Beecher v. Alabama Brief in Support of Petition for Reconsideration of Denial of Petition for Writ of Certiorari

    IN 3 l)PEEHK COURT
OF TEE

STATE OF ATyARYYA

CO;INFY DANIEL BEECHER,
Pe tit loner ,

v s.
S I A TK O F AIA BA M A ,

Respondent.

BRIEF ~i:n " SITBPORT OF PF/JTITl'ON FOR 
RECONSIDERATION OF UFNTAT. op 

PETITION FOR V’RIT OF CERTIORARI

U. V?. CLEMON 
A DA MS, BAKER &. CLEMON

Suite 1600 - 2123. Building 
2121 Eighth Avenue, North 
Birminghern, .Alabama 3 !">203

ElATKE R . JONES 
• JACK GREENBERG

10 Columbus Circle 
Suite 2030
New York, NAY. 10019 

ATTORNEYS TOR PETITIONER

r



TABLE OF CONTENTS

I. St a temc nt of the Case . • • • * •
II. Staterucnt of the Facts • • « * * • • ■ •

m . Proposit ions of 3 j a w • • • « • • •
IV. Argument • « 9 • # *

1. The Deni a1 Of Certiorari Should Be
Rocon sidored In Light of An
Int erv ening Diecisi.cn of The Supreme
Cou rt of the United Stat OS * * • • * * •

2 . The Deninl Of Certiorari Should Be
Recone icier ed Because The Alabama Court
of Criminal Appe a 3. s C1 e arly Erred In
No t F.i.tiding T‘hat The Dis trict Attorney
Common.ted Implermissibly Upon The
Fci ;i.1 ure Of T)ie Defendant to Testify . .

10
12

12

13

V. Conclusion 21



STATEMENT OF THE C7\SE

On June 26, 1972 the Supreme Court of the United 
Meter reversed petitioner Johnny Daniel Beecher's second
conviction of first degree murder. Beecher v._Alabama, A 08
U.H. 2 34, 92 S.Ct. 2282. The cause was originally set for 
r<-~trial in Cherokee County, Alabama during the first week 
o; October, 1972. However, the trial court granted petitioner' 
)<,.< it ,<m  por A Sanity Inquisition; and by order dated October 
•1, 197 2 petitioner was committed to Bryce Hospital in
Vusealoosu, Alabama for study and observation. On December 
li:, 1 <• v[> tlie Superintendent of the aforesaid hospital sub­
mitted iris report to the court; and petitioner was thereafter 
tvans*erred back to Centre (Cherokee County) Alabama to stand 
tr ) u1 bv order of the court below dated January 12, 1973.

Petitioner was arraigned in Cherokee County on 
March 2, 1973; and trial was set for March 12, 1973.

Prior to the .scheduled trial in Centre, petitioner s 
remise 1 filed several pretrial motions, one of which request­
ed a change of venue on the ground that petitioner coulci not 
obtain a fair trial in Cherokee County because of adverse 
publicity. This motion was denied.

On March 12-13, 1973 the trial court attempted to 
qualify u jury of this cause. At least onc-f.ourth of the 
1 i or.poct i vc- jurors candidly testified on voir dire that be-

1



MilOf of 1
: o? 1 an
u‘(•old to
'■r!b , t he
l ‘ h.J * Jf' 1 * 0 i

u  ia.1 court granted petitioner’s Motion For A

,\ 1 .; 5 i.i: m  f or t r i a 1 •
On April 6 , 1973 petitioner was arraigned in

, , !U)„ (i.avorencc County), Alabama; and ho entered a plea 
t(f (.uil(y» to the indictment returned by the I960

county grand jury charging him with first degree

; . (lb 17).
Prior to trial, petitioner's counsel filed an Appli- 

ion lor A Change of Venue, asserting that because of the 
is>f1 . l o r y  and prejudicial media coverage of the alleged

of his cause, he could not receive a fair trial m
P 7̂  hearing on this motionl„r,;i once County, Alabama. (R. i !>) •

,,„,i „n April 24, 1973 <R. 18). After the hearing, the
wan denied, -0 5 a petitioner duly Accepted. (R. 18, 726) .

