Appellants Brief — Herring v. New York

CISRARY ,

SUPREME COURT, U. &

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 73-6587

CLIFFORD HERRING,

Appellant,

= NEW YORK,

Appellee.

APPEAL FROM THE APPELLATE DIVISION OF

THE SUPREME COURT OF THE STATE OF

NEW YORK, SECOND DEPARTMENT

BRIEF FOR APPELLANT —

DIANA A. STEELE

WILLIAM E. HELLERSTEIN

The Legal Aid Society

119 Fifth Avenue

New York, New York 10003

Counsel for Appellant

Washington, D.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

Wr s concepepencs a

a ee te nee ERE ER IW ORAS AE

(i)

TABLE OF CONTENTS

OPINION BELOW ................... eee

JURISDICTION ........0.0000 2c

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................-..

QUESTION PRESENTED... ce eee eee

SIATEMENT OF THE CASE «occ cette se tee seit:

SUMMARY OF ARGUMENT ....................

ARGUMENT:

POINT I

SECTION 320.20(3X(c) OF THE NEW

YORK CRIMINAL PROCEDURE LAW,

WHICH AUTHORIZES A TRIAL JUDGE

TO PROHIBIT CLOSING ARGUMENT IN

A NON-JURY TRIAL IS, ON ITS FACE

AND AS APPLIED, VIOLATIVE OF THE

DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT AND THE RIGHT

TO COUNSEL PROVISION OF THE SIXTH

AMENDMENT _....... 2. eee cece e er ceees

CONCLUSION, (ina 55445 64424 8 52K 5S Eee nae

TABLE OF AUTHORITIES

Cases:

Aladdin Oil Burner Corp, v. Morton, 117 N.J.L. 260,

we

187 A350 C950) us ee a eee ee ees a2

Anselin v. State, 72 Tex. Crim. 17, 160 S.W. 713

(A913) oo eae ee bee eee oes oes ea es

Argersinger v. Hamlin, 407 U.S. 25 (1972) ..........

Brooks v. Tennessee, 406 U.S. 605 (1972) ...........

Callan v. Biermann, 194 Kan. 219, 398 P.2d 355

C1965) ec oo we oe eee ee ene eee ee ese ox

BEPYE PREREP TER ho ees

.-

.. 16

(ii)

Page

Casterlow +. State, 256 Ind. 214, 267 N.E 2d 552

UUPTT). cc soee eee way eeeweenus 8 eee8 ode saxs 17

Coleman /. Alabama, 399 U.S.1 (1970) .............. 10

Comme.rwvealth v. Gambrell, 450 P: 290, 301

Pio SIG CISTS) ne wica nse 60.0646 46% 6 wean 16

Coms .onwealth v. McNair, 208 Pa. ,uper. 369, 222

« 2d 599 (1966) nk wee ee eee eee 16

Decker v. State, 113 Ohio ** 512, 150 N.E. 74

C1923): eg Se ceewe gaa O44 bee oe cen She esnescs: 16

Douglas v. California, 377 ' .S. 353 (1963) ............. 10

Ferguson v. Georgia, 36° U.S.570 (1961) ......... 7,41,12

Ferguson v. State, 1+ Tex. Crim. 250, 110 S.W. 2d

GL LIGST). ogg eee eee ees oe eeawcuuns 16

Floyd v. State. ‘ 50. 2d 105 (Fla. 1956) ............. 16

Gideon v. Ws’ wright, 372 U.S. 335 (1963) ..... 7,10, 13,14

In re F.,:* Cal. Rptr. 170, 520 P.2d 986 (1974) ....... 17

Lewis . state, 11 Ga. App. 14, 74 S.E. 442 (1912)....... 17

Lynct .. State, 9 Ind. 541 (1857) ....................... 14

Mer v. Rhay, 389 U.S. 128 (1967) ................ 10

stt v. United States, 348 U.S. 11 (1954) .. 0... 0.0... 23

ids v. Commonwealth, 10 Ky. (3 Ak. Marsh) 465

TB20) vce ope hvie nee bs ee enee dos seeanucis. 16

Patton v. United States, 281 U.S. 276 ( 1950) ks ecuncecuns 13

People v. Berger, 284 Ill. 47, 119 N.E. 975 (1918) ....... 17

People v. Douglas, 31 Cal. App. 3rd Supp. 26, 106

Cal. Rptr. 611 (App. Dept., 1973) ................ 17

People v. Green, 99 Cal. 564, 34 Pac. 231 (1893) ......0... 14

People v. McMullen, 300 Ill. 383, 133 NE. 328

UOT) oe ee aya oe oe pane seed asiatesiae. 14

People v. Manske, 399 IIl. 176, 77 N.E. 2d 164

a) ee 17

ee

(iii)

Page

People v. Thomas, 390 mi 93, 210 N.W. 2d 776

(1973) <ccnessavcdPicecser ep erimeeeseeness 16

Powell v. Alabama, 287 US. 45 (1932) ....... Vous eee 10

Reed v. State, 232 Ind. 68 (1953) ......-----+eeeee ee: 17

Singer v. United States, 380 U.S. 24 (T9GS)) gcc svunse ras 13

Sizemore v. Commonwealth, 240 Ky. 279, 42 S.W.

2d 328 (1931) wee re te teen 14

State v. Ballenger, 202 S.C. 155, 24 S.E. 2d 175

(CY <) 14

State v. Gilbert, 65 Idaho 210, 142 P.2d 584

(1943) neces deses acne divas sere sreresvess 14

State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1928) +4225 14

State v. Hoyt, 47 Conn. 518 (1880) ......---- +e eee 14

State v. Mayo, 42 Wash. 540, 85 Pac. 251 (1906) .........- 14

State v. Page, 21 Mo. 257 (1855) «1... eee eee eee eee 14

State v. Rogoway, 45 Or. 601, 78 Pac. 987, rehearing

45 Or. 611, 81 Pac. 231 (1904) ..........--- Loewy ee 14

State v. Shehoudy, 45 N.M. 516, 118 P.2d 280

(1941). 6 ob nwes ewes Ene 6 haere e eer ones ee 14

State v. Tighe, 27 Mont. 327, 71 Pac.3(1902) ........... 14

State v. Verry, 36 Kan. 416, 13 Pac. 838 (1887) .......-.. 14

Stewart v. Commonwealth, 117 Pa. 378, 11 A.370

6) cc 14

Thomas v. District of Columbia, 90 F.2d 424 (D.C.

