Pugh v. Hunt and Cavanagh v. Brock Amendments to Pre-Trial Order
Public Court Documents
July 21, 1983
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Case Files, McCleskey Background Materials. General - Miscellaneous Research Vol. 1 of 3, 1987. c109d976-5aa7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d8da907e-c0eb-4c0b-8126-5b4d155b24e1/general-miscellaneous-research-vol-1-of-3. Accessed August 19, 2025.
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MEMORANDUM
To: Jack Boger
From: Ann Hester
Date: September 20, 1990
Re: McCleskey Case
Introduction
As vou asked, I looked into the following three topics:
{1} Booker v. Wainwright, 764 F.28 1371 411th Cir. 1985) and
Gullett v, Armontroul, 894 F.24 308 (8th Cir. 1990). Can we
distinguish or counter them? The facts of both cases are
wm foi
e
Bo
d J go
= f
t
o
d
distinguishable, primarily because the petitioners
cases knew all the facts making up their claims at the time
the first petitions were brought. That they were not able to
apply the law to know that they had a claim at the time of the
first petition does not enable them to avoid a finding of
abuse of the writ.
(2) Is there a recent Rule 9 case on successive petitions and
abuse of the writ in the 9th Circuit? The most frequently
cited case in recent vears is Harris v. Pulley, 852 F.2d 1540
{oth Ciy. 1988). Several recent cases discuss the rule in
Harris.
(3) Findings on the irrelevance of the Depree opinion. Aside
from the "clearly erroneous" standard for reviewing the fact
- a
district court, 1 looked at two arguments that
J
findings of the ~
we could present to keep the Court from considering the
Depree opinion:
(i) Rule 10(e) of the Federal Rules of Appellate Procedure.
Rule 10(e) allows the parties to supplement the record on
appeal in some circumstances. This rule has been interpreted
in most jurisdictions to allow supplementing the record only
to introduce a matter heard in the trial court, not to
introduce evidence not considered by the trial court.
(ii) Collateral estoppel may prevent parties from
relitigating an issue that has already been litigated against
one of the parties. However, for nonmutual offensive
collateral estoppel to apply (same defendant, different
plaintiff), the defendant cannot be the government
Discussion:
(1) The Booker and Gullett decisions.
In Booker v. Wainwright, 764 F.24 1371, the petitioner's
trial attorney was also counsel on his first series of habeas
petitions. After the first habeas, petitioner got a new
attorney. Id. at 1374. The second habeas petition raised six
claims that had not been raised before; the trial court found
that Booker abused the writ by bringing a claim of ineffective
assistance of counsel in the second habeas petition. Id. at
1374-75. The other claims were barred by procedural default.
1d. at 1375. Booker asserted that he did not intend to omit
the claim in the first petition--he simply believed he could
not raise it. Id. at 1374.
The only witness at the hearing on the second habeas
petition was the petitioner's trial attorney. Id. The
attorney testified that he had advised Booker of the
ineffective counsel claim and that Booker would have to get a {
new attorney if he wanted to raise the claim. The attorney
also promised to help Booker get another lawyer if he wanted
to raise the claim, telling Booker that the time to raise the
claim was in the first petition. Booker told his trial
attorney that he would "stick with" him. Id. at 1375.
In analvzing Booker's claim, the court laid out two
possibilities for avoiding a finding af abuse of the writ when
the petitioner brings a claim for the first time on a
successive petition. First, "[tlhe petitioner may avoid
dismissal if he proves by a preponderance of the evidence that
he was ignorant of facts necessary to support the new ground
when he filed his prior federal habeas corpus petition." Id. ,
at 1376. Alternatively, the court asks whether the petitioner
knew the claim was legally possible at the time of the first
petition. Id. The court qualified the second possibility by
stating that it was not necessary "to explore whether [the
petitioner] had, at the time of his first filing, considered
ineffectiveness in the context of the particular facts that he
later asserted entitled him to relief.” Id. at 1377.
The court denied Booker relief based on the fact that
Booker knew the claim was legally possible and knew that he
had the means to pursue it at the time the first habeas
petition was filed. Id. Although «¢ L)
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41
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‘
T
Y
McCleskey knew his claim was legally possible and knew he had
the means to pursue it as evidenced by filing the Massiah
claim in the first state habeas petition, the cases can be
distinguished because Booker was fully informed of all the
facts and knew the claim was possible; he merely made a
tactical decision to continue with his trial counsel instead
of pursuing the ineffective counsel claim, probably believing
he was better off with the lawyer than with a guestionable
claim.
Interestingly, the court set up a scenario where a
betitioner would be able to raise the ineffectiveness claim
for the first time in a second petition. The court, referring
to In rr Shriney, 738 F.28 1236 {11th Cir. 1984), stated that
a petitioner could raise the claim if the habeas counsel had
prepared a petition failing to challenge trial counsel's
effectiveness when habeas counsel actually believed he had not
po
ts
ui
provided effective assistance at trial, or if his attorney led
him to believe that he had no alternative but to be
represented by trial counsel in the habeas proceedings. Id.
at 1378. Thus the court basically stated that if the
attorney's improper behavior kept the petitioner from knowing
of his claim, the petitioner could bring the claim in the
OQ
second petition. This scenario could be compared to the
scenario in McCleskev where the state interfered with
McCleskevy's knowledge of the facts leading to his claim .
In Gullett v. Armontrout, 8%4 F.2d 308 (8th. Cir. 1990),
the petitioner asserted 15 claims in his second petition,
three of which were on appeal. The first two claims were
dismissed for abuse of the writ. The petitioner claimed that
an unduly suggestive photo display and an unduly suggestive
J hysical lineup had tainted the victim's identification of - rr
f
him. This case is similar to McCleskey because the petitioner J
had raised these claims in state court proceedings. The court
found that a finding of abuse of the writ was correct because
the petitioner "must have known of this claim at the time of
the first petition because he raised it before the state
courts." Id. at 310.
p ry fo foe 3 ~ I TS TIT Foe y ~~ Yu Af gm oe om rs In vg yw ge yom — me Gullett, is distinguishable from McCleskeyv because, as
was the case in Booker, the petitioner knew of the facts and
the law at the time of the first petition. There was no new
finding of fact in either case between the first petition and
2. The Ninth Circuit standard on abuse of the writ.
Ninth Circuit set forth a three-part test to determine if
there has been an abuse of the writ under Rule 9(bh). Claims
brought for the first time in a successive petition must be
adjudicated on the merits unless "{(1)the petitioner has made a
conscious decision deliberately t o> withhold them, (2) is
sursuing ‘needless piecemeal itigati 2 © - —
the claims only to 's harass, or delav,'"” Deutscher v.
This standard is lenient enough that in Harris, where previous
counsel failed to make a claim, not consciously,
he "missed it," the petition was not an abuse of
3. The irrelevance of the Depree opinion.
The point of departure for attacking the submission of
the Depree opinion is, of course, the "clearly err
vl
but because
standard of Rule 52(a). Since the district court's fact
findings were not clearly erroneous, the Supreme Court should
10t be making new findings of fact and should not pay
attention to Depree. The policy behind Rule 52(
trial court is in the best position to evaluate
especially witness testimony. The United States
has noted that "it is the function of the Distri
rather than the Court of Appeals to determine the
al) is that the
evidence,
supreme Court
ct Court
refusing to allow the Court of Appeals to supplement the
District Court's fact finding by drawing factual
<4 conclusions
from an inference made by the District Court. Murray v.
The same policy stands behind Rule 10(e) of
Rules of Appellate Procedure. Rule 10{(e) allows
appeal to be supplemented, but generally only in
where material presented to the trial court was
omitted from the record on appeal. "The purpose
United States, 487 U.S. 533, 543 {(1987){(Scalia op.)
the record on
instances
somehow
of Rule 10(e
8]
ty
is to ensure that the court on appeal has a complete record «
the proceedings leading to the ruling appealed from, not to
facilitate col
does not give this court authority to admit on appeal any
document which was not made part of the record in the district
gourt.'": 0.8, v. Hillsbeve , 812 'F,.24 328, 336 (7th Cir. 1287)
{citing Borden Inc. v. Federal Trade Commission, 495 F.2d 785,
788 (7th Cir. 1974); Republic Steel Corp. v. Pennsvlvania
Engineering Corp, , 785 F.28 174, 179 nn, 6 {7th Cir. 1986)).
"New proceedings of a substantive nature, designed to supply
what might have been done but was not, are bevond the reach of
the rule.” U.8. v. Johnson, 713 7.24 633, 648 {11th Cir.
1983) {(guoting United States wv. Page, 661 F.2d 1080, 1082 (5th
Clr. 1881), cert. denied, 455 1.8, ‘1018 {1982)}1,
The U.S. Supreme Court, although not referring to Rule
10(e}, has also refused to consider evidence outside the
record on appeal. Ciucci v., Illinois, 356 U.S. 571, 573
(1957). The petitioner in Ciucci appended newspaper articles
to his brief tending to prove that the prosecution intended to
prosecute the defendant separately for the murder of his wife
and three children until a jury recommended a death sentence.
Id. The Supreme Court noted that these articles and their
subject matter were not part of the record on appeal and based
its decision only on the record. Id. Justices Frankfurter and
Harlan, "although believing that the matters set forth in the
-
aforementioned newspaper articles might, if established,
require a ruling that fundamental unfairness existed here,
(w]
[&]
concuri{red] in the affirmance of the judgment because this
material, not being part of the record, and not having been
131
id.
Although the circuit courts in the cases that I looked at
did not discuss Ciugci in their consideration of Rule 10(e}
motions, the basic idea is still the same: a court of appeals Ww
ti
will not hear evidence not heard before the trial court.
Johnson v, U.S. is an good case for us. The defendants
in Johnson made a motion to dismiss the indictment and
referred to similar issues pending in a related case instead
of establishing facts in the record to sustain the motion.