Another pretrial motion related to the racial —
;.notion of the jury roll in Lawrence County. In thin Motion
..... c.nnh the Venire, petitioner asserted that the method by
Whirl, juror:-, worn selected in Lawrence county precluded
. ..... live representation Of blacks on juries in the sard
, (-11:1*. y; and that blacks were in fact grossly underrepresen-
t,;l on the venire selected for the trial of Ins cause, ('<• 12,13)-



Petitioner's’counsel petitioned the court for an 
(,;d.T permitting them to inspect the jury roll so as to 
(,,.t (.Il;5im. jt ;; racial composition prior to trial but this 

itio!J Wli;- effectively denied until the commencement of 
, j y o, 11). Evidence on this motion was taken on

•) t 1973; and the motion was denied. (R. 18). 
ionor timely excepted to this ruling of the court.

(k. -if.fi) •
Petitioner's counsel additionally filed a pietrial 

••.■a. ion - To Suppress Evidence, which prayed the court to 
MM>pi-e:;s any and all statements allegedly made by- petitioner 
in..:;;do the presence of his counsel. (R. 14-16). This motion 
v:.c. heard on June 20, 3 973 and it was denied. (R. 1136).
Petitioner- took exception to the denial of the motion
(U. 1 136) . ’•

Trial was initially set for April 23, 1973; but on
the motion of the'State for a continuance because of the 
ill ness of an essential witness, the case was continued for 
trial to dune 18, 1973. (R. 18, 19).

Trial was commenced on June 18, 1973 in Moulton,
Alabama, (lb 22).

Following the State's presentation of its case, 
pet it i oner moved for a directed verdict of acquittal, 
which said motion was denied. (R. 1225). The jury returned 
a verdict of guilt and a sentence of life imprisonment on

3



June 21, 1973. (R. 22).
Petitioner's motion to set aside the verdict as 

beinq contrary to the weight of the evidence and his motion 
for a now trial were denied, and he duly excepted.
(R. 1257, 1258, 1264).

Petitioner's oral notice of appeal to Alabama 
Court of Criminal Appeals was noted (R. 1264); and he was 
granted leave to proceed in forma pauperis (R. 25, 1260) .

On October 11, 1974 the Court of Criminal Appeals 
affirmed petitioner's conviction and sentence. A timely 
petition for rehearing was filed by petitioner; ana oil 
October 29, 1974 the said petition was denied by the Court 
of Criminal Appeals.

Thereafter petitioner sought a writ of certiorari 
in the Supreme Court of the State of Alabama. Petition for 
Certiorari to the Alabama Supreme Court was denied on January 
16, 3875. Petitioner now respectfully moves the Court to re­
consider its decision denying the Petition for Writ of 
Certiorari.

4

« wti’f r— ymfmjmr- («■<



STATEMENT OF THE FACTS

,,r, _Ad dnjm:d_qn Motion To Quash The Venire
Tllo census information introduced at the hearing 

on the notion to Strike the Venire showed that the total 
J..!j-.Mil.it.ion of Lawrence County in 3970 was 2/,281. Of that 
nu:,ju-r 5,114 were black, or 18.7%. The total number of 
j„ ! nor,.'-, over 21 and therefore eligible for jury duty was 
j Of this, 2,355 wore black, or 15.4% (R. 181).

In Lawrence County, the master list of potential
jurorr. is compiled by a three-man Jury Commission appointed
Ly the C.overnor. This Commission is all-white (K. 18 7)- 1
it moots annually to refill the jury box (R. 183). At
nuon meeting the Commission compiles a master jury list
iror-i v.’hich individual venires are drawn. f>

■J’lie process most relied upon in compiling the 
mart.or list is the key-man system. Under that system, the 
Commissioners first assign themselves to specific beats or 
pi cr i nets, which would also include the beat in which they 
1 i v,.(] (k , 189, 234). Because the Commissioners do not
know all residents in each of their beats, they contact a 
loading citir.cn in the beat who recommends names for the

}/ At. the time of the hearing on defendant's motion to 
(mash the venire, one of the three Commissioners was 
deceased. He had been a member for eight years prior 
to his death (R. 182).

'-TV—



... • . Ur.L. This key man identifies those persons on the 
,,on list who qualify for jury duty (R. 186).

