is .notdin

documentary fori. ‘Wherésthe state possesses the fac ,

ev idence of | potential téstunony, its failure to‘ record tHat -

or place it in a form which would itself be admissible

as formed “evidence” Should have no effeet.on the con- ©

stitutional issues raised by-its failure to disclo si that

substaneé and would encourage; rather than discourage,

_: both governmental evasion and poor prosecutorial -and

.. invéstigatory practices: : Dea Ne, :

By the” same token, the velewaniie: of. a request ehh

"not automatically vanish where the evidence has not been :

- recorded. The. same value attaches to a request , in both

circumstances, and the same confiderations may attend

a defendant's failure’ to. request. Where, : hojvever,. the

defense may have. been misled into: helieving that the

prosecutor rey onli all.or a sabiten tial portion of ee vase s!

files, a deféndant may. ipeorrecthy infer that all fav orable . ;

ev idence has been regorded. Even. if unintentional, such o

‘action shduld relieve. the defense of any: responsibility .

_ for further requests. ° , i .

°?

c. The Evidence was’ Favorable to the Defense and ef ©

‘Substantial Relevance to Material Issues of Guilt. —

In the context of this case, the syed withheld by the

State, considered’ separately and as a group, was favorable, ,

1-. Over -

eae

i) the accused on satiiiel issues ‘of guiit. It held, mubatiin, ae

tial importance to the’ defense and : to the jury’s ability,

to make an informed and accurate assessment of ithe facts.

“This. ev idence consisted of the extrajudicial statements * 2

_ of Virgte Sanders, both written: and oral, thé unrecorded .

negative identification of. Moore as. “Slick ” by Williai 7

'. Leow ‘Thompson, and the identity and photograph. of the =}

~ suspect, Jamés E. “Slick” Watts. wan ane re ae -

The testimony of AY irgle Minders cotiatituted a sig.-

nificant ‘link in fhe prosecution’s, case. If bebieved, it

established: ‘Moore’ as having virthally admitted the crime_

charged to an acquaintance only a few days after the

murder took place. At the ‘heart of that. testimony lay |

the identification | of ‘Moore as “Slick.” In the context ‘

of ‘this ease, therefore, the identification of Moore by

‘Sanders, virtually unchallenged at trial, carried nearly .

the same significance. as thé other, eyewitness identification: |

: supplied hy Patricia Hall and. Henley Pow ell, The undis-

closed evidence tended to destroy Sanders’ ‘identification .

of Moore. and ‘to suggest a defense ——- at trial.

documents. The othet, unrecorded hearsay evidence could,

however, have- been. admitted, either as res gestae in the —

case of Thompson’s identification. or as a part of cross

_ examination of Sanders.. Whether or not ‘admissible in the.

form, considered, this constituted testimonial evidence.. "—

“The contraty is the case for the identity of the potential :

identifying witness, Delbert Jénes.- The identity of the °

witness is not the same as his. potential testimony. As |

“information it would certainly have--proved-a useful and —

_ fruitful source: of evidence. The failure to obtain poten- —

tially favorable evidence should not. be equated with the .

failure to disclose that evidence. See Reoples v. Hocker,-

428 F.2d 960, Saloon Cir. 1970). : r

3 Clearly the written. eairajudicial statement of Virgi J

Sanders and the photograph ef Watts were. admissible’:

——

apparent certainty with which Sanders identified Moore.”

“ .

"-son of Moore as “Slick,” evén if simply ’ ‘the failure of

~ the’ witness o make an identification, also contradicted

} «-Sanders’ testitsoriy. ‘in the context of this case.%® Finally,

. further, source for undermining: that identification. ~~

possible: ‘defense by inculpating one other than the accused:

_-7 epnsequences upon the- ‘outcome of the case: which” might

“This apwiien as well to the corroborative. identification

. by witness Joyce’ -who—substantiated | Sanders’ testim

f° to the point of identifying Moore. as being in the seit wa

cated that thie defendant “looks ‘like ane \of the men” i

the. identification of Moore may well have been altered

- futed or impeached. ae ~

"23 Even the absence of a positive identifieatio

nificant her

ca atari might: be drawn between a failure to identify

a suspect positively and a prior negative response, no such

distinction should be drawn here. In’ addition the evidence

on the precise character of the response’ is’ uncertain

due to the fact that the ‘police aay never recorded the

occurrence or its significance. oe oe .