713 F.2d at 648. The a
record in the other case to be admitted into the record of the
case on appeal, saving: "[ilf a defendant seeks to satisfy ui
this burden by relying completely on the proceedings in ver
3} another action, he must, at a minimum, either obtain an order
from the district court authorizing the incorporation of the
record developed in the other case or enter a stipulation with
the government for that purpose.” Id. Although Ross v. Kemp
¥
785 F.2d 1467 (11th Cir. 1986) holds that the appeals court
has an "inherent equitable authority to enlarge the record and
consider material that has not been considered below," the
court stated that it has "refused to supplement the record
when a party has filed supplemental material without
requesting leave cof this court or has appended material to an
at 1474-75. Thus, even if the respondent in McCleskevy
attempts to argue that the court should consider the Depreec td { (4
1)
opinion for equitable reasons, the respondent didn't file a
motion to supplement, so their appendix should not be
considered.
The Eleventh Circuit interprets Rule 10(e) more broadly
than have the other courts of appeals. By circuit, other
pplving Rule 10(e) follow: G Wu
tn
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mn
41]
1st Clyouit: U.85. v. Thomann, 609 7.28 B60, 566 (1979).
3d Circuit: Drexel v. Union Prescription Centers, Inc., 582
F.28 781, 184 n.4 (1972). "It is hornbook law that this court
generally cannot consider evidence which was not before the
court below.
oy
th Circuit: Salama v. Virginia, 605 F.2d 1329, 1339 (1979). 4
th Cir.: Huelsman v, Civic Center Corp., 873 F.2d. 1171
9th Cir.: Townsend v. Columbia Operations, 667 F.2d 844, 848-
49 (1982). This case is an example of what is appropriately
submitted under Rule 10(e). The four documents at issue were
accidentally not filed in the record. They had been submitted
at the request of the district judge, physically present in ®
y
the courtroom, relied on by both sides, and were the basis for
~~ yoy oe
court's the district
"their inclusion by order
what actually occurred in the distric
the situation for which the cited Rule
310th Circuit: Anthony v. I1.8,, 667 F.24 870
defendant appended additional affidavits of
affidavits were presented before the
court refused to consider the new affidavit
not part of the record on appeal. "F.R.A.P.
a party to supplement the record on appeal.
not grant a license to build a new record.”
3. Collateral Estoppel.
Collateral estoppel applies jo
ss
cases. Ashe v. Swenson, 397
Oppenheimer, 242 U.S. 85 (1916). There are
requirements to apply
under Fed.R.App.P.
court and
distri
n criminal
10
ircuit stated that
10(e) reflects
is exactly
witnesse (!
] 47}
ch court. The
because they were
Rule 10{(e)
does However, it
cases
{1%70), 00.8, vv.
two general
{1} The issues on
which collateral estoppel is being asserted must be identical,
and (2) The person asserting estoppel must show that the
issue was actually litigated and decided in the prior action
and was necessary to the court's judgment. J. FRIEDEH M. KAaHE
& A. MILLER, CIVIL § 14.11 (198%). Although persons not
parties in the first action were not at one time allowed to
wow federal
old
fendant claims against new
courts allow both
defendant) and
plaintiff)
fe
r
p
e
t
onmutual collateral estoppel. See Bonder-Tongue Laboratories
< Cl
5 fi
de
< ® by ow p
t
A V of Illinois Foundation, 402 U.8. 313 (1971)
{defensive nonmutual collater po
d
MD
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c
t
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jo
J fu
HH ed
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(1)
po”
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fe
te
iy H
1 ~~ - ot Te me = Xn T ft 3 yy ~ f~ 3 £3) { — op gma gy 3 . Company v. Shore, 439 U.S. 322 (1979) {court endorsed the
complete abandonment of the mutuality requirement).
Without the mutuality requirement, Depree should hav
been able to claim collateral estoppel on the Massiah issue,
and the McCleskey district court should not be disturbed bv a
L
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ever,
IT Q = / gaa ri Tim Fen te “Py om ~ Tom 7 += om wo SL U.S. 154 (1983), which holds that the United States government
cannot be collaterally estopped from litigating
decided adversely to it in an earlier lawsuit brought by a
different party. Id at 155. Justice Rehnquist, that great
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Anotiner possibie argument that occurs to Ls to claim a
r - SAE ~SE S Sgey = RTE | y SE A Tg peg Tom ~ gio 1 ~r1ey iy +} ov — violation of the double jeopardy clause. Although this is
— 3 3 j — - ’ _ — pp | res still the same case on appeal, we could ar
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prosecution in McCleskey's second habeas hearing didn't get
what they wanted;
AE ATION LY) A nr STE IL AATIOH FOR A RENFARIEG
JUN 33587
Motion for Reconsideration
44381. NAPPER v. GA. TELEVISION CO. d/b/a WSB-TV et al.
Marshall, Chief Justice.
Please substitute the attached new pages 16 - 27 for the
ones previously circulated.
the continued interest in the questions left unanswered by
the closing of the Task Force investigations five years ago.
Were the investigations conducted properly? Why did the
investigations of so many murders result in the prosecution
of only one suspect? what evidence supports the Task
Force's conclusions that Wayne Williams committed all of the
tcleared' murders? The answers to these questions lie, if
anywhere, in these closed investigative files.”
{C) In our opinion, the"trial court did.not err in
ruling that the pendency of Wayne Williams' habeas-corpus
petition does not justify a planket non-disclosure of the
files in the "pattern" and "conviction" cases.
The evidence certainly authorized the trial court in
finding that the ‘investigations in those cases have
concluded. “We cannot agree that the public interest in
favor of disclosure is outweighed by the public interest in
favor of non-disclosure based upon the possibility that a
retrial might be ordered in post-conviction proceedings. As
indicated in Cannington wv. State, supra, post-conviction
collateral-attack proceedings are of an indeterminate
duration. To hold that the pendency of such proceedings
requires a blanket non-disclosure of the investigatory case
files would, as argued by the appellees, eviscerate the
Public Records Act in this area. :
We hold "that once the trial ‘has been held, :'the
conviction affirmed on direct appeal, and any petition or
petitions for certiorari denied (including to the Supreme
16
Court of the United States), the investigatory file in the
case should be made available for public inspection. If
there are any specific items in the file which are exempt
from the disclosure provisions of the Act, or which in the
public interest should not be disclosed, the burden is on
the party opposing disclosure to make this showing.
Likewise, if there is information, the disclosure of which
would jeopardize a future law enforcement proceeding, see
Robbins, supra, the burden is on the party opposing
disclosure to make that showing. In our opinion, these
burdens have not been met here. ;
2. Did the trial court erroneously order the disclosure
of information which is exempt from disclosure by various
statutes?
(a) First, the appellant argues that the trial court
erroneously ordered the disclosure of motor-vehicle-
registration information contained in several of the files.
Subsection (d) of § 10 of the "Motor Vehicle Certificate
of "Title Act™ (OCGA § 40-3=-24 (d)) provides that motor
vehicle records which the State Revenue Commissioner is
required to maintain are "[e]lxempt from the provisions of
any law of this state requiring that such records be opened
for public inspection; provided, however, that the records
of any .particular: motor wvehicle 'may..be avallable for
inspection by [among others] the following: (1) Any law
enforcement officer’ .- .. . "
It appears that during the investigation of "The Atlanta
1.7
Child Murders," law-enforcement officers utilized OCGA §
40-3-24 (d) (1) to inspect motor-vehicle records of various
automobiles, and some of this information was incorporated
into various of the case files.
We hold that although these records are not open for
public inspection under the Public Records Act, this does
not preclude public disclosure where a law-enforcement
officer who has inspected the records incorporates
information therefrom into an investigatory case file.
(b) The appellant argues that various of the files
contain information regarding 2 Llegations of child abuse,
molestation, or neglect, and that such records. ‘are
confidential pursuant to OCGA § 49-5-40.
OCGA °‘§ 49-5-40 " provides, "Each and every record
concerning reports of child abuse and neglect which is in
the custody of the [Department of Human Resources] or other
state or local agency is declared to be confidential, and
access thereto is prohibited except as provided in Code
Section 49-5-41}1." However, under OCGA § 49-5-41 (a) (2),
where a court considers it necessary for the resolution of
an issue before it, the court may order the disclosure of
the information. Rav: v, Dept. of Human ‘Resources, 155 Ga.
App. 81 (1) (270.8E24 303) (1980).
{CH The appellant argues that some of the requested
documents contain information gained through wiretaps, and
that OCGA § 16-11-64 (b) (8) prohibits the public disclosure
of such information.
18
OCGA § 16-11-64 (b) (8) provides that "[alny publication
of the information or evidence obtained under a warrant
[authorizing the use of a device for the interception of
wire or oral transmissions, i.e., a wiretap] other than that
necessary and essential to the preparation of and actual
prosecution for the crime specified in the warrant shall be
an unlawful invasion of privacy under this part and shall
cause such evidence and information to be inadmissible in
any criminal prosecution."
We, therefore, agree with the appellant that the trial
court should have deleted from the subject documents,
information obtained under a warrant authorizing a wiretap.
(4d) The appellant argues that most of the case files
include the criminal histories of various individuals, i.e.,
the names and addresses of persons who have been arrested on
prior occasions, information regarding the offenses
involved, the disposition of the ‘cases, and in. some
instances photographs of the arrestees. The appellant
contends that under the statutory provisions under which the
Georgia Crime Information Center (GCIC) was established,
OCGA § 35-3-30 et seq., this information is not subject to
public disclosure.
OCGA § 35-3-30'{4) (A) defines "criminal history record
3 ; 4
information." OCGA § 35-3-34 (a). {l1) authorizes the GCIC
to make records of adjudications of guilt available to
private persons and businesses under certain circumstances.
OCGA § 385=3-33 (10) authorizes: the GCIC to make available,
19
upon request, to all local and state criminal justice
agencies, all federal criminal justice agencies, and
criminal justice agencies in other states any information in
the files of the center which will aid these agencies in the
performance of their official duties. OCGA § 35-3-37 (a)
provides, "Nothing in this article shall be construed so as
to authorize any person, agency, corporation, or other legal
entity to invade the privacy of any citizen as defined by
the General Assembly or the courts other than to the extent
provided in this article."