The Clerk of Commission, Mrs. Jean Wann, also 
names for the master list. She, too, utilizes the

... . in ...l(.m . she testified that she visits one beat a
oonfnoting friends and relatives who supply her with 

. of "<|ood people in their community" for potential
i-i! V duty (K. 2 67-69) . She also testified that she gathers
, during political rallies in the different boats which

.,t 1 ended predominately whites (R. 273). Her only eon- 
.iU., v.; p, mixed groups was through organizational meetings 
td tin* Community Action Agency held in throe communities m  
5 county (R . 273). She, like the Commissioners, is not
J ami liar with many of the beats. - She was hired m  .1971 

(i\ 266) .
'J'ho Commissioners and the^ Clerk are equally as un- 

1 . uni liar with the blocks in. Lawrence County as they are with 
boats. Commissioner Gentry testified that although he s 

livid in his present beat for 65 years, he would not know 
.,11 black families there (R. 226, 229). Commissioner Wiley

2/ t !,(. }-.oy men are also used to identify persons on the 
pel 1 list who may have died (R. 185)

l// Mrs. Wann testified that she is not familiar with beats 
5, 6, 7, 8, 10, 11 (R. 284).

C



lhat ho knew lose then >00 of the 2,325 black 
in the county (R. 2G0) .

The -Clerk testified that the overall jury list 
 ̂(>*/•> from which the venire for this trial was -drawn 

approximately 3,000 names (R. 377). The names
, according to the beat in which the juror resides,

g.-t ermi ne the total number of blacks on the master list, 
i(1()Iu.r fjrr,t. examined the Commissioners, the Clerk and

, ro,n J.awrenee County who identified the beats wherein 
were- any blacks. After studying the master list, 
witnesses then recited the names they recognized as 
(>1 blacks.4-/ffhis testimony revealed that on the jury 

... , hore were 155 blacks or 5.15 of the total. (K. 319

:g:(>, 3 3 i -- 3 4 , 335-38, 377). -V

'";iy 3332 txtilttz
" t ]».- roll may bo examined m  open court.
'thus blacks wore underrepresented on the overall jury

; ;V 5  s s  ~  &  ;»

1 .i 1 ion, rather than to simply subtract the two i —  
tnues. f.eo Alexander v. Louisiana, 4 0a U.S. 6. >, G2 J 
(1 072) w 1 iere the Suprcmo Court approved this method.

7



It in from this master jury list that names of 
Vt.m remen of grand and petit juries are taken (R. 387).

Oudgo Billy’ C. Burney, Circuit Judge for Lawrence 
(a t y , testified that 15 or 16 venires were drawn in 1972 

Thirteen venires introduced at trial, represent- 
. -lt. least 807 of the total number of venires drawn in 

revealed that those drawn for the criminal docket
ilV,.)-,iqed about 77 names and about 81 for the civil OX.

6/U7) . -y
T)»e percentage of blacks on each of thirteen of

r.i>:t ccn general venires drawn in 1972 ranged from .a low of 
to a high Of 8.37. V Of that total of 1,015 names 

iipjx ng on: those thirteen venires, only 49 V  were black

V

6/ These averages were obtained by adding the total number 
of names on the venires drawn for they criminal and ~..v 
dockers, separately. Then each total was divided b> t . 
number of venires drawn for each docker. _ Of the 13 
venires introduced at trial, three contaxnrng 24 a name , 
were drawn for the. civil and 10 containing 1 70 namu.> - xc 
drawn ior the criminal docket for an average of 81 and 
77 names, respectively.
Those percents,jes represent, those blocks previously idon- 
tifiod as such on the master list and_appearing on 
3 3 individual venire introduced at trial.

8/ The figure of 
and among the

49 represent blacks found on the 
155 on the master list.

13 venire

8



or 4.8%. That those figures arc fair representations of the 
actual number of blacks called for jury duty is supported by 
the figures for the venire for this trial. It was stipulated 
by the parties that of 70 regular and 5 special jurors orig­
inally drawn for this trial in April, 1973, there wore only 5 
blacks, or 6.6% (R. 438). 7\ second venire was drawn in June,
1973. Of 80 jurors summoned, there wore 4 blacks, or 5.0%
(R. 695). Of 58 jurors actually present on day of organization, 
only 3 were blade, or 5.17% (R. 696). The jury which convicted 
petitkrrr was all-white (R. 705) .
Comment on Petitioner's Failure to Testify (R. 1?3,6-123_8l

In the course of his summation to the jury, the Dis­
trict Attorney referred to the confession allegedly made by 
petitioner - to Deputy Sheriff Ken Phillips. (R. 1302). After 
reciting the details of the alleged confession, the District 
Attorney stated, "No one took the stand to deny it." (R. 1237, 
1238). The petitioner's objection and motions for a mistrial 
and a new trial were denied. (R. 1236, 1237, 1238).