‘

At ‘a. ininimum, the evidohae: at issue indermat the —

> The extrajudicial statements of nders strongly ,sug- ©

E gested that Moore could not possibly. have. been. “Slick,” - .

- the. man Sanders originally described as relating the

admission. The negative identification by William’ Thomp- -

- The conibination of these items, particularly Sandays’

- Apri 30, 1962," statement to police and the photograph:

_of James’ E. “Slick” Watts, would have provided another ~.

have flown from the defense’s possession of Watts’ _ bie: :

; :

as Sanders’ testimony of the post-conviction ‘hearing in- s

_. dicates, the photograph ‘of “Slick”. Watts provided a:

~ It is impossible to ascertain on. this - record the possible —

_osa Tap on April 27, 1962: Robert T. Fair merely oe cae

the bar. (TR. 602.) The testimony of the \trio. cheating -

, — significantly had Virgle. Sanders’ identification been re- -

L € fact that Sanders had never -

}-— been asked to “make an identification prior to trial. While —

. a

. ture. Certainly this evidence would have fern a Pruit-; |

ful. means .of. exploiting. Virgle Sanders’ testimony by

arguing that. Watts, not Moore, was the man who admitted .

‘witnesses. Even’ though it is not possible on this: record

aire discldsure.* is ie en

» De Romi DH Bat Da Dn

: The Illinois ‘Supreme :

disclosure, requirements of Brady. were satisfied because

the * prosecutor ‘showed’ his entire file to the defense

attorney.” 42 Tll.2d 73, 80. ae ea a ee oie ae

The recbrd of the triat lee post-convietion:: hearing

- does 1 aver er, prov ide substantial support” for that. .

finding. The \Ulinois - ‘Supreme Court. relied upon the

declaration of the State’s brief. on appeal referring to the

testimony given ‘at*the post-conviction hearing by the

-assiStant State’s Attorney, Mr. Fleming. (PCR. 201- 202.)

‘The delivery. of the \ was, however, flatly denied by

defense attorney Horka y whom it was assertedly. given. -

” (PCR. :230-235.) The ‘trial record supports the testimony

_of defense counsel’ that the contents of the file were not

“disclosed. _Prior to trial, the prosecutor expressed opposi-

tion to ‘digclosure other than the names. of » von Be af

and written statements ‘of witnesses to’ be given

‘close of Wirect testimony. (TR. . 31-32, 41.) Early‘in trial,

defense counsel requested certain, statements taken ”

oo Cf. paca v. . Texas, .319 F. 2d 80 (5th Cir: —

eo 2

- Be.

‘ ‘

, ; : -

= >

. .

e .

.* °

_ -the crime ‘In addition, | the photograph would have been .’

Ae of value in. eross-examination of both the State’s' eye.’

to determine’ #hether they would have altered their testi- .

- mony, the high valne and favorable implications ‘which —

are suggésted by this ev idence should be sufficient. to re--

50 indicated that the |

5 ——

» we i ",

| .* . . ; Y . sists SP z : rae ores ag

7 ha . . 4 : i . ? . i . * : ‘ 4. 5 . ‘ :

police officer Kippitz the night of the murder: (TR. 464.) Z

- The proseciting attorney futilely objected. ‘that these were

‘not among the statements agretd upon. before trial and

_/--

were —_ admisfible Berens, the. pore eolldquy_ _ —

The Court: He is: * asking for_ tatéinents that he he

took from witnesses. , is

‘Mr. /Fleminty: You want us to _ five him thdset

‘The Court:—Yes. a

Mr-¥leming: Give him the. lash file. ~<«~

Mr. Horka: I object to Mr. Eleming’s dramaties.

The Court: Give him’ any statements he made.

' .You aré.in: possession of statements and he is just

. asking for the*statements that he magle.

. .-Mr. Fleming: No, vou. misunderstand. at’s my

whole pore, I would. like. ‘to. be heard on ee

ents of .all the. wit: ae,

‘ eause he is asking for all state

Be — of the statements that he took. ~~

~.~ The Court: What are you asking for Mr. Horka?

. > Mir. “Herka:. I am askin for. anything that ‘he

wrote down at the.time a piace, at the scene. :

The Court: When?

. Mr. Horka: On’ # pri 2%, 1962 or immediately

. thereafter. 7

';. The Court;In the tav eri? 3

Mi. Horka: In the tavern or— > - *

The Court: Or before he went to the tav beat,

after.’