We hold that where teriminil history record information"
has been incorporated by a law-enforcement agency into an
investigatory case file, it should be open for public
inspection unless its disclosure would constitute an
invasion of privacy. See Division 3, infra.
(e) Medical records are exempt from the provisions of
the Open Records Act only to the extent that disclosure
would be an invasion of personal privacy. OCGA § 50-18-72
(a).
In the files concerning several of the victims, the
court, in refusing to delete the medical records, concluded
that "the privacy interests of the deceased are outweighed
by the interests of the public favoring disclosure.” The
appellant argues that the. trial court committed error here,
in that the balancing-of-interests test is utilized only
where the subject information is not otherwise exempt from
disclosure. We disagree. In determining whether the
20
invasion of privacy is warranted or unwarranted, the
question can be stated in terms of whether the privacy
interests of the deceased are outweighed by the interests of
the public favoring disclosure. Fund for Constitutional
Government v. Natl. Archives and Records Service, 656 F2d
856, 862 (D.C.C.A. 1931).
We cannot say that the trial court abused its discretion
in refusing to order the deletion of the medical records of
the victim, or other medical and mental-health information.
(£) The appellant argues that the information in some
of the files was obtained through hypnosis of witnesses and
is, therefore, privileged under OCGA § 43-39-16.
However, the privilege established by OCGA § 43-39-16
pertains only to "confidential relations and communications
between a licensed applied psychologist and client." And, §
43-39-16 does not exempt communications made by a witness
for the prosecution during hypnosis conducted for
prosecution purposes. Fmmett.v. Ricketts, 397 FSupp. 1025
{N.D.Ga 1975).
(g) The appellant argues that some of the files contain
information compiled by the Federal Bureau of Investigation
in the course of its investigation. of "The Atlanta "Child
Murders," and ‘that: this information is exempt from
disclosure under Exemption 7 {CY of the FOIA. 5: Ue SC onS
552 {(b) (7). (C).
Exemption 7 (C) protects "[ilnvestigatory records
compiled for law enforcement purposes, but only to the
21
extent that the production of such records would . . .
constitute an unwarranted invasion of personal privacy."
Our treatment of this Exemption will be discussed in
Division 3, supra.
(h) The appellant argues that records related to
arrests and criminal histories of juveniles are not subject
to the Open Records Act, in that under OCGA § 15-11-59 (b),
these records are not open for public inspection unless "a
charge of delinquency is transferred for criminal prosecu-
tion under {ode Section 15-11-39, or the interest Of
national security requires, or the court otherwise orders in
the interest of the child . . .. 2"
However, as.argued by the appellees, all references to
juvenile records were deleted.
(1) The appellant argues that one file, that of
Christopher Richardson, contains public-school attendance
records, which under OCGA § 20-2-697 "shall be open to
inspection by the visiting teacher, attendance officer, or
duly authorized representative" and "shall not be used for
any purpose except providing necessary attendance infor-
mation required by the State Board of Education, except with
the permission of the parent or guardian of a child or
pursuant to the subpoena of a court of competent juris-
diction.”
In addition, ‘a written summary of a public-school
disciplinary proceeding, which includes a description of the
incident and the disposition thereof but not the names of
22
any party to the incident, is a public record under OCGA §
20-2-757 (c).
After reviewing the file concerning Christopher
Richardson, we find no public-school attendance records or
records of public-school disciplinary proceedings.
(j) The appellant argues that under OCGA § 43-36-15 (a)
(3) (D), "A polygraph examiner shall not release the results
of a subject's examination unless the examiner has obtained
the prior written permission of the subject." However, the
appellees point out that a polygraph examiner may disclose
information acquired from a polygraph examination to any
person pursuant to and directed by court order. OCGA §
43-36-15 (a) (4) {CY
3. Did the trial court err in ordering disclosure of
information which infringes upon the privacy rights of
various individuals?
In Fund for Constitutional Government v. Natl. Archives
and Records Service, 485 FSupp 1 (D.CD.C.+1979}), the
plaintiff was requesting disclosure under the FOIA of
voluminous documents generated by the Watergate Special
Prosecution Force (WSPF) during the course of various of its
investigations. In issue was Exemption 7 (C) of the FOIA,
which, as previously stated, exempts from compulsory
disclosure "[i]lnvestigatory records compiled for law
enforcement - "purposes, but only to the extent that the
production of "such srecords would +» constitute an
unwarranted invasion of personal privacy."
23
Citing Committee of Masonic Homes v. N.L.R.B., 414 FSupp
426, 431 (E.D.Pa, 1976), the federal district court held
that this exemption "would apply to matters which under
normal circumstances 'would prove personally embarrassing to
an individual of normal sensibilities . «.. .'" 485 FSupp
at pe. 6. Under this standard, the court held that 1infor-
mation in the files identifying individuals who, though
investigated, were not indicted or prosecuted for a crime,
should be exempt from disclosure. In addition, ‘the court
held that information revealing the identity of a confi-
dential informant should not be disclosed. ® And, as we read
the decision, the court also held that information in the
files, which would prove personally embarrassing to
individuals who were not the targets of the investigation,
likewise should not be disclosed.
On appeal, the federal Court .of Appeals held that "the
district court properly applied the claimed exemption to the
information in question. Fund for Constitutional Government
v. Natl. Archives and Records Service, 656 F24 856 (D.C.C.A.
1981).
In this regard, the Court of Appeals observed that the
prosecutor's decision to prosecute is based on variant
factors and is rarely subject to judicial review. The Court
of Appeals also noted that information that individuals had
been the subject of a criminal investigation "would produce
the unwarranted result of placing the named individuals in
the position of having to defend their conduct in the public
24
Sad
forum outside of the procedural protections normally
afforded the accused in criminal proceedings." 656 F2d at
Pe. 865. In sum, the Court of Appeals held that "the
legitimate and substantial privacy interests of individuals
under these circumstances cannot be overridden by a general
public curiosity," id. at p. 866; and, although there is no
per se rule forbidding public disclosure of such informa-
tion, "the privacy interests of the individuals in question
. . . should yield only where exceptional interests militate
in favor of disclosure." {PFn. omitted). Id.
Consequently, we hold that the trial court should have
deleted from the files information identifying individuals
who were investigated but not charged with or prosecuted for
a crime, as well as information which would prove personally
embarrassing to individuals who were not the targets of the
investigation.
Therefore, the judgment is affirmed in part and reversed
in part, and the case is remanded to the trial court for
further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part. All the
Justices concur.
25
ENDNOTES:
i Although 22 "pattern" and "other" cases were cleared
and closed with the conviction of Wayne Williams for the
Cater and Payne murders, the appellee sought access to only
21 investigative files, because the file on one of the
missing and murdered children, Clifford Jones, had already
been produced in the case of Jersawitz v. Napper, Docket
#D-40014. In that case, which was litigated in the ‘Fulton
Superior Court, the appellees and Jack Jursawitz, a
free-lance journalist who is not a party in this case,
sought access to the investigative file concerning Jones.
After an in-camera review of the file, the superior court
ordered that it be made available for public inspection. No
appeal was taken from that order. The appellees state that
a review of that file disclosed that the case was classified
as "cleared" after Wayne Williams was named as the murderer,
but that his name had not been mentioned in the file until
the last page.
2
Specifically, the. trial court. ordered the files
concerning Michael McIntosh, Aaron Jackson, Jr., Aaron
Wyche, Eddie Duncan, Jr., and Timothy Hill, disclosed in
their entirety. The court ordered the Patrick Rogers file
disclosed in its entirety, and it was noted that medical and
dental records, as well as juvenile records, were among the
materials ordered disclosed. The court ruled that these
materials concerned the victim, Patrick Rogers, and the
court found that the privacy interests of the deceased are
outweighed by the interests of the public favoring
disclosure. The court ordered the Anthony B. Carter,
Christopher Richardson, Curtis Walker, and Yusef Bell files
disclosed with limited deletions. There is also a
disclosure order concerning the file on William Barrett.
However, his case was introduced in evidence at Williams'
trial as one of the "pattern" cases. See Williams v. State,
supra, 251 . Garrat p. 771, The court ordered this fille
disclosed in its entirety.
3
Exemption 7 provides, in full, that the disclosure
provisions of the FOIA do not apply to "investigatory
records compiled for law enforcement purposes, but only to
the extent that the production of such records would (A)
interfere with enforcement proceedings, (B) deprive a person
of a right to a fair trial or an impartial adjudication, ({C)
constitute an unwarranted invasion of personal privacy, (D)
disclose the identity of a confidential source and, in the
case of a record compiled by a law enforcement authority in
the course of a criminal: investigation, or by an agency
conducting a lawful national security intelligence
26
investigation, confidential information furnished only by
the confidential source, (E) disclose investigative
techniques and procedures, Or (F) endanger the life or
physical safety of law enforcement personnel . . . "
4 Under OCGA § 35-3-30 (4){A), “'"felriminal history
record information' means information collected by criminal
justice agencies on individuals consisting of identifiable
descriptions and notations of arrests, detentions,
indictments, accusations, information, or other formal
charges, and any disposition arising therefrom, sentencing,
correctional supervision, and release. The term does not
include identification information, such as fingerprint
records, to the extent that such information does not
indicate involvement of the individual in the criminal
justice system.”
5 FOIA Exemption 6 protects "personal and medical files
and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy." In
contrast, Exemption 7 (C) protects "[i]lnvestigatory records
compiled for law enforcement purposes, but only to :the
extent that the production of such records would . . .
constitute an unwarranted invasion of personal privacy."