PROPOSITIONS OF LAW

THE DENT 
INTERVEN 
REGARD T

Panic]. -■ 
y.'nQor ' 
Dunciiu-J 
HoyI v ■ 
Smith v

I.
AL OF CERTIORARI SHOUI.D BE 
DKG DECISION OF THE UNITED 
'O JURY DISCRIMINATION

RECONSIDERED'IN LIGHT OF AN 
STATES SUPREME COURT WITH

u 1'Q’ii.s .iimo-r 43 U.S.L.W. 3415 (U.S., Jan. to 1975).

. t,ou i niJ.nLL.- 43 U.S.L.W. 4167 (U.S., Jan . 21, 1975).

L._Xauj-DJlURLf 391 U.S. 145 (1968) .
Florida, 360 U.S. 57 (1961).
. Texris, 313. U.S. 128 (1940).

10

* i' *>• -1



II.
THE DENIAL OF CERTIORARI SHOULD BE RECONSIDERED BECAUSE THE 
ALABAMA COURT OF CRIMINAL APPEALS ERRED IN NOT FINDING THAT 
THE DISTRICT ATTORNEY COMMENTED IMPERMISSIBLY UPON TIIE FAIL­
URE . OF. THE DEFENDANT TO TESTIFY . •

]jOrjo v. Twomey, 404 U . S. 4/7 (1.972) .
Fontaine v. Cal 3.fornia, 3 90 U.S. 593 (1.9GB) •
C h a pman v . Ca11 fornia, 3 B6 U.S. 38 (1967).
Griffin v. California, 380 U.S. 609 (1965).
Sellers v. State, 48 Ala. App. 178, 263 So.2d 156 (Ct. Grim.

~ y\pp7 19 /2 ) .

Padgett, v. State, 4 5 Ala. App. 56, 22 3 So. 2d 597 (Ala. Ct. 
o’I’ 7 fp p . TlTfuTt) .

Davis v. U.S., 357 F.2d 438 (5th Cir., 1966).
! 15 F .2d 133 (5th Cir., 1963).Onrcia v . U.S . , i

U.S. v . V’right,

Fow 1 o r v . ii.s., :

St ref' l: v . State,

Jones. v. State,

Jj± itlxn;... V . .Sl.a,l(D

3.1

/



A RGUMENT
. I.

THE DENIAL OF CERTIORARI SHOULD BE RECONSIDERED IN 
LIGHT OF AN INTERVENING DECISION OF THE SUPREME COURT OF THE 
UNITED STATES.

On January 21, 1975, the Supreme Court of the
United States handed down its decision in Taylor v._Louisiana,
43 U.S.L.W. 4167. In that decision, the Court made clear
the relationship between the Sixth Amendment right to trial
by jurv and the Fourteenth Amendment guarantee against the

V
exclusion of blacks from juries. The Court pointed out that 
as long ago as the decision in Smith v . Texas, 311 U.S. 128 
(1940) , it had lie Id that a jury must be "a body truly 
representative of the community." 43 U.S.L.W. at 4169. Thus,

9/ On January 27, 1975, in Da n iol v . Lo u i. s i a n a , 43 U.S.L.W. 
3415, the Supreme Court held that the specific holding 
of Taylor— that the exclusion of women -from juries vio­
lated the Sixth and Fourteenth Amendment guarantee of 
ti'ial by a jury representing a cross-section of the 
community— would be applied prospectively only, primarily 
because of the state's reliance on an earlier decision 
of the Court, Hoyt v. Florida, 368 U.S. 57 (1961), that
upheld the exclusion of women. As is discussed in the 
text, infra,petit ioner here relies not on that holding 
of the Supreme Court, but on the cross-section principle, 
which is derived from Supreme Court decisions dating 
back to 1940.