The Court: Ton may see them. 3

. Mr. Mack: All right, J udge, at this time the. State

is furnishing ‘to. defense. counsel a_ statement. that

Mr. Horka:. NS, 3 in. the tav ern: —— there-

this. officer was present at’and took fromm Mrs. Lorena’

* Cooper, from- Mr. Charles Davis, from Mr. -Charles

_ Mayer, from Mr. Henley Powell and from Mr. Donald

> O’Brien.

The Court: - All ‘init. Now: he ail them. ”

Mr. Fleming: Of course, “Sugg what: is he going”

| . to do with them?

- .

= eae 5 :

“ophe ‘Oaiad NY “don't inno!

Mr. Fleming:.. He éan’t itipeach this officer with j

- them. (TR. 465-466.) we

“At this time, ‘the prosecutor clearly had not revealed a

‘ -entire file to- the defense. Moréov er, the colloquy Andicates

~ that he had no intention of doing 80° without direction

from the Conrt. The trial record contains no other affirma-

tive ‘indication that the . .proseeutor revealed any--of. the

g contents of his file with the exception of his deliv ery of |

the extrajudicial statements of the State’ s eyewitnesses,

‘Patricia Hill and. Henley Powell. The only other. reference

to that file contained in’ the trial transcript is the prose-.~

_ eator’ s assertion during his closing. argument that he. had

shown the defense his file. (TR. 95]. ).

- Finally, a conclusion that the file: was delivered to the ~}

deferise cannot discharge the prosecution’ s dtity Where |

' the evidence isnot contained in the file. Thus, at a mini-

- jum, the negative identification made by William. Leon |

Thompson and the oral comment of Virgle Sanders re-

mained ,suppressed. Moreover, even assuming the prose-

ceution’s file ‘to have been shown to ffie défense: during

trial, the circumstances under which it could be viewed

‘might not permit a. reasonable serutiny by _ counsel to :

Ps *

: WHERE THE DECEASED ‘WAS KILLED WITH. A

TWELVE-GAUGE SHOTGUN, THE INTRODUCTION |

AND USE OF A SIXTEEN-GAUGE SHOTGUN, TOTAL:

LY UNCONNECTED WITH PETITIONER OR THE |

GRIME CHARGED, DENIED ae A FAIR |

) TRIAL AND DUE PROCESS OF LAW.

As admitted in the prosecution’ s response. toa motion

for a bill of ’ caiman a 2), as deceased was killed

ce.

“ ~-

| “with a tele peas shotgun. The prosecution ap rently

' had in its possession a’ report from the cago Police -_

: Scientific Crime’ Detection: Laboratory s. the gauge.

of the wadding taken. from’ the deceased’ s y; but the . S.

report was not in the prosecution’ s file/and was not intro-

. dueed ‘at trial (A. 130-138). At the close: of petitioner's '

| case, there ‘was: a Stipulation that if the officer abo made’

.*.\the report were: called, he would testify that in his opinion

the waddings came. frown a_twelve-gauge ameter sheld

os (A. 139). . ) 3

: Nonethelessy the proeéeution introduced “inte evidence.

" ower’ defense courftel’s ‘Tepeated objections (A. 81-93) a:

sixteen-gauge sawed-off shotgun taken from, the back seat 7

ofa car. belonging-to. petitioner’s: friend, on the- -oecasion fe

° of petitioner’s’ arrest some ‘six months: after the crime —

charged as he and his friend sought to enter .the car —

_ (A. 57-61, 66-71, 74-80). The sawed-off barrel _ Was . sub-

" séquently recovered . from beneath a bed. 3 in the friend’s

home (A. 77). .

ee ee,

A tiles ec tandiack anes

e pone tie shen’ gery cara danapenered amd cae

“ . and Due Process of Law. a:

' Cases im' this Court have long proceeded o1 on the: premise +

“that the Due’ Process Clause ‘guarantees: the fundamental

‘elements of fairness in a criminal trial. ‘Spencer v. Texas,

-385:U.S.. 554, 563, 87 S. Ct. 648 (496K). In Spapcer, this

Court rejected ‘a claim that inclusion of a defendant’s

prior convictions in an indictment read to the jury

violated the. defendant’s right to dué process of law; the

valid Mate purpose of enforcing the habitaal-offender net

Justified the use of what. could be considered prejudicial. - \ i

information. 385 U.S.: aNG63. In the instant case tle state -

‘had aheolutely no™ ee: interest to. achieve which

. . hi » . . f

ie... . gis e

a 4 Be ig tae , , * o y

Bois ie mea , re ba — _ “

. } ° eS i

Pe . .