"The difference in wording between the two exemptions was
advised and not accidental; its effect is to make Exemption
7 (C) a somewhat broader shield against disclosure than
Exemption 6 + + + The difference in breadth, In turn, is
attributable to the inherent distinctions between 1inves-
tigatory files and personnel, medical and similar files:
that an individual's name appears in files of the latter
kind, without more, will probably not engender comment and
speculation, while, as the Government argues here, an
individual whose name surfaces in connection with an
investigation may, without more, become the subject of rumor
and innuendo." Fund for Constitutional Government v. Natl.
Archives and Records Service, supra, 485 FSupp at p. 5,
citing Congressional News Syndicate v. United States Dept.
of Justice, 438 FSupp 538, 541 (D.D.C+ 1977).
6 Here, the trial court did delete such information from
the files.
27
In the Supreme Court of Georgia
APR 61987 Decided:
44381. NAPPER v. GEORGIA TELEVISION COMPANY,
d/b/a WSB-TV et al.
MARSHALL, Chief Justice.
This suit was instituted by the appellees-plaintiffs
against the appellant-defendant under the Open Records Act.
OCGA § 50-18-70 et_seq. The appellees in this case consist
of Georgia television Company, d/b/a WSB-TV; The Atlanta
Journal; The Atlanta Constitution; and ABC News, Inc. The
appellant is George Napper, in his official capacity as
Commissioner of Public Safety of the City of Atlanta. In
that capacity, he has custody of the investigatory case
files compiled by the Task Force formed to investigate what
has become known world-wide as "The Atlanta Child Murders.”
The appellant has refused the appellees' request that they
be given access to these files. As a result, the appellees
have filed ‘this suit in which they seek to enjoin the
appellant from refusing to make these files open to public
inspection. The trial judge conducted an in-camera
inspection of the files, and then issued orders compelling
the disclosure of some of the files in their entirety and
the disclosure of other files with limited deletions. The
orders were consolidated for appeal, and supersedeas was
granted by us pending an expedited appellate review.
Statement of Facts
The homicides constituting the Atlanta child murders
took place between July of 1979 and May of 1981. During
this time period, a series of 30 murders of black youths
occurred in metropolitan Atlanta. Bocaude of the ex-
traordinary public concern and fear resulting “from these
murders, the Atlanta Metropolitan Task Force on Missing and
Murdered Children (referred to hereinafter as the Task
Force) was formed to investigate these murders.
In May of 1981, Wayne Williams was arrested and indicted
for the murders of two of the missing and murdered children,
Nathaniel Cater and Jimmy Ray Payne. During the Williams
trial, the prosecution introduced evidence from ten
additional cases of other missing and murdered children in
an attempt to demonstrate a "pattern" among these ten
murders and the Cater and Payne murders. (These ten
additional cases will be referred to hereinafter as the
"pattern" cases.) Evidence from the investigative files of
the remaining murders played no role in the Williams trial.
(The remaining cases will be referred to hereinafter as the
"other" cases.) After a nine-week trial, which was
concluded on February 27, 1982, Williams was convicted of
the Cater and Payne murders. (The Cater and Payne cases
will be referred to hereinafter as the "conviction" cases.)
Wayne Williams' conviction was affirmed by. this court on
direct appeal in Williams v. State, 251 Ga. 749 (312 SE24
40) (1983).
Shortly after the conviction of Wayne Williams for the
Cater and Payne murders, the Commissioner of Public Safety
of the City of Atlanta, who at the time was Mr. Lee Brown,
announced at a press conference that 22 "pattern" and
"other" cases had been "cleared" as a result of Wayne
Williams' conviction for the Cater and Payne murders. Use
of the term "cleared" in this context means that the inves-
tigations were concluded and that no further investigations
would be undertaken. The documents clearing these cases
indicate that the Task Force had gathered sufficient
evidence to identify the murderer in each case as Wayne
Williams. Task Force Commander Willie J. Taylor testified
that these cases were "exceptionally cleared" under Task
Force regulations, because the District Attorney for Fulton
County decided not to prosecute Williams for these crimes in
light of his conviction of the Cater and Payne murders.
After the Task Force was disbanded, the investigative
files concerning the missing and murdered children were
transported to the Atlanta Bureau of Police Services, placed
in the appellant's custody, and sealed in a locked vault.
These closed investigative files have remained in the sealed
vault for the last five years.
On January 8, 1987, the appellees instituted this suit
in the Fulton Superior Court. In this suit, the appellees
seek access to the investigative files concerning the two
"conviction" cases and 211 "pattern™ and "other" cases. "The
appellant voluntarily produced to the appellees the investi-
gative file in one of the "pattern" cases, that of Charles
Stephens. The appellant refused to produce the remainder of
the investigative files from the "conviction" and "pattern"
cases, on the ground that these files were related to open
investigations during the pendency of a habeas-corpus
petition filed by Wayne Williams in the Butts Superior
Court. The appellant refused to produce the files in the
"other" cases until the trial court conducted an in-camera
inspection of these files for the purpose of deleting
information, the public disclosure of which would constitute
an invasion of privacy.
Mr. Joseph Drolet, of the Fulton County District
Attorney's Office, gave deposition testimony in this case
that "[t]here exists at this point ‘an open prosecution file
in regard to the prosecution of Wayne Williams, a file which
has remained open since the prosecution began and which
contains all pertinent material, including pattern cases and
potential pattern cases and the cases, - of course, of Mr.
Payne and Mr. Cater, and that is still maintained as an open
prosecution file. at this time." Mr. Drolet further
testified that if a retrial is ordered in Wayne Williams"
habeas-corpus proceedings, it would be necessary to review
the evidence in the "conviction" cases, "pattern" cases, and
"other" cases. In addition, he testified that he would
attempt to update and continue in the investigation and
supplement any investigation.
The superior court directed the appellant co submit the
investigative files ‘in 11 of the "other" cases for an
in-camera inspection by the court. ? Prior to submitting the
files to the trial court for an in-camera inspection, the
appellant reviewed the files and identified those portions
of the files which in the appellant's view should not be
disclosed by marking the page with numbered tabs and
highlighting the information. In addition, a summary of
proposed deletions is included in the files.
After a hearing, the . superior court: ordered the
appellant to submit the files in the "conviction" and
"pattern" cases to the court for an in-camera inspection, on
grounds that "the pendency of Wayne Williams' habeas corpus
petition does not justify a blanket nondisclosure of these
files [and] . . . [elven if these cases could be viewed as
pending +. «+ + the public ‘interest in: favor of disclosure
outweighs the public interest in justifying a blanket
nondisclosure." As to the files in the "other" cases, the
superior court -- after conducting a page-by-page in-camera
inspection, and after "balancing the interests involved and
considering all matters required by Harris v. Cox, 256 Ga.
299 (1986)," -- ordered the appellant to disclose eight of
these files in their entirety and four of these files with
limited deletions.
In this appeal, the appellant has filed three enumer-
ations of error, to wit: (1) The superior court erred in
concluding that the pendency of Wayne Williams' state
habeas-corpus petition does not warrant exemption of files
related to the two cases on which Williams was convicted and
the ten cases used during his trial to establish a pattern.
(2) The superior court erred in ordering disclosure of
certain categories of information which are exempt from
disclosure under Georgia statutes. (3) The superior court
erred in ordering disclosure of information which infringes
upon the privacy rights of individuals whose names,
addresses, and other personal information appear in the
files requested by the appellees.
The Act
(a) ‘Where there is a request: for ‘disclosure of
documents under the Public Records Act, the first inquiry is
whether the records are "public records." "[D]ocuments,
papers, and records prepared and maintained in the course of
the operation of a public office are 'public records' within
the meaning of this statute." . ." " Houston v. Rutledge, 237
Ga. 764, 765 (229 SE2d 624) (1976).
(b) If the documents are found to be "public records,"
the second inquiry is: (A) whether they are within the
exceptions to disclosure set forth in OCGA §: 50-18-72 (a)
(i.e., whether they are specifically required by the federal
government to be kept confidential or whether they are
medical or veterinary records or similar files, the
disclosure of which would be an invasion of privacy); or (B)
whether under OCGA § 50-18-70 (a) they are otherwise
protected from disclosure by court order or by statute.
{cy In Doe v, Sears, 245 Ca. 83 (263 SE24 119) (1980),
‘we were called upon to determine the meaning of § 50-18-72
(a)'s exemption with respect to "medical or veterinary
records or similar files, the disclosure of which would be
an invasion of privacy." There, we held, "Whatever may be
the outside Timits of the rights of personal privacy to
which that section refers, this court cannot accept [the]
contention that 'similar files' must relate in some respect
to the history, diagnosis, treatment, prognosis or result of
disease or other medical condition. Properly construed, the
section forbids disclosure to the general public from
[public] records or files of any information which would
invade the constitutional, statutory or common-law rights of
«+» + privacy. See Brown Vv. Minter, 243 Ga. 397 1254 SE24
326 (1979)... 245 Ga. at p.. 86.
"The right of privacy, protectable in tort, however,
extends only to unnecessary public scrutiny. Waters v.
Fleetwood, 212 Ga. 161 (91 SE2d 344) (1956); Pavesich v. New
England: Life Ins. Co., 122 Ga. :190.:(50 SE’ 68) (1904);
Cabaniss v. Hipsley, 114 Ga. App. 367 (151 8E2d 496)
{1966)." (fn. omitted). Athens Observer, Inc. v. Anderson,
245 Ga. 63, 65 (263 SE24 128) (1980). The tort of invasion
of privacy protects "'"(t)he right of a person . . «. to be
free from unwarranted publicity, . . . or the unwarranted
appropriation or exploitation of one's personality, the
publicizing of one's private affairs with which the public
has no legitimate concern." Gouldman-Taber Pontiac, Inc.
v, .Zerbst, 213 Ga. 682, : 683*:-1100 Sr24 881) (19537),
(Emphasis supplied.)" Athens Observer v. Anderson, supra,
245 Ga. at p. 65, n. 3. - "There are aL least three necessary
elements for recovery under this theory: (a) the 4is-
closure of private facts must be a public disclosure; (b)
the facts disdlosed to the public must be private, secluded
or secret facts and not public ones; {c) the matter made
public must be offensive and objectionable to a reasonable
man of ordinary sensibilities under the circumstances."