Cir, 1937). 0c cece eter cece renee 15, 24

United States ex rel. Spears v. Johnson, 327

F.Supp. 1021 (E.D. Pa., 1971) rev'd. 463 F.2d

1024 (3rd Cir., 1972) 2.1... eee ee eee eee 15

United States v. Walls, 443 F.2d 1220 (6th Cir.,

1) er ee ae er ee 15

Walker v. State, 133 Tex. Crim. 300, 110 SW. 2d

578 (1937) 2... cee eee eee eee eee eeee 16

] (iv)

| .

West v. United States, 399 F.2d 467 (Sth Cir.,

1968) cert. denied 393 U.S. 1102 Sd a 17

Weaver v. State, 24 Ohio St. 584 US 14

White v. Maryland, 373 U.S. 59 fe a 10

Williams v. State, 60 Ga. 363 (1898) ................. 14

Winge v. State, 62°Miss. 311 (1884) ................ 14

Word v. Commonwealth, 30 Va. (3 Leigh) 743

ORD sen 0 Sida eh heed ew thn oink blew ~ vw oa wo xc 13

Yeldell v. State, 100 Ala. 26, 14 So. 570 (1894) ......... 14

Yopps v. State, 228 Md. 204, 178 A.2d 879 are) cee as 16

Constitutional Provisions:

Constitution of the United States

Fifth Amendment ....... CAs Sakon M ee ou eyed a 14

Sixth Amendment ...... | iaasaeeruieus 3, 13, 14,16

Fourteenth Amendment .................. 3, 19,16

Statutes:

Arkansas Statutes Annotated, Tit. 43, Ch. 21,

§ 43-2132 (1947) 2... eee, 15

California Penal Code §1093 ...................... 15

Connecticut General Statutes Annotated Tit. 54,

Ch. 96, § 54-88 (1958) .....000000............. 15

Federal Rules of Criminal Procedure 23(c) .............. 19

Georgia Code Annotated, Tit. 27, ch. 27-22,

§ 27-2201 (1972) .. 0... eee eee 15

General Statutes of North Carolina, ch. 84 § 84-14

CU9GS) 6b Set ng ce we neways exe e dew iwueeeeucs 15

Hawaii Revised Statutes, Tit. 37, Ch. 635, § 635-52

(Supp. 1972)... eee eee ee. 15

Idaho Code Annotated, tit. 19, ch. 21, § 19-2101

(1947)

oo & Oe 8 8 6 8 Oo 86 6 6 46 OOO UO 6 8 Be. 60 6 6 68 6S

(v)

a Page

Illinois Annotated Statutes, ch. 38, Tit. VI, § 115-4

2 ') 15

Indiana Code of Criminal Procedure, Proposed Final

Draft § 35-6.1-7-1(c)3 (September, 1972) .......---- 15

lowa Code Annotated, tit. 36, ch. 780, § 780.6

6 |.) 15

Kansas Statutes Annotated, ch. 22, art. 34,

§ 22-3414 (Supp. 1973)... ee eee eee tees 15

Kentucky Rules of Criminal Procedure 9.42 .........--- 15

Maine Rules of Criminal Procedure 30(a).......----+-5- 15

Michigan Compiled Laws Annotated, ch. 768,

§ 768.29 (1968) 2. ee eee ee eee eens 15

Minnesota Statutes Annotated, ch. 631, § 631.01

(1987) ccc carers se eeecevetnecenseesenees 15

Mississippi Code Annotated, tit. 99, Ch. 17

§ 99-17-11 (1972) 2. eee ee eee 15

Missouri Annotated Statutes § 546.070 (1949) .......... 15

Nevada Revised Statutes, tit. 14, ch. 175, § 175.141

6 Cy ) e 15

New Mexico Rules of Criminal Procedure 40 ........... 15

New York Criminal Procedure Law § 320.20 .. 2, 3. 7, 9, 12, 24

New York Penal Law

Section

Ch | ar er nen ee eae ae a 3

PO oo oo KER EREES FEDERER E EA EEE ESOS 3

WOOS .. ccc ccc ccc svn ces essere sceseveves of 3

4 ee eee ee ee See ee ee Ke

North Dakota Century Code, tit. 29, ch. 29-21,

: § 29-21-01 (1974) oe ee ee ee eee ees 15

Ohio Revised Code Annotated, tit. 29, § 2945.10

(0) 15

Oklahoma Statutes Annotated, tit. 22, §831 (1951)....... 15

a ee

(vi):

/ Page

Oregon Revised Statutes, ch. 17, § 17.210 (1971) .. 0.0, 15

Revised Codes’ of Montana Annotated, tit. 95,

$95-1910 (1947) el ee Ck a: a 15

Revised Statutes of Nebraska, ‘ch. 29, § 29-2016

dois ST OCT: ae ebb aden 2s 15

South Dakota Compiled Laws Annotated, tit. 23, as

cssttninnd «04 ak ane ee eS ae 15

Texas Code of Criminal Procedure, art. 36, § 36.01

(1966) snbhr tc tos Ccig! kel gh oot HT a ne ee ereeraes a, |

Title 28, United States Code Sa 2.

Utah Code Annotated, tit. 77, §77-31-1(6) (1953) ........ 15

Wisconsin Statutes Annotated, tit. 47, ch. 972

S97Z.1O C971)... MCR s He wie brte-e odbc nes 15

Wyoming Statutes, tit. 7, ie ad a | Sr a 15

Other Authorities:

Anno: Argument of Counsel, 38 A.L.R. 2d 1396 .

wise eee exe u ae

Archibold, CRIMINAL PLEADING, EVIDENCE

AND PRACTICE (Butler & Garcia Ed. 1969) ........ 12

Gordon, Non-Jury Summations, 6, Am. Jur. Trials

ae RD es kk RSH a 6-6 OO Rd bib bed ave 21

Griswold, The Historica] Development of Waiver of:

Jury Trial in Criminal Cases, 20 Va. L. Rev. 655

idetces A a «=| 13

Hilliard, ON NEW TRIALS (2nd Ed. 1866) ... ed habe bk 13

Hyatt, TRIALS (1924) .........._. Sy ee 13

James, CRISIS IN THE COURTS ( ay i Se 19, 2]

Jenks, THE BOOK .OF ENGLISH LAW (6th ‘

PN Te. 2G) ss... es eka sg Sk ioe 12

Jones, Ed., THE COURTS, THE PUBLIC AND THE

LAW EXPLOSION (1 WP ee gy. 21,22

Kalven & Zeisel, THE AMERICAN JURY (1966) ........ 20

Katz, Municipal Courts—A nother Urban Ill, 20 Case

West. L. Rev. 87(1968) .............. heees Recs

(vii)