12



when, in 1900, the Court.held that the Sixth Amendment 
guarantee of trial by jury applied to the states (Duncan
v, Louisiana, 391 U.S. 145), the cross-section requirement 
also became binding on the states. The result is that a 
state not only must not deliberately exclude cognisable 
groups from the jury pool, but also has the affirmative 
duty to utilize methods that will in fact result in the 
full inclusion of such groups. In its discussion of these 
principles, the Court implicitly condemned reliance of a 
"hey man" system that resulted in the under-inclusion of 
blacks. Dee, 43 U.S.L.W. 4169-70, n. 8, and text.

In the present case, petitioner has relied on the 
Sixth Amendment argument and has cited and discussed pre­
cisely those cases relied upon by the Supreme Court in Taylor 
Thus, this case presents to this Court an ideal opportunity 
to give guidance to trial and appellate courts in this State 
as to the standards that should, in light of Tay]or and the
Sixth Amendment requirements discussed therein, govern jury 
selection procedures, and thereby set standards as to an 
important aspect of the administration of justice.

II.
THE DENIAL OF CERTIORARI SHOULD BE RECONSIDERED BECAUSE 

THE ALABAMA .COURT OF CRIMINAL APPEALS CLEARLY ERRED IN NOT 
FINDING THAT THE DISTRICT ATTORNEY COMMENTED IMPERMISSIBLY 
UPON THE FAILURE OF THE DEFENDANT TO TESTIFY.

The record in this case establishes that in the

13



closing argument before the jury which was to adjudicate the 
guilt or innocence of the defendant Johnny Daniel Beecher of 
the crime charged, the State, by the District Attorney, co­
mmented that "No one took the stand to deny it." Defense 
counsel objected to the statement and the objection was over­
ruled by the trial court. An exception was taken. Subse­
quently, defense counsel, outside the presence of the jury, 
made a motion for declaration of a mistrial on the grounu 
that the statement constituted an impermissible comment on 
the failure of the defendant to take the stand.

The closing argument of the prosecution was not 
transcribed. However, in a subsequent colloquy of counsel 
which was transcribed, defense counsel asserted, and the 
District Attorney did not deny, that the Comment had reference 
to the testimony of a key' witness for the State, Deputy 
Sheriff Kenneth Phillips. (R. 1201, 1202) Mr. Phillips had 
testified that while he and the defendant were alone, 
awaiting the verdict of the.jury after a previous trial, the 
defendant made an inculpatory statement. (R. 1102-1110)
Hr. Phillips' testimony in this respect was the only direct 
evidence of the defendant's guilt put before the jury.

The trial court denied the motion for.mistrial.
The Court found that the statement was not violative of 
Title 15 § 305 of the Alabama Code nor of the Fifth and 
Fourteenth Amendments to the United States Constitution.

14

rr»**-*r**: >r-«~ ** -



The trial court stated:
I don't construe the statement as a 
comment on the failure to take the 
stand. As I understood it, it was 
the —  the statement was undenied, 
and that has been held to be not a 
comment on the statement. (K. 1199)

The Alabama Court of Criminal Appeals affinned the
trial court's ruling by a decision dated October 1, 1974.
Petition for Certiorari, to 
denied on January 16, 1975.

the Alabama Supreme Court was 
(Three Justices dissented from

the denial of the Writ Mr. Justice. Maddox explicitly 
dissented on the ground that he would, review the cpic-.st.ion 
concerning the comment of the District Attorney.) Tt is
respectfully submitted that the Court of Criminal Appeals 
erred in not finding the prosecutor's staterrw-nL. to )>«.- imper­
missible, as will be shown fully below.

Section 305 of the Alabama Code explicitly prohibits 
any comment to a -jury by a prosecutor concerning a criminal 
defendant's failure to testify, as the Court of Criminal 
Appeals properly noted. That section provides:

On the trial of all indictments, com­
plaints, or other criminal proceedings, the 
person on trial shall, at his own request, 
but not otherwise, be a competent witness; 
and his failure to make such a request shall 
not create any presumption against him, nor 
be the subject of comment by counsel. li­
the solicitor or other prosecuting attorney 
makes any comment concerning, the defendant's 
failure to testify, a new trial must bo 
granted . . .
This section of the Code pre-dates and is consistent

15

/



with federal, decisional law 
right against self-incrimina 
Amendments to the United Sto
Fontaine v. Ca 1 i. forni a , 390
Ca1i tornin, 386 U.S. 18 (196

upholding a defendant's cherished 
ti.on under the Fifth and Fourteenth 
les Constitution. See, c . g .,
U.S. 593 (1960); Chapman v.
7); G r i f f i n v . Ca 3 1 f o r n i.a , 380 U.S.