Cabaniss v. Hipsley, supra, 114 Ga. App. at p. 372. This
tort also encompasses publicity which places the plaintiff
in a false light in the ‘public's eye. id. at p. 370.
However, M'(w)here an incident is a matter of public
interest, or the subject matter of a public investigation, a
publication in connection therewith can be a violation of no
one's legal right of privacy.' Waters v. Fleetwood, supra,
Pp. 167." Athens Observer v. Anderson, supra, 245 Ga. at p.
66, n. 4.
"Various factors weigh on the question of whether
personal privacy protects information from disclosure.
Among other things, the court should consider whether the
information is unsubstantiated and based on hearsay, whether
it does not relate or relates only incidentally to the
subject matter of the public record and the remoteness in
time of the events referred to.
"While. this state . has a+ strong ‘policy of open
government, there is a corresponding policy for protecting
the right of the individual to personal privacy. References
to matters about which the public has, in fact and in law,
no legitimate concern, though found in a public document are
not subject to disclosure under the Public Records Act
because they are not the subject of 'legitimate public
r——
inquiry.'” Harris vv. Cox Enterprises, Inc.,-256 Ga. 299,
302 (348 SE2d 448) (1986).
(d) If the records are public records and do not fall
within any of the exemptions set out in the Public Records
Act, the question is whether the records should be protected
from disclosure by court order under § 50-18-70 (a).
In regard to whether public records should be protected
by court order, we have held, "When a controversy of this
nature arises between a citizen and a public official, the
judiciary has the rather important duty of determining
whether inspection or non-inspection of the public records
is ‘in the public interest. In short, the judiciary must
balance the interest of the public in favor of inspection
against the interest of the public in favor of
non-inspection' in deciding: this issue." Houston wv.
Rutledge, supra, 237 Ga.:at p. 765.
(e) If there has been a request for identifiable public
; records within the possession of the custodian thereof, the
‘burden is cast on that party to explain why the records
- should not be furnished. Northside Realty Assoc. Inc. v.
Community Relations Comm. of the City of Atlanta, 240 Ga.
3
432 {241 SE2d 189) (1978).
]
Appeal
: Does pendency of Wayne Williams' petition for writ
Of habeas corpus warrant exemption of the files in the
"conviction" cases and in the "pattern" cases?
(a) In Houston v. Rutledge, supra, this court held that
files maintained by a sheriff, as a matter of administrative
discretion and relating to the deaths of inmates in jail,
were "public records." There, the court stated:
"Statements, memoranda, narrative reports, etc. made and
maintained in the course of a pending investigation should
not in most instances, in the public interest, be available
for inspection by the public. However, once an investi-
gation is woncluded and the file closed, either with .or
without prosecution by the state, such public records in
most instances should be available for public inspection.
When a controversy of this nature arises between a citizen
and a public official, the judiciary has the rather impor-
tant duty of determining whether inspection or non-inspec-
tion of the public records is in the public interest. In
10
short, the judiciary must balance the interest of the public
in favor of inspection against the interest of the public in
-°
- favor of non-inspection in deciding this issue.
| "Generally, the public records that are prepared and
maintained in a current and continuing investigation of
possible criminal activity should not be open for public
inspection. On the other hand, and again generally, public
a I prepared and maintained in a concluded investigation
of alleged or actual criminal activity should be available
for public inspection." .237:Ga. at pp.: 765, 766.
In Harris v. Cox, supra, we held that a Georgia Bureau
BY
of Investigation yavort on its investigation of the Georgia
State Patrol should be disclosed under the Public Records
Act, since the investigation had been completed. We held
that the report should be made available for : public
inspection notwithstanding the argument that a criminal
matter was pending in that the report had been delivered to
federal authorities for consideration. Barris v. Cox,
supra, 256 Ga. at: pD-. 300, n. 1. However, as previously
stated, we also recognized that portions of the report,
which would violate an individual's right to privacy or
which are required by the federal government to be kept
confidential, should not be made public.
In addition to cases decided under the Public Records
Act, the appellant also cites Cannington v. State, 154 Ga.
App. 557 (269 SE2d 62) (1980), and National Labor Relations
Board iv. Robbins Tire '& Rubber Co., 437 U. S. .214 (98 SC
11
2311, 57 LE2d 159) (1978).
In Cannington,
the Court of Appeals held that the state
‘may retain items used as evidence in a criminal trial for a
reasonable
length of time following
the trial. In that
case the plaintiff
had filed a motion for the return of
property which had been seized bY the state for use as
evidence during his criminal trial. The trial court denied
re marion: and on appeal the Court of Appeals affirmed,
holding, "ltems having evidentiary
value may be retained by
the state for«a reasonable
length of time following
the
trial. We note various avenues of appeal used by criminal
a
defendants
following
conviction
, j.e. state and federal
habeas COIrpusy extraordinar
y motions for new trial, etc.”
154 Ga. App- at pps 357-558.
In the Robbins case: supra: the Supreme Court was called
upon to interpret
the meaning of Exemption
7 AA) of the
Freedom of Information
Act (FOIA).
xls 8. Cp § 552
(b) (7) (A).
As originally
enacted in 1966, Exemption 7. (A) permitted
non-disclos
ure of wjpvestigat
ory files compiled for law
enforcement
purposes except to the extent available
DY law
to a private party." "in originally
enacting Exemption
EY
congress
recognized
that law enforcement
agencies
had
legitimate
needs to keep certain records confidential
. lest
the agencies be hindered in their investigatio
ns or placed
at a disadvantage
when it came time tO present their cases:
Foremost among the purposes of this Exemption was to prevent
C
L
—
—
—
—
—
—
—
—
'harm (to) the Government's case in court,' . . . by not
allowing litigants ‘earlier or greater access' to agency
investigatory files than they would otherwise have . . . "
A437 U.S. at p« 224.
However, the Court of Appeals for the District of
Columbia Circuit rendered a series of decisions holding that
investigatory files compiled for law enforcement purposes
were entirely exempt from disclosure even after the
termination of the investigation and enforcement
proceedings. See Center For National Policy Review On Race
and Urban Issues v. Weinberger, 502 F2d 370 (DCCA 1974).
I
As a result, Exemption 7 was amended in 1974 to provide
that the withholding of investigatory records would be based
upon one or more of six specified types of harm enumerated
in parts (A) through (E) of Exemption 7,3 As amended,
Exemption "7 (A) permits non-disclosure of "investigatory
records compiled for law enforcement purposes, but only to
the extent that the production of such records would
interfere with enforcement proceedings." This amendment was
intended to do two things. "First, by substituting the word
'records' for 'files,' it would make clear that courts had
to consider the nature of the particular document as to
which exemption was claimed, in “order to . avoid the
possibility of impermissible ‘'commingling' by an agency's
placing in an investigatory file material that did not
legitimately have to be kept confidential . . . Second, it
would explicitly enumerate the purposes and objectives of
13
the Exemption, and thus require reviewing courts to 'loo(k)
; to the reasons' for allowing withholding of investigatory
Pived before making ‘their decisions . . . " 437 U. S. ‘at
"Pp 229,5230. "Thus, where an agency fails to 'demon-
stra (e) that the . . . "documents (sought) relate to any
ongoing investigation or . . . would jeopardize any future
law ;enforcement proceedings,' Exemption 7 (A) would not
provide protection to the agency's decision." Id. at Dp.
235,
After reviewing the history of Exemption 7 (A), the
Court in Robbins held that under this Exemption the National
Labor Relations Board is not required to disclose, prior to
its hearing on an unfair labor practice complaint, state-
ments of witnesses whom the Board intends to call as
witnesses; that pre-hearing disclosure of witnesses
statements necessarily "would interfere" in the statutory
sense with the Board's "enforcement proceedings," and,
therefore, the Board is not required to make an individ-
ualized showing of harm in a particular case. However, such
"generic determinations of likely interference,” 437 U. 8S.
at p. 236, were limited to "an imminent adjudicatory pro-
ceeding" which is "necessarily of a finite duration." 14d.
atapes 229, n.. 10. See Powell, -J., concurring in» part and
dissenting in part.
(b) The appellant argues that this case presents an
exception to the rule that generally closed investigatory
files should be disclosed. The appellant bases this
14
argument
on the pendency
of Wayne williams’
habeas—COTr
PUS
4petitdion
and the "real possibili
ty’ of the need for .@
‘veryisl.
The appellant
contends.
»In the event that
williams
succeeds
on his habeas petition.
particula
rly if
thers is 4 jetermina
tion that some evidence
VES improperly
admitted
at his trial. preparati
on for a retrial of williams
will] involve
reassessm
ent of evidence.
including
evidence
contained
in the investiga
tory files, but not used at trial.
Disclosure
of the investiga
tory files would compromise
these
efforts.
clearly:
therefore,
the public
interest
in
non-discl
osure outweighs
any purported
public interest
in
ei”
-
disclosure
."
Before
the trial court,
the appellant
argued
that
opening
the case files tO public inspection
would compromise
the state's
Case in the event Of 2a retrial;
because
of the
effects
of pretrial
publicity:
pecause€
of allegation
s as to
other suspects:
and pecause
williams
would De given
informat
ion that he is not entitled
to under Brady Ve
Maryland.
The appellees
argue that if closed investiga
tory files
in criminal
cases are held not vo ‘be open to public
inspection
pecause
of the possibilit
y of post-convi
ction
relief,
the public Records
Act in this area of criminal
ipvestigat
ions will PbPe completely
oviscerated
:. The
appellees
also argue that the public
has @a very strond
interest
in the disclosur
e of files on cases which were not
prosecute
d and "(tlhis public concern
has been evidenced
by
the continued interest in the questions left unanswered by
the closing of the Task Force investigations five years ago.