: | Page

Orfield, CRIMINAL PROCEDURE FROM ARREST

pity, OO) 7 eae 2 era ee ee 13

Powell, Jury Trial of Crimes, 23 Wash. & Lee

tet OE a ere ee eee ee 18

"lag

~, _ President’ s Commission on Law Enforcement and

Administration of Justice, THE CHALLENGE

OF CRIME IN A FREE SOCIETY (1967) ........... 23

President’s Commission on Law Enforcement and

Administration ‘of Justice, TASK FORCE RE-

PORT: THE COURTS (1967) ......-----¢4-005 20, 22

Puttkammer, ADMINISTRATION OF CRIMINAL

EA USSEE Swe c es cc creer he wetwepedoscoes 13

REPORT OF THE NATIONAL ADVISORY COM-

MISSION ON CIVIL DEORDERS (Bantam Ed.,

er ere we Sere eee ee ee ee 23

THE AUTOBIOGRAPHY OF MALCOLM X (Grove

Press-Ed., 1966) 2.0 ccc eve cmecdececccrccscn 23

Thompson, TRIALS (1889) ......--- +++ seer eeeeees 13

Wharton, CRIMINAL LAW AND PROCEDURE

(Anderson Ed., 1957) 1... 0. - eee eee e eee ees 13

Wright, The Courts Have Failed the Poor, N.Y. ©

Times (Magazine), Mar. 9, 1969, p.26 .....-.+----- 23

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 73-6587

CLIFFORD HERRING,

Appellant,

V.

NEW YORK,

Appellee.

APPEAL FROM THE APPELLATE DIVISION OF

THE SUPREME COURT OF THE STATE OF

NEW, YORK, SECOND DEPARTMENT

BRIEF FOR APPELLANT

OPINION BELOW

The affirmance by the Appellate Division, Second

Department was without opinion and is reported at 43

A.D. 2d 816. The order of affirmance appears in the

printed appendix at page 98. On March 22, 1974, the

Appellate Division amended its remittitur to certify that

a constitutional question had been passed upon. This

order appears in the printed appendix at page 100.

Leave to appeal to the Court of Appeals was denied on

2

January 31, 1974, by Associate Judge Harold Stevens.

The certificate denying leave to appeal to the Court of

Appeals appears in the printed appendix at page 99. No

opinions have been rendered.

JURISDICTION

“The judgment and order of the Appellate Division

was entered on December 24, 1973. Leave to appeal to

the Court of Appeals was denied on January 31, 1974.

Notice of appeal was filed in the Supreme Court of the

State of New York, Richmond County, the court

Possessed of the record, on April 8, 1974. The appeal

was docketed on April 18, 1974 and ‘probable

jurisdiction was noted by the Court on October 21,

1974. The jurisdiction of the Court is invoked pursuant

to Title 28 of the United States Code, Section 1257(2).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment VI

* * *

United States Constitution, Amendment XIV,

Section |

* * *

‘New York Criminal Procedure Law, Section

320.20(3): .

Non-jury trial, nature and conduct thereof.

3. The order of the trial must be as follows:

(a) The court may in its discretion permit the

parties to deliver opening addresses. If the court

3

grants such permission to one party it must grant

it to the other also. If both parties deliver opening

addresses, the people’s address must be delivered

first.

(b) The order in which evidence must or may

be offered by the respective parties is the same as

that applicable to a jury trial of an indictment as

prescribed in subdivisiciis five, six and seven of

Section 260.30.

(c) The court may in its discretion permit the

parties to deliver summations. If the court grants

permission to one party, it must grant it to the

other also. If both parties deliver summations, the

defendant’s summation must be delivered first.

(d) The court must then consider the case and

render a verdict.

QUESTION PRESENTED

Whether Section 320.20(3)(c) of the New York

Criminal Procedure Law, which authorizes a trial judge

to prohibit closing argument in a non-jury trial is, on its

face and as applied, violative of the Due Process Clause

of the Fourteenth Amendment and the right to counsel

provision of the Sixth Amendment.

| STATEMENT OF THE CASE

Charged with attempted robbery in the first and

third degrees and possession of a dangerous instru-

ment,! appellant waived his right to a jury trial pursuant

to Section 320.10 of the New York Criminal Procedure

'New York Penal Law §§110.00/160.15; 110.00/160.0S;

| 265.05.

4

Law and on February 3, 4 and 7, 1972, was tried

before a justice of the New York Supreme Court.

The People’s Case

On February 3, 1972, the testimony of Allen

Braxton, the complaining witness, was taken. Braxton

testified that on September 15, 1971, at about 6:00

P.m., he was outside his home, a housing project on

Staten Island, transferring some money from his pants

pocket to his wallet when appellant approached him

(App. 5, 6, 9, 15).?. Appellant, whom he recognized

from the neighborhood, said in a soft voice ““[p] lease

give me some money, I am sick” (App. 7, 18,35). When

Braxton refused, appellant took a knifeblade out

of his right pocket and flicked his right wrist at

Braxton, whereupon Braxton ran into his building

(App. 6, 19). The entire encounter lasted approximately

thirty seconds (App. 26).

Braxton immediately reported the incident to William

Stubbs, a family friend and New York City Housing

Authority Policeman (App. 9, 11, 24).

Following Braxton’s testimony, the case was ad-

journed until the following morning, February 4, 1972,

at which time William Stubbs testified. Stubbs, who had

been dismissed from the police force some time after

the incident in question, stated that he had known both

Braxton and appellant before the date of the alleged

incident but did not witness it himself (App. 51, 58).

Rather, he learned of it from Braxton at about 6:00

p.m. on the evening of September 15, 1971. About an

hour and a half later, while patrolling the area, he came

upon Braxton and appellant standing on opposite sides

* Numerical references preceded by “App.” are to-the printed

appendix.

S

of one of the neighborhood streets (App. 52-54). When

Stubbs approached appellant and notified him of

Braxton’s accusation, appellant immediately denied

having attempted to rob Braxton and told Stubbs that

he had been working for a Mr. Taylor at the time

Braxton claimed appellant had tried to rob him (App.

54, 60). Stubbs placed appellant under arrest and found

a small knife blade on appellant’s person (App. 54,

55).

The People then rested and the case was adjourned

over the weekend (App. 65, 68).

The Defense

On Monday morning, February 7, 1972, appellant’s

case was recessed until the afternoon to accommodate

the schedule of his employer, Donald Taylor (App.