‘ . - * K TAL = .

e ” ; ; . . r . tts ° :

oe . ; aN. . ae

4 2° wg . ' 7 ° " , :

. : ’

, .

° ’ :

care conkivoffeet the highly projudicial effect of divi ould” a

nh, display. of the eens ant sixteen-gange shotgun to the - is

In United States v. Harris, 331 F. od 185 (at Gir: 5 1964),

the ‘Court ‘stated:

“It i2 iheonsigtent with our traditional conéeption .

of -a air trial» to permit, thé. introduction of ‘any’.

_ évidence which might influence: a jury to conyict a

. defepdant for any reason other than that he is guilty

ee the offense charged. 331 F.2d at oer. oS

- 4 “There, the" court reversed a conviction “for pleco of

= pe “nontaxpaid whiskey because - evidence. had been ‘admitted

| z which" described | the. defendant as having a — and.

‘

=: reputation as a . Fiquor. law violator ‘on a large scale.”

In Boyd v. United States, 142 U.S. 450, 12. S. Ct. 999

| 2 - *(1893), this Court reversed a° murder conv ietion .under. -

|... | which the defendants had been sentenced to death becauss

evidence of the defendants’ Pee in other" crimes :

had been admitted. .

[Such evidence} only pome me to eo the de-

Le - fendants with the jurors, to draw their.minds away

| from the real issue, and. to’ produce the impression

_. . that they were wret¢hes whose lives were of no value -

o. ” to: the community, and: who were not entitled to the

| full benefit of the rules prescribed by law: for the

trial of human beings ‘charged with crime involving -

the punishment -of death. * * * However ‘depraved. -

in character; and. howev er full-of crime their past

lives have -been,: the: wfc, were entitled to be

- tried upon competent. evidence, and onty for the”:

_ offense marae 12'S. Ct = “ie = Soe

Lyman Moore was entitled: = no Jess.

| - The prosecution ‘was less than completely ee “when .

‘it ———— the fmt into evidence: Despite its ad.

~judge’s mistaken

gun could have beet the murder ane (A, 90-92).

demonstrate :

“pfission i in the Bill of Patticnlars that the smn weapon

was a itwelv e-gauge shotgun (A. 2) and despite. the ap-

parent. possession of a laboratory: report that the murder

weapon: was a twelve-gauge shotgun (A. 130-138), the

prosecution

ipression that: the sixteen-gauge shot-

Having successfully gotten: the | aotarein admittéd into

evidence, the prosecution made devastating: use of it in

securing a guilty vérdict and death sentence for petitioner,

as/these excerpts from. the prosecution’ s closing argument

Mr. Fleming : Now, he pe €ou about the —

_ Most important witness in: this egSe is this shotgun:

And he said this. shotgun Was found again in @ car

car that this defendant — and again this man’ with

the mustache were arrested. getting in the. automobile.

we ‘stipulated that’ the” ‘pellets, if the expert would -

haye tified that -in his opinion. they would ‘have

been from a twelve-gauge shotgun. He said because .

this is a 16 and because the pellets came from a ._

twelve-gauge shotgiin, really . this is -the. most . im-

' “portant thing in this case. ,

-» We ‘never contended and we don’t now, and the

evidence doesn’t show vit, that this is the - ‘shotgun

_ that killed Bernard :Zitek. He. said, well, -this is the

thing and the reason wky vou should go back and find |

this man not guilty.*

- Lyman Moore, I submit to you, is, that type of

defendant - that knows when he shoots a partender

-and kills that bartender, about the only way for hini

to get out of ‘it is to toss the shotgun, he shot. the —

bartender with in a creek, bury it, burn it or some-

thing else, because he knows if: he ever gets caught

with that side aa he is s absolutely, a gener.

* : e

lowed and even ¢ontributed to the. trial y

— 36 —

_ +And take a look at those, folks, these are in evi-

| - dence so you can look at them. You see this shell

_hiere, it has a ballbearing at the end of it. I wonder

|< % > what ‘they --were, going hunting. for with this?-

*. Pheasants? You shoot deer with this in Wisconsin

and Michigan. The other three are goose shot, number

' . . 4's, You shoot geese in Canada with that, you don’t —

hunt’ pheasants in Illfnois or target practice with

, these things, you’ kill. things with this. There is'a |

ballbearing at the.end of this, and that is what was

in this weapon when it was found in-the earas Lyman |

.. - . Moore and this other. man went to get into it. (A.

care 199-201). ‘Soe | , .