Were the investigations conducted properly? why did the
investigations of so many murders result in the prosecution
of only one suspect? What evidence supports the Task
Force's conclusions that .Wayne Williams committed all of the
‘cleared' murders? .” The answers to these questions lie, if
anywhere, in these closed investigative files."
{c) In our opinion, the trial court did not err in
ruling that the pendency of Wayne Williams' habeas-corpus
petition does not justify a blanket non-disclosure of the
files in the Toutternt and "conviction" cases. The evidence
certainly authorized the trial court in finding that the
investigations in those cases have concluded. We cannot
agree that the public interest in favor of disclosure is
outweighed by the public interest in favor of non-disclosure
based upon the possibility that a retrial might be ordered
in post-conviction proceedings. Such proceedings are of an
indeterminate duration, and to hold that the pendency of
these proceedings requires a blanket non-disclosure of the
investigatory case files would, as argued by the appellees,
eviscerate the Public Records Act in this area. We hold
that once the trial has been held, the conviction affirmed
on direct appeal, and any petition or petitions for
certiorari denied (including to the Supreme Court of the
United States), the investigatory file in the case should be
made available for public inspection. If there are any
16
specific items in the file which are exempt from the
disclosure provisions of the Act, or which in the public
interest should not be disclosed, the burden is on the party
opposing disclosure to make this showing. This burden has
not been met here.
2. Did the trial court erroneously order the disclosure
of information which is exempt from disclosure by various
statutes?
(a) First, the appellant argues that the trial court
erroneously ordered the disclosure of motor-vehicle-
registration information contained in several of the files.
Subsection (a) of § 10 of the "Motor Vehicle Certificate
of Title Act! (OCGA: 'S 40-3-24. (d4Y)) provides that motor
vehicle records which the State Revenue Commissioner is
required to maintain are "[e]lxempt from the provisions of
any law of this state requiring that such records be opened
for public inspection; provided, however, that the records
of any particular motor vehicle may be available for
inspection by [among others] the following: (1) Any law
enforcement officer . . i."
It appears that during the investigation of "The Atlanta
Child Murders," law-enforcement Officers utilized OCGA §
40-3-24 (4) (1) to inspect motor-vehicle records of various
automobiles, and some of this information was incorporated
into various of the case files.
We hold that although these records are not open for
public inspection under the Public Records Act, this does
17
not preclude public disclosure where a law-enforcement
officer who has inspected the records incorporates
information therefrom into an investigatory case file.
(b) The appellant argues that various of the files
contain information regarding allegations of child abuse,
molestation, Or neglect, and. that such records. are
confidential pursuant to OCGA § 49-5-40.
OCGA § 49-5-40 provides, "Each and every record
concerning reports of child abuse and neglect which is in
the custody of the [Department of Human Resources] or other
state or local agency is declared to be confidential, and
access thereto it orofibited except as provided in Code
Section 49-5-41." However, under OCGA § 49-5-41 (a) (2),
where a court considers it necessary for the resolution of
an issue before it, the court may order the disclosure of
the information. Ray v. Dept. of Human Resources, 155 Ga.
App. 81 (1) (270. SE2d4 303) (1980).
(C) The appellant argues that some of the requested
documents contain information gained through wiretaps, and
that OCGA § 16-11-64 (b) (8) prohibits the public disclosure
of such information.
OCGA § 16-11-64 (b) (8) provides that "[alny publication
of the information or evidence obtained under a warrant
[authorizing the use of a device for the interception of
wire or oral transmissions, i.e., a wiretap] other than that
necessary and essential to the preparation of and actual
prosecution for the crime specified in the warrant shall be
18
an unlawful invasion of privacy under this part and shall
cause such evidence and information to be inadmissible in
any criminal prosecution."
We, therefore, agree with the appellant that the trial
court should have deleted from the subject documents,
information obtained under a warrant authorizing a wiretap.
(4d) The appellant argues that most of the case files
include the criminal histories of various individuals, i.e.,
the names and addresses of persons who have been arrested on
prior occasions, information regarding the offenses
involved, the disposition of the «cases, and in some
instances pHAtograchs of the arrestees. The appellant
contends that under the statutory provisions under which the
Georgia Crime Information Center (GCIC) was established,
OCGA § 35-3-30 et seq., this information is not subject to
public disclosure.
OCGA § 35-3-30 (4) (A) defines "criminal ‘history record
information." OCGA § 35-3-34 (a) (1) authorizes the GCIC
to make records of adjudications of guilt available to
private persons and businesses under certain circumstances.
OCGA § 35-3-33 (10) authorizes the GCIC to make available,
upon request, to all local and ‘state criminal justice
agencies, all federal criminal justice agencies, and
criminal justice agencies in other states any information in
the files of the center which will aid these agencies in the
performance of their official duties. OCGA § 35-3-37 (a)
provides, "Nothing in this article shall be construed so as
19
“.
~
to authorize any person, agency, corporation, or other legal
entity to invade the privacy of any citizen as defined by
the General Assembly or the courts other than to the extent
provided in this article."
We hold that where "criminal history record information"
has been incorporated by a law-enforcement agency into an
investigatory case file, it should be open for public
inspection unless its disclosure would constitute an
invasion of privacy. As a general matter, such information
is part of the subject matter of public investigations, and,
therefore, the disclosure thereof cannot be said to result
in unwarranted publicity or to constitute an invasion of
privacy. Athens Observer, Inc. v. Anderson, supra.
(e) Medical records are exempt from the provisions of
the Open Records Act only to the extent that disclosure
would be an invasion of personal privacy. OCGA § 50-18-72
{a).
In the files concerning several of the victims, the
court, in refusing to delete the medical records, concluded
that "the privacy interests of the deceased are outweighed
by the interests of the public favoring disclosure.” The
appellant argues that the trial court committed error here,
in that the balancing-of-interests test is utilized only
where the subject information is not otherwise exempt from
disclosure. We disagree. In determining whether the
invasion of privacy is warranted or unwarranted, the
question can be stated in terms of whether the privacy
20
interests of the deceased are outweighed by the interests of
the public favoring disclosure.
We cannot say that the trial court abused its discretion
in refusing to order the deletion of the medical records of
the victim, or other medical and mental-health information.
(Cf) The appellant argues that the information in some
of the files was obtained through hypnosis of witnesses and
is, therefore, privileged under OCGA § 43-39-16.
However, the privilege established by OCGA § 43-39-16
pertains only to "confidential relations and communications
between a licensed applied psychologist and client." And, §
43-39-16 SOE nO. enempt communications made by a witness
for the prosecution during hypnosis conducted for
prosecution purposes. Emmett v. Ricketts, 397 FSupp. 1025
(N.D.Ga 1975).
(g) The appellant argues that some of the files contain
information compiled by the Federal Bureau of Investigation
in the course of its investigation of "The Atlanta Child
Murders," and that this information is exempt from
disclosure under Exemption 7 (C) of the FOIA. 5. 0.8.C..§
552 (bY (7) {(C).
Exemption 7 (C) protects "[ilnvestigatory records
compiled for law enforcement purposes, but only to the
extent that the production of such records would . . -.
constitute an unwarranted invasion of personal privacy."
The appellant has made no showing that there is infor-
mation in the FBI files which the trial court refused to
21
delete, and the public disclosure of which would constitute
an invasion of privacy.
(h) The appellant argues that records related to
arrests and criminal histories of juveniles are not subject
to the Open Records Act, in that under oCGA $§ 15-11-59. (bh),
these records are not open for public inspection unless "a
charge of delinquency is transferred for criminal prosecu-
tion under Code Section 15-11-39, “or the interest of
national security requires, or the court otherwise orders in
the interest of the child . . .
However, as argued by the appellees, all references to
juvenile records Tors deleted.
{1) The appellant argues that one file, that of
Christopher Richardson, contains public-school attendance
records, which under ocCGA $§ 20-2697 "shall be open to
inspection by ithe visiting teacher, attendance Officer, or
duly authorized representative" and "shall not be used for
any purpose except providing necessary attendance infor-
mation required by the State Board of Education, except with
the permission of the parent or guardian of a child or
pursuant to the subpoena of a court of competent juris-
dictione"
In "addition, a written summary of a public-school
disciplinary proceeding, which includes a description of the
incident and the disposition thereof but not the names of
any party to the incident, is a public record under OCGA §
20~2~757" {c).
After reviewing the file concerning Christopher
Richardson, we find no public-school attendance records or
records of public-school disciplinary proceedings.
(j) The appellant argues that under OCGA § 43-36-15 (a)
(3) (D), "A polygraph examiner shall not release the results
of a subject's examination unless the examiner has obtained
the prior written permission of the subject." However, the
appellees point out that a polygraph examiner may disclose
information acquired from a polygraph examination to any
person pursuant to and directed by court order. OCGA §
43-36-15 (a) (4) (C).
3. Did the tvial court err in ordering disclosure of
information which infringes upon the privacy rights of
various individuals?
In this regard, the appellant argues that there are
certain specific items, which have been opened to public
inspection under the trial court's disclosure orders, which
invade the privacy of the individuals mentioned therein.
After reviewing these items, and after canvassing the files,
we find no abuse of discretion on the part of the trial
court in ordering disclosure of the files with the speci-
fied, limited deletions.
Judgment affirmed in part and reversed in part. All the
Justices concur.
23
ENDNOTES :
L Although 22 "pattern" and "other" cases were cleared
and closed with the conviction of Wayne Williams for the
Cater and Payne murders, the appellee sought access to only
21 investigative files, because the file on one of the
missing and murdered children, Clifford Jones, had already
been produced in the case of Jersawitz v. Napper, Docket
#D-40014. In that case, which was litigated in the Fulton
Superior Court, the appellees and Jack Jersawitz, a
free-lance journalist who is not a party in this case,
sought access to the investigative file concerning Jones.
After an in-camera review of the file, the superior court
ordered that it be made available for public inspection. No
appeal was taken from that order. The appellees state that
a review of that file disclosed that the case was classified
as "cleared" after Wayne Williams was named as the murderer,
but that his name had not been mentioned in the file until
the last page.