71). At about two o’clock that afternoon, the case was

recalled and Mr. Taylor, the president of A & A Tank

Cleaning. Company on Staten Island, testified that

on September 15, 1972, appellant was at work at 6:00

p.m. (App. 71, 73). Although unable to swear to the

exact time he had seen appellant on his premises that

day, Taylor did remember seeing him there at about

5:30 or 6:00 p.m. as well as later than 6:00 p.m. (App.

156, 157). He also remembered talking to appellant

sometime during the evening and before. he left for

home at about 9:00 or 9:30 p.m. (App. 81). Less than an

hour later, appellant called him at home and said he had

been arrested (App. 81).

3At the end of the People’s case, the court dismissed the

_ charge of possession of a dangerous instrument on the grounds

that the blade was too small to fall within the purview of Penal

Law §265.05 (App. 66).

6

Appellant also took the stand and denied attempting

to rob Braxton. He stated that he had been at work

until at least 6:30 Pp.m., and pointed out that the shop

was some ten minutes away from Braxton’s home (App.

84-87). Appellant further testified that he had pre-:

viously been Braxton’s next door neighbor and that:on

occasion Braxton had asked him for money for drugs‘

or wine. Indeed, each ‘time appellant refused, Braxton

called him a name or threatened to “fix” him (App.

85-86). (

The Verdict

After both sides had rested and a motion to dismiss

the charges was denied, defense counsel requested an

opportunity to make a closing argument, Stating: ‘Well,

can I be heard somewhat, on the facts?” The court,

relying specifically on the statute involved herein denied

his request, replying: “Under the new statute, sum-

mation is discretionary, and I choose not to hear.

summations” (App. 92).

Eight minutes later, the court found appellant guilty

of attempted robbery in the third degree (App. 93). On

June 15, 1972, appellant was sentenced to an

indeterminate term of imprisonment with a maximum of

four years (App. 96). \

The Appellate Division, Second Department, affirmed

the conviction without opinion on December 24, 1973

(App. 98). Leave to appeal to the Court of Appeals was

denied on January 31, 1974 (App. 99).

\

“Both appellant and Braxton admitted that they had used

narcotics (App. 41, 87).

EE .

7

SUMMARY OF ARGUMENT

I.

Section 320.20(3)(c) of New York’s Criminal

Procedure Law, which authorizes the court in a

non-jury trial to preclude closing argument, deprives a

defendant of his constitutional rights to be heard in his

own defense and to the effective assistance of counsel.

The right of a criminal defendant to be heard in his

own defense is inextricably entwined with his right to the

“suiding hand of counsel” at all critical stages of the

criminal process. The Court’s decisions in Brooks y.

Tennessee, 406 U.S. 605 (1972) and Ferguson v. Georgia,

365 U.S. 570 (1961) establish that the professional skill

of a trained advocate is essential to the effective planning

of a defense and to the presentation in organized,

coherent and logical fashion, of the factual and legal side

of a defendant’s case and that statutes which abridge

counsel’s basic role will not pass constitutional muster.

Like the statutes struck down in Brooks and

Ferguson, section 320.20(3)(c) is unconstitutional

because it sanctions the denial of a defendant’s right to

the benefit of counsel’s skill in sifting, organizing and

presenting to the fact finder the strengths of his case

and the weaknesses of the prosecution’s evidence. It

thus deprives an accused of the “guiding hand of

counsel” at the critical fact-finding stage of the trial

process.

The statute is also at odds with the historical

development of closing argument within our adversary

8

system. Indeed, it runs counter to the overwhelming

weight of authority.

II.

Closing argument, whether to a judge or jury,

diminishes the possibility of error in the fact-finding

process. While a judge has legal expertise, he does not

differ from a juror in his attentiveness or ability to

remember salient facts. The possibility of error may be

even greater in a bench trial because the jury’s

judgment, being collective, at least furnishes some

assurance of reliability. Where a judge sits alone,

without the benefit of summation, the issue of guilt or

innocence is relegated to the subjective impression

which he alone has garnered from the trial. In our

over-worked urban courts, preclusion of closing argu-

ment is especially threatening to the reliability of our

trial process. For in those courts, there is an

exacerbation of the risk that a verdict may result from

boredom, cynicism or time pressure, rather than from a

fair evaluation of the evidence.

The facts of this case underscore the importance of

closing argument in the non-jury trial. Testimony from

four witnesses was taken over a period of five days,

broken up by the weekend. One of the two

Prosecution witnesses did not witness the alleged

incident and the other, the complainant, was charged

by appellant with having a motive to be vindictive.

Appellant interposed an alibi, corroborated by his

employer, that he was at work at the time in question.

Absent summation, there was no guarantee that the

9

trial judge weighed the crucial aspects of the case with

his attention drawn to the weaknesses of the

prosecution’s evidence and the strengths of appellant’s

defense. The refusal to hear counsel thus stripped

appellant of his right to have his attorney utilize his

professional skills in presenting his case in its strongest

posture for consideration by the court. It thereby

diluted substantially his rights to be heard and to the

effective assistance of counsel.

ARGUMENT

POINT I

SECTION 320.20(3)(c) OF THE NEW YORK

CRIMINAL PROCEDURE LAW, WHICH

AUTHORIZES A TRIAL JUDGE TO PRO-

HIBIT CLOSING ARGUMENT IN A NON-

JURY TRIAL IS, ON ITS FACE AND AS

APPLIED, VIOLATIVE OF THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT AND THE RIGHT TO

COUNSEL PROVISION OF THE SIXTH

AMENDMENT.

I.

Section 320.20(3) (c) of New York’s recently enacted

Criminal Procedure Law* authorizes the judge in a,

\

_

5N.Y.C.P.L. § 320.20 became effective on September 1, 1971

along with the entire Criminal Procedure Law. Prior to that date,

no statute governed the procedure of the non-jury trial.

ee Sa.

10

non-jury trial to dispense with closing argument.

Invoking this statute, the trial court denied counsel’s

request to deliver a summation and thereby deprived |

appellant of his due process right to be heard as weil us

his right to the effective assistance of counsel.

It is basic to our adversary system of criminal justice

that a defendant has a right to be heard on his own

behalf and that such right is inseparable from his right

to be heard by counsel at every critical stage of the

criminal process. Since Powell y. Alabama, 287 U.S.

45 (1932), wherever representation by counsel has been

ordained by the Court, it has been accompanied by the

recognition that counsel’s presence alone does not

necessarily guarantee the fairness required by the

Constitution. Rather, in the now Classic words of Mr.