6 09 (196 5).
jr) construing the statute, the courts of Alabama have 

adopted a standard of "reasonable interpretation" based on the
iem. Street v. State, 266 Ala. 209,fa c t s o f each case be fore

96 So .2d 080 (1957). See
4 41 (5th Ci r ., 1966). If
reina rk s before a jury is
defen dan t's failure to fa]

10/
C] j.'. ci i j l.c-d. Sellers v. St.a b
Grim. App. 1972); Sirect ■

to directly call its attention to a

2d 681 (Ct. of App., 1930).
To be sure, in some instances indirect references may­

be made by a prosecutor to the failure of the defense to conh.ro-

IQ/ This is so in part because
The office of the solicitor is of the highest .impor­

tance; he is the representative of the state, and as a 
result of the important functions devolving upon him as 
such officer necessarily holds and wields groat power and 
influence, and as a consequence erroneous insistences and 
prejudicial conduct: upon his part tend to unduly prejudice 
and bias the jury against the defendant . . . The test in
matters of this kind is not necessarily that the conduct 
of the solicitor complained of did have such effect upon 
the jury, but might it have done so?
*J'ay 1 or v . 81<'> to , 116 So. -'ll5 (1928).

16



vert evidence in a case. But such references will be sanctioned 
only where the "defendant is not capable of contradicting the 
State’s proof. If the prosecutor's remarks can be interpreted 
as referring to the failure of the defense to produce as witness­
es existing persons other than the defendant who should be in a 
position to testify in his favor and who arc known to him, then
the qeneral rule stated above applies and there is no violation

11/
of the statute." Sellers v. State, supra at IS5 __. This is
not such a case. In this case it is plain that the prosecutor's 
comment violated the statute and state and federal decisional
lav/.

First of all, there were only two people present in
the room when defendant Beecher presumably made his inculpatory

12/
statement •—  Deputy Sheriff Phillips and Mr. Beecher. Thus, any

13/ See also, Garcia v . United States, 315 F. 2d 133, 137 (5th 
Cir. 196 3). In Garcia, the Court "found that a reference by 
the prosecutor to "uncontradicted" evidence of the defen­
dant's guilt did not abridge his Fifth Amendment: rights 
only because the remark of the prosecutor could have been 
understood by the jury to have reference to the failure of 
the defense to call an eyewitness to the crime charged. In 
U.S. v. Wright, 309 F.2d" 735 (7th Cir. 1962), the Court rea­
soned similarly, stating in support of its finding that the 
prosecutor's remark was not improper:

The lanqucige was a general comment on the fact 
that the government evidence was wholly unre- 
futed. Defendant was not the only one who 
could have contradicted the government's testi­
mony. The evidence shows that others were present 
during several of the conversations or incidents 
relied on by the government in support of its case 
against defendant. Id. at 739.

12/ At the hearing held by the trial court outside the presence 
of the jury on the question of the voluntariness of the 
statement, Mr. Beecher denied having made the inculpatory 
statement attributed to him by Deputy Sheriff Phillips.

17



reference by the prosecutor that "no one took the stand to
deny it [Mr. Phillips' testimony in this regard]" could
only have drawn the jury's attention to the fact that the
defendant Beecher had not taken the stand. No one else was
in.a position to contest the Deputv Sheriff's version of the 

33/
fa els.

Second, even if the prosecutor's remark had been 
addressed to the testimony in Die case in general, the remark

]jy/ in Padgett v. State, 45 Ala. App. 56, 223 So. 2d 597 (Ala. 
Ct. of App. 1969), on analogous facts, the Court, in a 
learned opinion, reversed a conviction on grounds that' 
the prosecutor’s remark to the jury could, only have been 
interpreted to be an illegal comment on the failure of 
the defendant to take the stand. Quoting from State v. 
Sinclair, 49 M.J. 525, 231 A.2d 565, the Court said:

"Every time a prosecutor stresses a failure 
to present ' testimony, t he facts and circumstances 
must be examined to see whether the defendant's 
right to remain silent has been violated . . . We
do not mean to preclude the legitimate inferences 
from non-production of evidence to which the 
prosecutor may fair3.y refer . . . However, in the
present case we think that the repeated remark that 
Friedman's testimony was 'uncontradicted' —  in view 
of the testimony showing that only Sinclair and his 
co-defendant could deny the testimony of Friedman —  
did raise a danger that the jury would draw an im-. 
proper inference from Sinclair's failure to take the 
stand."
The Alabama Court of Criminal Appeals, accordingly, re­
versed defendant Padgett's conviction since in his case 
the on]y person who could have contradicted the State’s 
evidence was Mr. Padgett himself.