2 Specifically, the trial court ordered the files
concerning Michael McIntosh, Aaron Jackson, Jr., Aaron
Wyche, Eddie Duncan, Jr., and Timothy Hill, disclosed in
their entirety. The court ordered the Patrick Rogers file
disclosed in its entirety, and it was noted that medical and
dental records, as well as juvenile records, were among the
materials ordered disclosed. The court ruled that these
materials concerned the victim, Patrick Rogers, and the
court found that the privacy interests of the deceased are
outweighed by the interests of the public favoring
disclosure. The court ordered the Anthony B. Carter,
Christopher Richardson, Curtis Walker, and Yusef Bell files
disclosed with limited deletions. There is also a
disclosure order concerning the file on William Barrett.
However, his case was introduced in evidence at Williams’
trial as one of the "pattern" cases. See Williams v. State,
supra, 25) .Ga. "at "p. 771. The: court ordered this file
disclosed in its entirety.
Exemption 7 provides, in full, that the disclosure
provisions of the FOIA do not apply to "investigatory
records compiled for law enforcement purposes, but only to
the extent that the production of such records would (A)
interfere with enforcement proceedings, (B) deprive a person
of a right to a fair trial or an impartial adjudication, (C)
constitute an unwarranted invasion of personal privacy, (D)
disclose the identity of a confidential source and, in the
case of a record compiled by a law enforcement authority in
the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence
24
~~
<
investigation, confidential information furnished only by
the confidential source, (E) disclose investigative
techniques and procedures, or (F) endanger the life or
physical safety of law enforcement personnel . . . "
4 Under OCGA § 35-3-30 (4)(A), "'l[clriminal history
record information' means information collected by criminal
justice agencies on individuals consisting of identifiable
descriptions and notations of arrests, detentions,
indictments, accusations, information, or other formal
charges, and any disposition arising therefrom, sentencing,
correctional supervision, and release. The term does not
include identification information, such as fingerprint
records, to the extent that such information does not
indicate involvement of the individual in the criminal
justice system."
25
526 OCTOBER TERM, 1985
BRENNAN, J., dissenting 477 1. 8.
review —where the consequence to the defendant is death.
With the understanding that “execution is the most irremedi-
able and unfathomable of penalties; that death is different,”
Ford v. Wainwright, ante, at 411; see also Woodson v. North
Carolina, 428 U. S. 280, 305 (1976) (opinion of Stewart, POW-
ELL, and STEVENS, JJ.), this Court has been particularly
scrupulous in demanding that the proceedings which con-
demn an individual to death not be marred by constitutional
error. Against this background of special concern, “comity”
and “federalism” concerns simply do not require such an ex-
ercise of this Court’s discretion in capital cases.
SMITH v. MURRAY 527
Syllabus
SMITH v. MURRAY, DIRECTOR, VIRGINIA
DEPARTMENT OF CORRECTIONS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 85-5487. Argued March 4, 1986 — Decided June 26, 1986
Prior to petitioner’s trial in a Virginia state court for murder of a woman,
he was examined by a psychiatrist appointed by the court at the request
of his counsel. During the examination, the psychiatrist asked peti- tioner both about the murder and prior incidents of deviant sexual con-
duct, and petitioner stated that he once tore the clothes off a girl on a school bus before deciding not to rape her. Following a jury trial, peti- tioner was convicted, At the sentencing phase, the prosecution called
the psychiatrist to the stand, and, over the defense’s objection, he described the incident on the school bus. After further evidence was presented both for the prosecution and petitioner, the jury recom- mended the death sentence. On appeal to the Supreme Court of Vir- ginia, petitioner raised a number of claims but did not assign any error concerning the admission of the psychiatrist's testimony, his counsel later explaining at a postconviction hearing that he had decided not to pursue that claim after determining that Virginia case law would not support his position at the time. The Supreme Court affirmed the
conviction and sentence, not addressing any issues concerning the pros-
ecution’s use of the psychiatric testimony because under a rule of the court only errors assigned by the appellant would be considered. After exhausting state remedies, petitioner sought a writ of habeas corpus in Federal District Court, which denied the petition. The Court of
Appeals affirmed.
Held: Petitioner defaulted his underlying constitutional claim as to the admission of the psychiatrist’s testimony by failing to press it before the Supreme Court of Virginia on direct appeal. Murray v. Carrier, ante,
p. 478. Pp. 533-539.
(a) Petitioner has not carried his burden of showing cause for his non-
compliance with Virginia's rules of procedure. A deliberate, tactical decisicn not to pursue a particular claim is the very antithesis of the kind
of circumstance that would warrant excusing a defendant's failure to ad-
here to a State's rules for the fair and orderly disposition of its criminal
cases. Here, counsel's decision not to press the claim in question was
not an error of such magnitude that it rendered his performance con-
stitutionally deficient under the test of Strickland v. Washington, 466
. OCTOBER TERM, 1985
Opinion of the Court 477 U. S.
U. S. 668. Nor can petitioner rely on the novelty of the claim as
“cause” for noncompliance with Virginia's rules, where it appears that
various forms of such a claim had been percolating in the lower courts for
years at the time of petitioner’s original appeal. Pp. 533-5317.
(b) It is clear on the record that application of the cause and prejudice
test will not result in a “fundamental miscarriage of justice,” where the
alleged constitutional error neither precluded the development of true
facts nor resulted in the admission of false ones. Thus, even assuming
that, as a legal matter, the psychiatrist’s testimony should not have been
presented to the jury, its admission did not pervert the jury’s delibera-
tions concerning the ultimate question of whether in fact petitioner con-
stituted a continuing threat to society. Pp. 537-539.
769 F. 2d 170, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which BURGER,
C. J., and WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J.,
filed a dissenting opinion, in which MARSHALL, J., joined, ante, p. 516.
STEVENS, J., filed a dissenting opinion, in which MARSHALL and BLACK-
MUN, JJ., joined, and in Parts II and III of which BRENNAN, J., joined,
post, p. 539.
J. Lloyd Snook 111, by appointment of the Court, 474 U. S.
993, argued the cause for petitioner. With him on the briefs
was Richard J. Bonnie.
James E. Kulp, Senior Assistant Attorney General of Vir-
ginia, argued the cause for respondent. With him on the
brief were William G. Broaddus, Attorney General, and
Frank S. Ferguson, Assistant Attorney General. *
JUSTICE O'CONNOR delivered the opinion of the Court.
We granted certiorari to decide whether and, if so, under
what circumstances, a prosecutor may elicit testimony from a
mental health professional concerning the content of an inter-
view conducted to explore the possibility of presenting psy-
chiatric defenses at trial. We also agreed to review the
*Briefs of amici curiae urging reversal were filed for the American
Psychiatric Association et al. by Joel I. Klein, Joseph N. Onek, and Peter
E. Scheer; for the American Psychological Association by Bruce J. Ennis,
Jr.. and Donald N. Bersoff; and for the New Jersey Department of the
Public Advocate by Linda G. Rosenzweig.
SMITH ». MURRAY 529
527 Opinion of the Court
Court of Appeals’ determination that any error in the admis-
sion of the psychiatrist's evidence in this case was irrelevant
under the holding of Zant v. Stephens, 462 U. S. 862 (1983).
On examination, however, we conclude that petitioner de-
faulted his underlying constitutional claim by failing to press
it before the Supreme Court of Virginia on direct appeal.
Accordingly, we decline to address the merits of petitioner’s
claims and affirm the judgment dismissing the petition for a
writ of habeas corpus.
I
Following a jury trial, petitioner was convicted of the May
1977 murder of Audrey Weiler. According to his confession,
petitioner encountered Ms. Weiler in a secluded area near his
home and raped her at knifepoint. Fearing that her testi-
mony could send him back to prison, he then grabbed her by
the neck and choked her until she fell unconscious. When he
realized that she was still alive, he dragged her into a nearby
river, submerged her head, and repeatedly stabbed her with
his knife. A subsequent medical examination indicated that
the death was attributable to three clusters of lethal injuries:
asphyxia from strangulation, drowning, and multiple stab
wounds.
Prior to the trial, petitioner’s appointed counsel, David
Pugh, had explored the possibility of presenting a number of
psychiatric defenses. Towards that end, Mr. Pugh re-
quested that the trial court appoint a private psychiatrist,
Dr. Wendell Pile, to conduct an examination of petitioner.
Aware that psychiatric reports were routinely forwarded to
the court and that such reports were then admissible under
Virginia law, Mr. Pugh had advised petitioner not to discuss
any prior criminal episodes with anyone. App. 134. See
Gibson v. Commonwealth, 216 Va. 412, 219 S. E. 2d 845
(1975). Although that general advice was intended to apply
to the forthcoming psychiatric examination, Mr. Pugh later
testified that he “did not specifically tell [petitioner] not to
say anything to Doctor Pile about the offense or any of-
OCTOBER TERM, 1985
Opinion of the Court 477 U. S.
ducting a vigorous defense at both the guilt and sentencing
phases of the trial, counsel surveyed the extensive tran-
script, researched a number of claims, and decided that,
under the current state of the law, 13 were worth pursuing
on direct appeal. This process of “winnowing out weaker ar-
guments on appeal and focusing on” those more likely to pre-
vail, far from being evidence of incompetence, is the hallmark
of effective appellate advocacy. Jones v. Barnes, 463 U. S.
745, 751-752 (1983). It will often be the case that even the
most informed counsel will fail to anticipate a state appellate
court’s willingness to reconsider a prior holding or will under-
estimate the likelihood that a federal habeas court will re-
pudiate an established state rule. But, as Strickland v.
Washington made clear, “[a] fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the cir-
cumstances of counsel's challenged conduct, and to evaluate
the conduct from counsel's perspective at the time.” 466
U. S., at 689. Viewed in light of Virginia law at the time
Mr. Pugh submitted his opening brief to the Supreme Court
of Virginia, the decision not to pursue his objection to the
admission of Dr. Pile’s testimony fell well within the “wide
range of professionally competent assistance” required under
the Sixth Amendment to the Federal Constitution. Id., at
690.