Justice Sutherland, an accused

requires the guiding hand of counsel at every step

in the proceedings against him. Without it, though

he be not guilty, he faces the danger of conviction

because he does not know how to establish his

innocence. If that be true of .nen of intelligence,

how much more true is it of the ignorant and

illiterate, or those of feeble intellect. If in any

case, civil or criminal, a state or federal court were

arbitrarily to refuse to hear a party by counsel,

employed and appearing for him, it reasonably

may not be doubted that such refusal would bea

denial of 4 hearing and therefore of due process in

the constitutional sense. 287 U.S. at 69.

°Thus, since Gideon v. Wainwright, 372 US. 335 (1963), the

Court has held that a defendant is entitled to counsel at a trial

for any crime punishable by imprisonment [Argersinger y.

Hamlin, 407 US. 25 (1972)]; at a preliminary hearing [Coleman

v. Alabama, 399 U.S. 1 (1970)]; at sentence [Mempa v. Rhay,

389 U.S. 128 (1967)]; at a guilty plea [White v. Maryland, 373

U.S. 559 (1963)]; and on appeal taken as a matter of right

[Douglas v, California, 372 U.S. 353 (1963)].

|

/

1]

Relying on Powell, the Court has twice held state

statutes which interfered with a defendant’s right to the

, benefit of: certain of counsel’s professional ‘functions

during trial to be deprivations of the “guiding hand of

counsel”. Brooks y. Tennessee, 406 U.S. 605 (1972);

Ferguson v. Georgia, 365 U.S. 570 (1961).

Brooks, which struck down a statute that required a

criminal defendant to be the first defense witness or

lose his right to testify, established that a defendant’s

right to have his attorney’ plan and order the

presentation, of such a critical aspect of his defense is .

guaranteed by the Due Process Clause. 406 U.S. at 612,

613. New York’s statute, which permits a court to

foreclose closing argument, is at odds with Brooks’

sensitivity to the substantive meaning of the “guiding

hand” concept enunciated in Powell because it, too,

abridges defense counsel’s control over a critical’ aspect

of the defense—namely, his statement to the court of

the very theory of the defense, presented cogently by

virtue of his training,’ to convince the court to acquit

his client.

Ferguson is even more compelling, for the Court there

underscored the critical nature of an advocate’s role in

presenting factual data favorable to the defense to the

fact-finder in an ordered, coherent and complete

fashion. In striking down the Georgia statute which

precluded counsel from eliciting the defendant’s un-

sworm statement to the jury, the Court held that

without counsel’s ‘guiding hand’? in the elicitation of

that statement, relevant and critical facts might not be

presented or might be presented incoherently or in a

confused manner at best. 365 USS. at 591, 595 and

596. /

12

Section 320.20(3) (c) conflicts with Ferguson in that

it sanctions a: verdict based only on the judge’s

subjective view of the disjointed and unordered

segments of the trial evidence. Ht thus deprives the

accused of his basic right to have his defense presented

to the finder of fact by a skillful advocate trained to

articulate his side of the case in a coherent, organized

and complete argument, with due emphasis on the

factual and legal strengths of the defense case and the

weaknesses of the prosecution’s evidence. In a very real —

sense, the statute deprives a defendant of the “guiding

hand of counsel” at no less a critical stage of the

proceeding ‘than did the Ferguson statute. In Ferguson,

counsel’s “guiding hand” was excised at the fact

elicitation stage of the trial. Here, it is excised at the

very threshold of the fact-finding stage. In constitu-

tional terms, this is a distinction without a difference

and Ferguson should be dispositive.

If Ferguson is not entirely dispositive, it surely

points the way to a result consistent not only with

constitutional doctrine but. with the historical de-

velopment of ‘the importance of ‘closing argument

_ within our adversary system.” For historically, it was

7 While the English common law has little jbearing on the

historical development of the right to closing argument in this

country, since a defendant charged with a felony in England was

prohibited from appearing with counsel until 1836, it is

nonetheless significant that in 1865, the right to deliver a closing

argument was statutorily recognized. The Criminal Procedure Act

of 1865 included the following provision: “Upon every

trial...whether the prisoners. . .or any of them shall be

defended by counsel or not... such prisoner or their counsel

shall be entitled ...when all the evidence is concluded to sum

up the evidence respectively.” Archibold, CRIMINAL PLEAD-

ING, EVIDENCE AND PRACTICE § 558 (1969); Jenks, THE

BOOK OF ENGLISH LAW 74 (1967).

—~—

13

virtually “the law of the land” that a defendant had a

right to have his attorney deliver a closing argument.*

This right developed primarily as a component of a

defendant’s right to counsel and was recognized well

before both the application of the Sixth Amendment’s

counsel provision to the States’ and the Constitutional

sanctioning of the non-jury trial.'°

As early as 1827, the Supreme Court of Virginia

recognized that in the jury trial, even where there was

only one unimpeac’ied prosecution witness and no

defense presentation, “‘it is the right of every party to

be heard by counsel on his whole case.” Word vy.

Commonwealth, 30 Va. (3 Leigh) 743, 759 (1827).

Other state courts readily followed suit, declaring that

the right to closing argument was protected by their in-

dividual constitutional provisions guaranteeing the

‘

® Treatises on trial conduct written during the last century are

unanimous in stating that the right to counsel encompasses the

right to have counsel deliver a closing argument. E.g. Hilliard, ON

NEW TRIALS §40 (1866); 1 Thompson, TRIALS § § 921, 955

(1889); 2 Myatt, TRIALS §1450 (1924); 5 Wharton, CRIMI-

NAL LAW AND PROCEDURE § 2077 (1957).

° Gideon v. Wainwright, supra, n. 6, 372 U.S. 335.

Patton v. United States, 281 U.S. 276 (1930). While there

* were instances of jury-trial waivers prior to Patton, they occurred

mainly during colonial times and by the end of the nineteenth

century were common only in Maryland and West Virginia. See

Singer v. United States, 380 U.S. 24 (1965); Orfield, CRIMINAL

PROCEDURE FROM ARREST TO APPEAL 491 (1947);

Puttkammer, ADMINISTRATION OF CRIMINAL LAW 117

(1953); Griswold, The Historical Development of Waiver of Jury

Trial in Criminal Cases, 20 Va. L. Rev. 655 (1933-1934).

14

night to counsel.'' Indeed, even prior to the Court’s

decision in Gideon, the Supreme Courts of Washington,

Oregon and Alabama considered closing argument to be

encompassed by both the federal and state constitu-

tional guarantees of counsel.!2

Today, the right to deliver a closing argument is

contested only in the context of the non-jury trial. But,

' the weight of authority holds, nonetheless, that this

right is guaranteed by the Sixth Amendment’s counsel

provision or the Due Process Clause of the Fifth and

"'Lynch.v. State, 9 Ind. 541 (1857); People v. Green, 99 Cal.