‘ ; . eo f * +.

mt au?

ith ehcp Pan nei S OL seg PETE Toei ost

-'Ts the death penalty the type of .penalty that is-

-appropriate-for shotguns loaded with ballbearings!

- Ts-the death penalty appropriate in this type of case

| but a hard, cold shotgun that shoots a. slug about .

the size of this. Is this the type of case?” (A. 206).

Birr oe

aecie a6S he aM

_ The. danger of prejudice" in the useof physical but ‘|

* -jrrelevant evidence has long been recognized. -

Darling, Scintillae Juris 58 (1877): What is ealled

‘real evidence’ —- mostly bullets, bad florins, And old

boots — is of much value for securing attention. This

is true even when these exhibits prove nothing, —

as is generally the case. They look so solid and im-

portant that they give stability to the rest of the

story. The mind in doubt ever turns to tangible

objects. They who first carved for. themselves a

idol could do nothing for them; but it enabled them —

éasily to realize a power. who could. A rusty knife

is now to any English juryman just what a ‘scarabae-

us’ was to an Egyptiah of old: I have ‘seen ‘a crooked

nail and a broken charity-box treated with all the

WAR

“

‘

Spb ebiticeniin F Seadeaes eal Rye) ees

* tution ordains this Court wit

eee a <37="

8 | |

_Teverenee due to relics of the. holiest martyrs aust"

“in 4 Wi igmore, Evidence @ 1157 (3d ed. 140) }.'

The shotgun. should never have~ been,” admitted into. -

evidence ; petitioner was denied a fair trial and due process

of law because * ‘of it.

“ae

‘B. % ‘Reversal ‘of Petitioner's Conviction Would Not

Involve This Court in Establishing Rules of. aac

Procedure for the State of Illinois.

In Spencer v. State of -Tezas, supra, this Court °ex-

pressed reluctance at becoming’ established as a rulemak-

ing organ for the promul n of state rules of criminal

‘procedure; “none of the specific provisions of the Consti-

such authority. ” Where

reliance is placed upon gentral principles of “fairness”,

“the Court has always, moved: with caution before. striking

down state procedures”. 385 U.S. at 563-565. €.

There is no such impediment to keversing petitioner's

cedure which need be’ struck. down. ' The Illinois rule on. . ~

admission of weapons into evidence - 1s clear—and consti-

‘tational : | :

[A] weapon may be admitted in cena where

there is proof to connect it with the defendant and

with the crime. _ However, it isnot necessary to estab-

lish that. the particular weapon was the one. which

was actually used. Where the proper connection. is

_ established. ‘and it is shown that the defendant pos-

sessed a weapon which could have been used in the

commission of the crime, it’may be admitted. in evi- -

dence. People v. Johnson, 35. Ill. 2d 516, 221 ee

497, 498 Scala | aa 7 o

Ta the preséat case neither did petitioner have posses-

sion of the gun (it was recovered from the back seat of —

.. - ar ta > ‘

the friend’s car and the s wed-off barrel was found at

- the friend’s home), nor cou the gun have been used as”

- the murder weapon. (the. gun was sixteen-gatige and the’

‘ murder weapon twelve- gauge).

weapon may be admissible to show that the accused pos-

sessed a weapon suitable for the commission of the crime

charged against him, even though no claim is ‘made the.

accused’ actually used that weapon in’ committing the

3. particular crime. People.v. Smith, 413 Ill. 218, 108 ape

4°. 596, 597 (1952). In Smith, two: sawed-off shotguns

“3 held inadmissible, even though found in the trunk ‘of oe

ear defendants’ were driving when arrested, "because the

\@ _ evidénce disclosed thé victim had been murdered with a :|-

certain caliber pistol ; sawed-off shotguns‘ were no‘ more

: suitable for the commission of that ermhe than would have

‘beeh am axe or a pistol of a diffeyent -ealiber. ,

4 In‘affirming petitioner’s convietipn, ‘the Illinois @upreme

Court dealt spmmariy with the besser of the” shot: ’

° ae ——

whic tania iin

There is - clear evidence of the weapon actually

used in this homicide, although it is clear that it was

a shotgun. We have ‘consistently held that a weapon

found upon a defendant suitable for. the commission -

of the crime charged is proper evidence even though

‘there is no showing that it was the actual weapon used. .