18



v/ns prejudicial and reversible error. This is so because there 
vore no other witnesses known to the defendant who ought to 
have been in a position to testify in his favor. Indeed, the
d e f c s e call e d no witnesse s at the trial. Therefore, this
case does not fall within the long line of cases.which have
uphe3 d remarks of the type involved in it because such remarks
have have only indirectly called attention to the defendant's 
failure to take the stand. The relationship between the prose­
cutor's remark and the defendant's failure to take the stand is 
clear and not cast into question by possible interpretation 
that the remark, was only an allusion to other potential 
witnesses who might have testified in the defendant's behalf.

Third, the Court of Criminal Appeals erred in not 
finding the remark of the prosecutor impermissible because it 
assigned the burden of proof of showing impropriety of the 
remark tc> the defense. The Court said in its opinion in 
essence that since it found the context in which the prosecutor 
made his remark unclear, the defense had not sustained its 
burden of showing impropriety of the remark. This was 
plainly improper. In dealing with questions of fundamental 
rights, the United States Supreme Coux £ has long held that the 
burden of challenging an impropriety by the State is on the 
defense, but the burden of proving that no constitutional 
abridgement has occurred is on the State. The Fifth Amendment 
right against self-incrimination under the United States

19

/



Constitution is the underpinning of the adversarial, as opposed 
to inqudsatorial, system of criminal justice. In any criminal 
prosecution, therefore, the burden is always on the state to 
establish guilt beyond, a reasonable doubt. A conviction based 
on anything less than proof beyond a reasonable doubt is an 
abridgement of that Fifth Amendment right. So too, any convic­
tion based on a record where the State has not established, 
where challenged, an absence of an infringement upon a Fifth 
Amendment right by a fair preponderance of the evidence is un­
lawful. See, e .q ., Lego v. Twome.y, 404 U.S. 477 (1972). In
Lego y . Twomcy, supra, the Court held that the burden of 
establishing voluntariness of a confession is on the State; the 
burden is not on the defendant to establish invo3.untari.ness.
By parity of reasoning, the same burden must be placed on the 
State in this case. Thus, if there was any question as to the 
context in which the prosecutor's comment was made in this case, 
the Court of Criminal Appeals should have res'olved the question

* 14/in favor of the defendant. Having failed to do this, the Court

Indeed, in Fowler v. United_States, 310 F.2d 66 (5th Cir.
1962), the Court ruled that it could not determine_if 
prejudicial comments by the prosecutor in the closing 
argument had been made because the closing arguments had. 
not been transcribed as was the custom of the trial court. 
Absent a reliable record of the proceedings, the Court 
found that a new trial must be had, indulging thereby, 
every favorable presumption for the defendant.

20



erred in resolving the issue in favor of the State

CONCLUSION

• For the reasons herein set forth, it is respectfully 
prayed that this Court reconsider its decision denying a Writ

of Certiorari.

Re s pe c t fu 13. y s ubm i 11 e d ,

U. VI. CLEMONA Do MS, BAKER, & CLEMON Suite 1600 - 2121 Building 
2121 Eighth Avenue, North 
Birmingham, Alabama 3132 03

ELAINE R. JONES 
O’ACK GREEN BE’3010 Columbus Circle 

Suite 2030
New Yo r k , 'W. Y . 3.0 019

ATTORNEYS TOR PETITIONER

21



CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of January,
1075, I have served a ‘copy 'of the foregoing brief on

The Honorable John T. Black 
District Attorney 

DeKalb County Courthouse

Bax Ic-y,

Building

by mailing a copy of same to thorn, postage prepaid.

Fort Payne, Alabama
The Honorable: Wi.T liam 

At Lome y Conors! 
State of /Alabama 
/vd.minis(rat jvo Office 
Montgomery, Alabama

U. V7. C DEMON'