504, 34 Pac. 231 (1893); People v. McMullen, 300 Ill. 383, 133

N.E. 328 (1921); Sizemore y. Commonwealth, 240 Ky. 279, 42

S.W. 2d 328 (1931); State v. Ballenger, 202 S.C. 155, 24 S.E. 2d

175 (1943); State v. Gilbert, 65 Idaho 210, 142 P.2d 584

(1943); State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1925);

State v. Hoyt, 47'Conn. 518 (1880); State v. Page, 21 Mo. 257

(1855); State v, Shehoudy, 45 N.M. 516, 118 P. 2d 280 (1941);

State v. Tighe, 27 Mont. 327, 71 Pac. 3 (1902); State v. Verry,

36 Kan. 416, 13 Pac. 838 (1887); Stewart v. Commonwealth,

117 Pa. 378, 11 A. 870 (1887); Weaver v. State, 24 Ohio St. 584

(1874); Williams.»State, 60 Ga. 363 (1898); Wingo v. State, 62

Miss. 311 (1884). Most of these cases arose in the context of im-

proper limitations of counsel’s closing argument.

'2State v. Mayo, 42 Wash. 540, 85 Pac. 251 (1906); Siate v.

Rogoway, 45 Or. 601, 78 Pac. 987; rehearing 45 Or. 611; 81

Pac. 234 (1904); Yeldell v. State, 100 Ala. 26, 14 So. 570

(1894).

en

15

Fourteenth Amendments.'? Thus, in United States y.

Walls, 443 F.2d 1220 (6th Cir., 1971), the court held

that preclusion of closing argument in a non-jury trial

deprived a defendant of the effective assistance of

counsel. The same result was reached in Thomas Y,

District of Columbia, 90 F.2d 424 (D.C. Cir., 1937). In

United States ex rel. Spears y. Johnson, 327 F.Supp.

3New York is the only state which, by statute, authorizes the

trial court in a non-jury trial to dispense with closing argument.

Although Indiana proposed a statute derived from and virtually

identical to the New York provision challenged here {ind. Code

Crim: Proc., Proposed Final Draft § 35-6.1-7-1(c)3 (Sept.,

1972)], it has not been enacted. Six make provision for closing

argument without distinction between the jury or non-jury trial.

See Ark. Stats. Ann., tit. 43, ch. 21, § 43-2132 (1947); Cal.

Penal Code § 1093; Conn. Gen. Stats. Ann., tit. 54, ch. 96,

§ 54-88 (1958); Maine R. Crim. Proc. 30(a); Miss. Code Ann., tit.

99, ch. 17, §99-17-11 (1972); Ohio Rev. Code Ann., tit. 29,

§ 2945.10 (1953). Others, as did New York prior to 1971,

provide for closing argument specifically in the jury trial and are

silent as to the non-jury trial. See, Ga. Code

Ann., tit. 27, ch. 27-22, § 27-2201 (1972}, Hawaii Rev. Stats.,

tit. 37, ch. 635- § 635-52 (Supp. 1972); Idaho Code Ann., tit. 19,

ch. 21, § 19-2101 (1947); Ill. Ann. Stats., ch. 38, tit, VI, § 115-4

(1970); Iowa Code Ann., tit. 36, ch. 780 § 780.6 (1946); Ky. R.

Crim. P. 9.42; Kan. Stats. Ann., ch. 22, art. 34, § 22-3414 (Supp.

1973); Mich. Comp. L. Ann., ch. 768, § 768.29 (1968); Minn.

Stats. Ann., ch. 31, § 631.01 (1947); Mo. Ann. Stats. § 546.070

(1949); Rev. Code Mont., tit. 95, § 95-1910 (1947); Rev. Stats.

Neb., ch. 29, § 29-2016 (1943); Nev. Rev. Stats., tit. 14, ch. 175,

§ 175.141 (1967); N.M.R. Crim. Proc. 40: Gen. Stats. N.C., ch.

84, §84-14 (1963); N.D. Century Code. tit. 29, ch. 29-21,

§ 29-21-01 (1974); Okl. Stats. Ann., tit. 22, § 831 (1951); Ore.

Rev. Stats., ch. 173 § 17.216 (1971); S.D. Comp. L. Ann., tit. 23,

§ 23-42-6 (1967); Tex. Code Crim. Proc., art. 36, § 36.01 (1966);

Utah Code Ann., tit. 77, § 77-31-i¢S) (1953); Wis. Stats. Ann..,

tit. 47, ch. 972, §972.10 (1971); Wye. Stats., tit. 7. § 7-228

(1957). The remaining states do not make any specific provision

concerning closing argument.

16

1021 (E.D. Pa., 1971) rev'd. 463 F.2d 1024 (3rd Cir.,

1972),'* the court held preclusion of closing argument

a deprivation of due process.

Similarly, a majority of state courts faced with the

issue, pre- and post-Gideon, have held that the right of

an accused to be heard on the evidence in a non-jury

trial is guaranteed by either the Sixth or Fourteenth

Amendments. People v. Thomas, 390 Mich. 93, 210

N.W. 2d 776 (1973); Commonwealth v. McNair, 208

Pa. Super. 369, 222 A.2d 599 (1966); Commonwealth

v. Gambrell, 450 Pa. 290, 301 A.2d 596 (1973) [where

the right was recognized but deemed waived]; Yopps v.

State, 228 Md. 204, 178 A.2d 879 (1962); Floyd ».

State, 90 So.2d 105 (Fla. 1956); Olds v. Common-

wealth; 10 Ky. (3 Ak. Marsh) 465 (1821).'*

i

14The court’s reversal was based upon a finding that the trial -

court had not, in fact, prohibited counsel from presenting a

summation.

1STexas and Ohio in pre-Gideon decisions also confronted the

issue and held that the right to a non-jury trial summation was

guaranteed by their respective state constitutional gurantees of

the right to counsel. Walker v. State, 133 Tex. Crim. 300, 110

S.W. 2d 578 (1937); Ferguson v. State, 133 Tex. Crim. 250, 110

S.W. 2d 61 (1937); Anselin v. State, 72 Tex. Crim. 17, 160 S.W.

713 (1913); Decker v. State, 113 Ohio St. 512, 150 N.E. 74

(1925).

Additionally, although in civil cases courts have been less

strict in enforcing the right to closing argument [See Anno:

Argument of Counsel, 38 ALR. 2d 1396, 1401 (1954)], two

states have held that the right to deliver a closing argument in

the civil non-jury trial is “absolute.” Callan v. Biermann, 194

Kan. 219, 398 P.2d 355 (1965); Aladdin Oil Burner Corp. v.