42 iil. 2d 73, 246 NE. 2d. 299, 303 aoe):

Justice: Schaefer, dissenting in the instant case, was °

“unconvinced : |

-In the cases cited by the may no ‘ballistic evi- -

dence was available, and therefore the suitability of

. the weapon for the commission of the crime charged .

could be established only by @ ai .description.

test results in its possession . throughout the trial-:

which showed that Zitek was shot with a twelve- :

gauge shotgun. The shotgun’ received in evidence was *

thus as unsuitable for the commission: of this murder ~ ge

as was the excluded 38 caliber revolver. 246 N.E. 2d

at 307. .

The admission of the shotgun into seideues denied peti-

tioner a fair trial and due, precess of law; the Illinois

rule: regarding admission of weapons, if properly applied,

does not. Hence, reversing petitionér’s .conviction does

not mean that this Court need establish a new rule sat

eriminal procedure for the State of Hiinois.”

C. Since Both: Petitioner’ s Guilt and ‘Punishment Were

- Determined in the Same Jury: Proceeding, He Was

Denied a Fair Trial and Due Process by the Prosecu-

tion’s Use of Evidence Totally Unconnected with, the

Issue of his. Guilt.

——

The Illinois. legislature has authorized the. jury to ae |

mine both guilt and punishment i in capital cases. Ill. Rev..

special danger in admitting ‘irrelevant and inflammatory,

evidence when the jury is faced with such awesome respon-

‘sibility.

We:-do mots prepose adothes assault on the unitary trial

system held constitutional in Speneer' v. Texas, ‘swpra, and

‘

| McGautha v. California, ...2. US. 4 91S. Ct. 2... 28

L.Ed.2d 711: [197 1}; issuance of iriaiidate stayed pending.

disposition of the petitions for rehearing (6/28/71). What

-we do propose is that the prosecution be limited in the

evidence it: may introduce in unitary proceedings to evi-

' dence tending to establish the defendant’s guilt. _

Stat., Ch..38, §-1-7 (1969). The jury. did so in the present - .

case, fixing the -penalty at death (A. 218). There is a

=a ° 40 ia

. — — .

- 7

The injustice. inflicted upon petitioner in the instant ‘

ease is obvious. There is absolutely. no evidence linking

the sixteen-gauge shotgun to the crime charged. The gnly

thread tying’ petitioner to the-gun is his approach toa .—

friend’s of from which. the gun was taken. And the jury,

with that sixteen-gauge shotgun staring them in the face,

determined that petitioner must die., If such practice can

‘be held to comport with the requirements of due process,

then to paraphrase remarks attributed to pétitioner by

_, witnesses at his ‘trial, it will be open season on gefen-

dants. , . : ; ’ ‘e*

In Spencer v.: Texas, supra, potentially prejudicial infor-

mation was allowed to go to the jury, even though the .

_ jury could sentencé ‘the defendant to death, because it was

felt that the state had a valid- countervailing purpose in-

the enforcement of its recidivist statutes. 385 U.S. at 560- _

563.. What could the prosecution’ S countervailing purpose

possibly. be in the present case? To argue that petitioner

must die because he is a bad man is s hardly worthy of the

‘State of Illinois.

The Illinois Supréme Court hae ‘Teversed a. - sotiction

and death. sentence imposed by a jury,- despite overwhelin- ~

ing evidence that th fendants had ‘committed the crime

charged. People v. Smith, supra. “A man is not to be

. convicted of a crime merely berause he. is a bad man

generally or has committed other crimes for which he has

not been: punished.” 108 .N.E.2d at 598. Two sawed-

‘off shotguns having nothing whatever. to do with the

crime charged in the indictment were admitted into evi-

dence. yo :

Such an array of weapons ‘could only serve to

arouse the jury and prejudice the defendant’s posi-

tion. * * * The effect of all this incompetent. evidence

was to close the mind of the jury ‘to any considers-

ae - ee eo +

. tC. ne : ;

tion of mercy or leniency. Wii tendhis: finding. ren

guilty of murder and setting death as his punishment .

‘cannot’ be sustained even if: the competent. evidence :

was so complete thére could be no other verdjct than -

guilty,-where | there is any incompetent evidence having

a tendency to influence the jury in fixing. = Sagres of”

punishment. _ at, ay es

? : . yx a s

“Petitioner was.denied a fair, “trial. and due process of

.- law ‘when = the _proseeution’ used’ the irrelevant.-sixteen- |

- gauge ‘shotgun to secure ,his death -ventence..

ee ed on ve

\ Tit

J THE DECISIONS 0: OF THIS COURT. IN WITHERSPOON

v. ILLINOIS AND ITS PROGENY REQUIRE REVERE. |

SAL OF DEFENDANT’S DEATH SENTENCE. — e

Withersp a v. Iltinois, 391 US. 510, unequivoeally. held

prospective jurors were excused solely on the ground that.

they expressed conscientious scruples against the death

_. penalty Subsequent decisions of the. oar have cophis-

reemphasized that

- “it-eannot be assumed that a juror. who describes

himself as having. ‘conscientjpus or religious scruples’.

, against the infliction of the~death penalty or against -

its infliction ‘in a proper case’ *.* * thereb} affirms |

that he could never vote. in favor’ .of it or that he -

could not consider doing so in the case before him.

The critical question, of course, is not how the

toto employed in this area. have ‘bebn construed |

y courts and commentators.. What matters is how

they might be understood —or misunderstood — by.

prospective jurors. *.* * Unless a venireman states

unambiguously that he. would- automatically vote

against the imposition of capital pupishment ro matter -

what the trial might reveal, it .simply cannot be | te

assumed that that is his position.” -

& Seb R ARNG aoe OT eee Te

_— ws

. i * .

Wishotspoon v. Illinors, 391 U:S. at pp. 515-516, n. 9; see

also Boulden v. Holman, 394 U.S. 478, 481-484;. Maxwi

-y. Bishop, 398 US. 262, 264-266. . The record of the voir

dire examination conducted in this case reveals that eight.

of 48 veniremen were reioved for voicing precisely the

same genera] reserv ations as _were expressly condemned

in Witherspoon. =

res | be

3 = Compare 391 ws at p: 515 with Tr. 122, 151- 152.

a fair and impartial juror in this case?

“as Mr. Byrne. I don’t believe in capital punishment: |

State to th "effect, you wouldn’t believe in it, any-

‘KATHERINE. KRISTOCK, prospective juror:

‘a fair and impartial juror in this case?"

" seruples against the infliction. of the death penalty

_- in a@ proper .case? .

ishment.

_ESTHER B!

Q. Do you

NE, prospective. juror:

ow of any reason why you ‘cannot be:

A. Well, ordinarily enough, I take the same ‘stand

In othér words, even if we have a law in this

wayt

A. Noy I don’t, definitely not. .

- The Court: Very well. That’s your ‘prerogative,

Pasa re excused for cause.

“LOUIS LORENS, prospective jaror: Fee “a

-Q. . Do you know of any reason why: you cannot be

a fair and impartial juror m this’ case?

‘A. I donot believe in capital punishment. —

_ The Court: Well, step’ down. . = ee

. (Prospective. juror excused.) - i . ep

_Q. Do. you know of any. reason why you cannot be

A. No.

~Q.- Do you have any religious or. Aonadleutioms

’ A. I'm afraid I do.. I don’t believe | in capital pun-

“The Court: Step down, please.

_ (Prospective juror excused. )

“® (continued) - eT,

“MARIAN: PETERSON, prospective j juror:

Q. Do you know of ‘any reason why .you cannot

& he a fair and impartial juror in this case?

A. :No. . Lang

Q. ‘Do ayou have anye- religio or conscientious ~ *

scruples ggainst the infliction fF) f e- os penalty -

in @ proper case? pone oo ee

_' A. Yes, I have very strong convietions against :

‘capital punishment.

_ The Court: Step down, ies,

( Prospective juror excused.) .-_

NEBRASKA PETTY, prospective juror:

“Q. Do you know. of any, reason why you cannot .

be a fair and impartial juror in . this case?

..A.. No, sir.

Q. Do you have any religious” or conscientious :

scruples against thé infliction ‘of a death “penalty - m

|. a@ proper case? — -

A. IT do.

- (Prospective ' juror ‘excused. )

; JACQUELINE B. THREATT, ‘prospective, juror:

Q. Do you know of any reason why you cannot ~

be a fair and Ampartial juror in this case?