Morton, 117 N.J.L. 260, 187 A.350 (1936).

in a ne At Se LE

6

17

Most recently, the California Supreme Court held

that a juvenile tried before a court without a jury is

entitled to have his counsel deliver a closing argument.

In re F., 113 Cal. Rptr. 170, 520 P.2d 986 (1974). In

dicta, the court noted that a similar right was

compelled in non-jury adult criminal proceedings.'® The

court’s reasoning is applicable to both proceedings:

As there is a constitutional right to the assistance

of counsel to ascertain whether a juvenile has a

defense to a jurisdictional charge and to “prepare

and submit” a defense, it surely follows that

counsel would be precluded from discharging his

duties if, after all the testimony had been received,

a presentation of the defense was limited by the

denial of an opportunity, through argument, to

reconcile the testimony with the juvenile’s inno-

cence of the charges and attempts to persuade the

court to that view. The “‘guiding hand of counsel”

would thus be withdrawn at an important “step of

the proceedings against’’ the juvenile.'’

In re F., supra, 113 Cal. Rptr. at 173; 520

P.2d at 989.

‘This dicta is supported by People v. Douglas, 31 Cal. App.

3rd Supp. 26, 106 Cal. Rptr. 611 (App. Dept., 1973). ,

'’The following courts have declined to re ognize the

right to present closing argunient in the non-jury’ trial: West v.

United States, 399 F.2d 467 (Sth Cir., 1968) cert. den. 393 U.S.

1102 (1969); Casterlow v. State, 256-Ind. 214, 267 N.E. 2d 552

(1971); Reed v. State, 232 Ind. 68 (1953); People v. Manske,

399 Ill. 176, 77 N.E. 2d 164 (1948); People v. Berger, 284 Ill.

47, 119 N.E. 975 (1918); Lewis v. State, 11 Ga. App. 14, 74

S.E. 442 (1912). These courts have provided little elucidation of

their reasons for the adoption of this rule. Indeed, in Lewis v.

State, supra, no opinion was written. It is interesting to note,

however, that in People v. Manske, supra, the court declared that

as a general rule it was of the opinion that the court in a non-

jury trial should listen to the arguments of counsel, even when it

does not appear helpful. 399 Ill. 176 at 185, 77 N.E. 2d 164 at

170.

18

II.

Preclusion of a defendant’s right to closing argument

in a non-jury trial not only seriously dilutes the role of

counsel in the presentation of the defense and thereby

deprives him of his basic right to be heard; it also

undermines the integrity of the fact-finding process and

enhances the possibility of error in the ultimate verdict

rendered.

An appreciation of the fact-finding process in a

bench trial demonstrates that closing argument is

perhaps more crucial to the presentation of a defense

tian in a jury trial. A judge does not differ

from individual jurors in his ability to retain and

assemble material which has come before him during

the days or possibly weeks of trial. Judicial training,

while affecting legal expertise, does not afford improved

ability to remember or to reconstruct facts accurately.

The fallibility of the human mind afflicts judges no less

than jurors.

Moreover, a jury, by definition makes a collective

judgment and, as Mr. Justice Powell has observed,

“It]his collective judgment tends to compensate for

individual shortcomings and furnishes some assurance of

a reliable decision.”” See Powell, Jury Trial of Crimes,

23 Wash. & Lee L. Rev. 1, 4 (1966). A judge, in

contrast, comes to his decision unaided by the

recollections or points of view of others. In the absence

of closing argument by the. respective parties, the judge

receives no in-put at all into his decision-making process

that could minimize the possibility of a premature

decision, counterbalance any prejudice developed during

trial or alert him to possible error in his own

OI AON A NN NN OTT

|

19

recollection of the evidence. Closing argument, however,

diminishes the possibility of an erroneous verdict

resulting from these human frailties.'®

It is noteworthy that unlike the federal non-jury trial.

where counsel can require the court to render fact

findings with its verdict'® and thereby obtain at least

some assurance that the fact-finder has considered the

factual material and evaluated it in toto, New York has

no comparable safeguard and thus the basis for the

court’s verdict is impenetrable. However, when the

judge in the non-jury trial is required to hear closing

arguments, at the very least,’he must be attentive to the

facts presented by opposing counsel and weigh their

respective merits. Indeed, he may seek clarification of

'8That these problems are very real in the bench trial is well

illustrated in James, CRISIS IN THE COURTS 191, 192 (1967).

The author quotes Professor Zeisel’s statement that the theory

that judges can be as fair as a jury “assumes that judges are

perfect human beings ...an assumption that is unfortunately far

from the truth.” Sirhitarly, - James quotes Donald Ross, a

spokesman for the Milwaukee Defense Research Institute as

saying: “While a judge has special legal knowledge, he is still just

one person, filled with the prejudices and biases that are a part

of each one of us.” Finally, according to Jacob Fuchsberg,

former president of the American Trial Lawyers Association and

presently Associate Judge-Elect of the New York Court of

Appeals:

“Judges have no monopoly on intelligence, insight, or

fairness. They are ordinary human beings like anyone else.

I believe the opinions of 12 people are better than the

opinions of one—and I don’t care whether they are 12

lawyers, 12 judges or 12 laymen.

“When 12 people must come to a decision, the

prejudices that are inherent in most people get worked out

in the discussion that is involved.”

'°Fed. R. Crim. Proc. 23(c).

20

troublesome aspects of the case through questions

directed to counsel. In short, he would be unable to

rest solely on his subjective belief that his recollection

and understanding of the testimony was the only

accurate portrayal available.

At this point in our history, closing argument is also

of critical) importance because of the tremendous

caseloa handled by our courts. Urban courts,

particularly, handle so enormous a volume of cases that

they are able neither to mete out prompt and certain

justice nor to give defendants the protections .they

should have.?° Indeed, the Court has already recognized

that in the lower criminal courts which process most-of

our criminal cases and which have a very high incidence

of non-jury trials, speed and not truth is often .the

watchword.?4_ A judge may handle many cases in a

given day or week and may be too harried to give his

undivided attention to the trial before him.?? The

2President’s Commission on Law Enforcement and Admini-

stration of Justice, TASK FORCE REPORT: THE COURTS 1

(1967).

21 Argersinger v. Hamlin supra n.6, 407 US. 25 at 34-35.

TASK FORCE REPORT: THE COURTS supra n.19 at 55;~

Kalven & Zeisel THE AMERICAN JURY 18 (1966).