A. No:

~ Q. Do ‘tou have any religious or conscientious -

, Seruples against the infliction of the. sha ponent)

in a proper case? ;

A. Yes,.I do...

_ Q. You do? What. do you mean?, :

A. I don’t believe in capital punishment. \

Q. Say that again. ; ; \

A. I feel. very strongly against capital punish.

ment.

‘The Court: Step down, please. Call another juror.

—_—

pa that any erroneoys removal of eligible jurors was rendered

* (continued)

MARY @ORSKI, p eogpecte’ juror:

Q. Do you know of any reason why, ‘you ‘cannot

> be a fair and impartial juror in this case? =.

. (A. No, sir.) . Sai

Q. Do you have any religious er conscientious ~

seruples against the infliction of ak death sinuses in

a proper. case? :

A. Yes, I do, your Honor. |

‘The Court: All right, step down.

ANNA L. HOHNWALD, prospective juror;

_ Q. Do you know of. any reason why you — «|

_ be a fair and impartial juror in. this, Lmugide Ce ates

1° ly; TIO Re 5 ae |

‘. Q: Do you have any rele or “ siemualanitae

-seruples et ra infliction of ne dea er in

a proper case? :

A. Yes, I do.’

2: Step down, please.

This Court has eo rejected the “justhficatists offered

. ‘by the State of Illinois in sipport of defendant’s death

sentence. In Jllinois v. Speck, 41 Ill. 2d 177, 242 N.E. 2d

208 (1968), Illinois v.. Bernette, 45: Ill. 24.227, 258 N.E. |

24.793. (1970), and Il is v. Tajra, 45 Ill. 2d 227, 258 ~

N.E. 2d 793. (1970), as in the present controversy, the

' State Supreme Court improperly attempted tp. excuse the.

’ exclusion of. veniremen merely for the expression of

scruples against the death penalty, on the grounds that 4

the total circumstances and tenor of the voir dire examina-

tion differed from that condemned by Witherspoon, and

alt

harmless by the prosecution’ 8 possession of ‘Peremptory

ee et Seer ee

; challenges. The summary reversal of the death sentence ee

“. those, and other: eaaee,* “calls for like — here. <a

-- @oNeLUSION :.

; For the reasons ‘set forth bevels. the’ canvidtion of pe- =

_ titioner should be reversed or, at the wery least,, the death

sentence mow. be set.aside... --.° ; ; : < 7

es ate 2 : Respectfally subsicitted, iz, -.

Ca a ae Exner Gerrz |

_ Witrarp J. “ LASSERS -

Attorneys for Amici Cureae |

“Pave Be Paeemax pha Wi * fee

Of Counsel. es ; a oe

scstoig » US. .:......5 Tajra v, Illinois, 108 pAn..3 see also 4

- Mathis y. Alabama, Cacricig) e-em ;. Sequra v. Patterson, San

wee USS. «...3....3 Whan v. Texas, | selauses Ue sisipsoe ; Dupless

ae Louisiana, seveese UeSe, sapiceee3, JQQgers V. Kentucky, slonioéss 3

(Bene ( esostices §; Aiken’ Vs Washington, ea Rains ; Wheat. .

mr, 7 Washington, : bales Rei chedees ; Pruett v. Ohio, ....... . US.

ie ; Quintana vi Texas, Mabe US. ibis i eeewonre v.

Ohio, ...... 6 EMR Ssindivees ; Crain v. Beto,” poueis

Wilson v. "Florida, iisetill Tees ies ie ed . Ohio’

tna, GIRS diets Dadette v. Massachusetts, ibis @ UB. ontns

Turner v. Texas, apdisiia! AIG swcuieed - ‘Harris v. ‘Texas, suite ne

US. ..c3 ef Adams: v. Wassiagton, Msaias. MOE - Soin 2 a

Funicello v. New “its eee D US, mite ; Childs v.. North

& Carolina, iota «ae

yk light of this ‘Court’é rulings in ‘Speck iat its

companion CASES, , the State may not argue that the

existence of rernaining peremptory. challenges sufficient to

¢limipate the eight jurers supports the imposition of the

- death penalty by a jury otherwise in violation of tbe

Constitution. In any event, the Illinois Supreme Court

__ was factually incorrect’ since only three peremptory chal:

‘lenges were unused, a number clearty insufficient to re:

Move all improperly excused veniremen. ye ,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.