224s Dean Edward Barrett has observed of the lower criminal

courts:

“But if one enters the courthouse in any sizeable city

and walks from court room to court room, what does one

see? One judge, in a single morning, is accepting guilty

pleas from and sentencing a hundred or more persons

charged with drunkenness. Another judge is adjudicating

traffic cases with an average time of no more than a

minute per case. A third is disposing of a hundred or more

~

21

“case-hardened” judge may be inattentive for any

number of reasons.23 In such circumstances, closing

argument may too easily be dispensed with as a

time-saving device. Yet it is just such a situation which

most threatens the reliability of our fact-finding process

See eee

other misdemeapor offenses in a morning by granting

delays, accepting pleas of guilty and imposing sentences.

Whenever the visitor looks at the system he finds great

numbers of defendants being processed by harrassed and

overworked officials.

Jones, Ed., THE COURTS, THE PUBLIC

AND THE LAW EXPLOSION 87 (1965).

*"Indeed, inattentiveness has been ranked by one author as

one of the leading causes of incompetence within the judiciary.

Of the inattentive judges he writes:

These men have heard it all before, find judging boring,

or simply couldn’t care less. They lean back with their eyes

closed, read, doodle on/| a legal pad or stare out of the

window. I have watched some talk on the telephone or

hold whispered conversations with aids who want papers

signed while witnesses testify. And this has happened in

non-jury cases.

In Miami Fla., Judge T. leaned back in his

chair with his eyes closed, his arms behind his head, as he

tried two men for running a bookie joint. A few minutes

later he admitted in open court he ‘wasn’t paying

attention’ to some of the evidence.

CRISIS IN THE COURTS, supra n. 18 at 7.

The same problem was also pointed out by the Hon. Myron

Gordon writing about the value of summation in the non-jury

trial:

Before counsel waives oral argument, he would do well

to consider whether the judge may have only appeared to

be listening to the witnesses but did not in fact hear them.

Counsel cannot really be sure that during the trial the

judge was not thinking of some other case (or perhaps

about his troublesome prosiate). ;

Gordon, Non-Jury Summqe‘ions,

6 Am. Jur. Trials 771, 777 £1967).

eee |

22

and which renders closing argument indispensable in a

trial process which is premised on the assumption that a

verdict will be based upon a fair evaluation of the

evidence and not result from cynicism, boredom or

pressure to move on to the next case.

Preclusion of closing argument also undermines the

integrity of the judicial system and the public ‘attitude

toward it. When a trial judge, upon whom the public

looks as the representative of the legal order,”* refuses a

request to argue on behalf of an accused, it appears not

only to the defendant and his lawyer but to all in the

courtroom, that he is arbitrary, possibly prejudiced

against the defendant or has decided prematurely a mat-

ter which is gravely serious to those concerned. Because

society’s prevailing impression concerning the fairness of

our legal institutions depends almost entirely upon obser-

vation of the trial court’s integrity, humaneness and

efficiency,?5 a statute sanctioning the appearance of

arbitrariness and prejudice can only do harm to that

~ THE COURTS, THE PUBLIC AND THE LAW

EXPLOSION, supra n.22 at 125; TASK FORCE REPORT: THE

COURTS, supra n.20 at 65-66.

STHE COYRTS, THE PUBLIC AND THE LAW EX.

PLOSION, supra n. 22-at 125.

23

institution.2 As the late Mr. Justice Frankfurter has

written, “‘justice must satisfy the appearance of justice.”

Offutt v. United States, 348 U.S. 11, 14 (1954).

The facts in this case underscore the importance of

summation in the non-jury context. This was a trial

which involved four witnésses, consisted of three days

of testimony and extended over a five day period

broken up by a weekend. The defense not only

attacked the credibility of the complainant, who admitted

prior drug use and familiarity with appellant, but also

demonstrated a likely motive for Braxton to “fix”

appellant and interposed an alibi corroborated by his

employer that at the time of the crime he was at work.

The only rebuttal to the alibi was that the crime

occurred within walking distance of appellant’s place of

employment and it was possible for him to have

sneaked out to rob the complaining witness.

In short, the evidence was in sharp conflict. and

before coming to its verdict the court had considerable

6 Indeed, many have observed the pervasive belief among the

impoverished and minority group residents of urban ghettos who

enter our courtrooms either as defendants or as relatives or

friends of the defendants, that justice is dispensed on an

assembly-line basis by judges who are of predominantly white,

middle-class backgrounds who are either unaware of their

problems, indifferent to them or actually hostile to them. See

REPORT OF THE NATIONAL ADVISORY COMMISSION ON

CIVIL DISORDERS 337 (Bantam Ed. 1968); Wright, The Courts

Have Failed the Poor, N.Y. Times (Magazine), March 9, 1969,

p. 26; President’s Commission on Law Enforcement and

Administration of Justice, THE CHALLENGE OF CRIME IN A

FREE SOCIETY 127, 128 (1967). Katz, Municipal Courts—

Another Urban Ill, 20 Case West. L. Rev. 87, 90-91, 110, 122

(1968); THE AUTOBIOGRAPHY OF MALCOLM X 149-150

(Grove Press Ed. 1966).

24

detail to weigh. Appellant was entitled to have his

attorney utilize his professional skill in pointing out the

weaknesses in the prosecution’s case and in marshalling

the relevant and material evidence favorable to the

defense into a cogent argument on his behalf. Deprived

of thisSfight, appellant was left to the mercy of the

judge’s subjective and impenetrable view of the case

delivered in the form of a guilty verdict eight minutes

after the close of the testimony.

In sum, Section 320.20(3)(c) of New York’s

Criminal Procedure Law disregards a fundamental tenet

of our jurisprudence—that closing argument is basic to

the concept of advocacy within our adversary system of

criminal justice. A defendant is entitled to have “the

guiding hand”’ of his attorney operate on his behalf in the

fullest sense until the trier of fact retires to deliberate.

Due process of law in this context can mean no less than

Daniel Webster’s often quoted phrase: “a law which hears

before it condemns.”’?”

27See Thomas v. District of Columbia, 90 F.2d 424 at 428

(DC. Cir., 1937).

ne ne ny ee ee mane enemas

ye

CONCLUSION

WHEREFORE, FOR THE FOREGOING

REASONS, APPELLANT PRAYS THE

JUDGMENT BELOW BE REVERSED.

' . Respectfully submitted,

DIANA A. STEELE

WILLIAM E. HELLERSTEIN

The Legal Aid Society

119 Fifth Avenue

New York; New York 10003

Counsel for Appellant