Nor can petitioner rely on the novelty of his legal claim as
“cause” for noncompliance with Virginia's rules. See Reed
v. Ross, 468 U. S., at 18 (“Where a constitutional claim is
so novel that its legal basis is not reasonably available to
counsel, a defendant has cause for his failure to raise the
claim in accordance with applicable state procedures”). Pe-
titioner contends that this Court’s decisions in Estelle v.
Smith, 451 U. S. 454 (1981), and Ake v. Oklahoma, 470 U. S.
68 (1985), which were decided well after the affirmance of his
conviction and sentence on direct appeal, lend support to his
position that Dr. Pile’s testimony should have been excluded.
SMITH ». MURRAY 537
527 Opinion of the Court
But, as a comparison of Reed and Engle makes plain, the
question is not whether subsequent legal developments have
made counsel's task easier, but whether at the time of the de-
fault the claim was “available” at all. As petitioner has can-
didly conceded, various forms of the claim he now advances
had been percolating in the lower courts for years at the time
of his original appeal. Brief for Petitioner 20-21, n. 12;
Reply Brief for Petitioner 3. Moreover, in this very case, an
amicus before the Supreme Court of Virginia specifically ar-
gued that admission of Dr. Pile’s testimony violated petition-
er’s rights under the Fifth and Sixth Amendments. Brief
for Post-Conviction Assistance Project of the University
of Virginia Law School as Amicus Curiae in No. 780293,
pp. 53-62. Under these circumstances, it simply is not open
to argument that the legal basis of the claim petitioner now
presses on federal habeas was unavailable to counsel at the
time of the direct appeal.
We conclude, therefore, that petitioner has not carried his
burden of showing cause for noncompliance with Virginia's
rules of procedure. That determination, however, does not
end our inquiry. As we noted in Engle and reaffirmed in
Carrier, “‘[i]n appropriate cases’ the principles of comity and
finality that inform the concepts of cause and prejudice ‘must
yield to the imperative of correcting a fundamentally unjust
incarceration.” Murray v. Carrier, ante, at 495, quoting
Engle v. Isaac, supra, at 135. Accordingly, “where a con-
stitutional violation has probably resulted in the conviction
of one who is actually innocent, a federal habeas court may
grant the writ even in the absence of a showing of cause for
the procedural default.” Murray v. Carrier, ante, at 496.
We acknowledge that the concept of “actual,” as distinct
from “legal,” innocence does not translate easily into the con-
text of an alleged error at the sentencing phase of a trial on a
capital offense. Nonetheless, we think it clear on this record
that application of the cause and prejudice test will not result
538 OCTOBER TERM, 1985
Opinion of the Court 477 U. S.
in a “fundamental miscarriage of justice.” Engle, 456 U. S.,
at 135. There is no allegation that the testimony about the
school bus incident was false or in any way misleading. Nor
can it be argued that the prospect that Dr. Pile might later
testify against him had the effect of foreclosing meaningful
exploration of psychiatric defenses. While that concern is a
very real one in the abstract, here the record clearly shows
that Dr. Pile did ask petitioner to discuss the crime he stood
accused of committing as well as prior incidents of deviant
sexual conduct. Although initially reluctant to do so, ulti-
mately petitioner was forthcoming on both subjects. In
short, the alleged constitutional error neither precluded the
development of true facts nor resulted in the admission of
false ones. Thus, even assuming that, as a legal matter, Dr.
Pile’s testimony should not have been presented to the jury,
its admission did not serve to pervert the jury’s deliberations
concerning the ultimate question whether in fact petitioner
constituted a continuing threat to society. Under these cir-
cumstances, we do not believe that refusal to consider the
defaulted claim on federal habeas carries with it the risk of a
manifest miscarriage of justice.
Nor can we concur in JUSTICE STEVENS’ suggestion that
we displace established procedural default principles with an
amorphous “fundamental fairness” inquiry. Post, at 542-
543. Precisely which parts of the Constitution are “fun-
damental” and which are not is left for future elaboration.
But, for JUSTICE STEVENS, when a defendant in a capital
case raises a “substantial, colorable” constitutional claim, a
federal court should entertain it no matter how egregious the
violation of state procedural rules, and regardless of the fair-
ness of the opportunity to raise that claim in the course of his
trial and appeal. Post, at 546. We reject the suggestion
that the principles of Wainwright v. Sykes apply differently
depending on the nature of the penalty a State imposes for
the violation of its criminal laws. We similarly reject the
suggestion that there is anything “fundamentally unfair”
U
d
SMITH v». MURRAY 539
527 STEVENS, J., dissenting
about enforcing procedural default rules in cases devoid of
any substantial claim that the alleged error undermined the
accuracy of the guilt or sentencing determination. In view
of the profound societal costs that attend the exercise of ha-
beas jurisdiction, such exercise “carries a serious burden of
justification.” H. Friendly, Is Innocence Irrelevant? Collat-
eral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,
146 (1970); see also Engle v. Isaac, supra, at 126-129.
When the alleged error is unrelated to innocence, and when
the defendant was represented by competent counsel, had a
full and fair opportunity to press his claim in the state Sys-
tem, and yet failed to do so in violation of a legitimate rule of
procedure, that burden has not been carried.
Accordingly, we affirm the judgment of the Court of Ap-
peals upholding the dismissal of petitioner’s application for a
writ of habeas corpus.
Affirmed.
[For dissenting opinion of JUSTICE BRENNAN, see ante,
p. 516.]
JUSTICE STEVENS, with whom JUSTICE MARSHALL and
JUSTICE BLACKMUN join and with whom JUSTICE BRENNAN
joins as to Parts II and III, dissenting.
The record in this case unquestionably demonstrates that
petitioner’s constitutional claim is meritorious, and that there
is a significant risk that he will be put to death because his
constitutional rights were violated.
The Court does not take issue with this conclusion. It is
willing to assume that (1) petitioner’s Fifth Amendment right
against compelled self-incrimination was violated; (2) his
Eighth Amendment right to a fair, constitutionally sound
sentencing proceeding was violated by the introduction of the
evidence from that Fifth Amendment violation; and (3) those
constitutional violations made the difference between life and
death in the jury’s consideration of his fate. Although the
constitutional violations and issues were sufficiently serious
OCTOBER TERM, 1985
Syllabus 477 U. S.
MURRAY, DIRECTOR, VIRGINIA DEPARTMENT OF
CORRECTIONS v. CARRIER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 84-1554. Argued January 21, 1986 —Decided June 26, 1936
Respondent was convicted by a jury in a Virginia state court of rape
and abduction. The trial judge denied respondent’s counsels pretrial
motion to discover the victim's statements to police describing her assail-
ants, their vehicle, and the location of the alleged rape. Without con-
sulting respondent, counsel filed a petition for appeal that failed to
include any claim that the trial judge erred in not permitting counsel to
examine the victim's statements, notwithstanding a Virginia Supreme
Court Rule providing that only errors assigned in the petition for appeal
will be noticed and that no error not so assigned will be admitted as a
ground for reversal. The Virginia Supreme Court refused the appeal,
and this Court denied certiorari. Thereafter, respondent filed a pro se
state habeas corpus petition, claiming that he had been denied due proc-
ess of law by the prosecution’s withholding of the victim's statements.
The state court denied the petition on the ground that the claim was
barred because respondent failed to raise it on appeal, and the Virginia
Supreme Court denied certiorari. Respondent then filed a pro se ha-
beas petition in Federal District Court, which also held that the discov-
ery claim was barred by procedural default. On appeal, respondent dis-
avowed any claim of ineffective assistance of counsel, but asserted that
counsel had mistakenly omitted his discovery claim from the state peti-
tion for appeal and that this error was cause for his default. The Court
of Appeals reversed, holding that a federal habeas petitioner need only
satisfy the district court that the procedural default resulted from his at-
torney’s ignorance or inadvertence, rather than from a deliberate tactical
decision. Accordingly, the Court of Appeals remanded to the District
Court to resolve the question of respondent’s counsel's motivation for
failing to appeal the discovery claim.
Held: A federal habeas petitioner, such as respondent, cannot show cause
for a procedural default by establishing that competent defense counsel's
failure to raise a substantive claim of error was inadvertent rather than
deliberate. Pp. 485-497.
(a) The mere fact that counsel failed to recognize the factual or legal
basis for a claim, or failed to raise the claim despite recognizing it, does
not constitute cause for a procedural default. Engle v. Isaac, 456 U. S.
MURRAY v. CARRIER 479
478 Syllabus
107. The question of cause for a procedural default does not turn on
whether counsel erred or on the kind of error counsel may have made.
So long as a defendant is represented by counsel whose performance
is not constitutionally ineffective under the standard established in
Strickland v. Washington, 466 U. S. 668, there is no inequity in requir-
ing him to bear the risk of attorney error that results in a procedural
default. Instead, the existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel's efforts to comply with
the State’s procedural rule. While ineffective assistance of counsel con-
stitutes cause for a procedural default, the exhaustion doctrine generally
requires that an ineffective assistance claim be presented to the state
courts as an independent claim before it may be used to establish cause
for a procedural default in federal habeas proceedings. Pp. 485-490.
(b) There is no merit to respondent’s argument that even if counsel's
ignorance or inadvertence does not constitute cause for a procedural de-
fault at trial, it does constitute cause for a procedural default on appeal.
A State’s procedural rules serve vital purposes on appeal as well as at
trial and on state collateral attack, and the standard for cause should not
vary depending on the timing of a procedural default. The frustration of
the State's interests that occurs when an appellate procedural rule is
broken is not significantly diminished when counsel's breach results from
ignorance or inadvertence rather than from a deliberate decision, tactical
or not, to abstain from raising the claim. Failure to raise a claim on ap-
peal reduces the finality of appellate proceedings, deprives the appellate
court of an opportunity to review trial error, and undercuts the State’s
ability to enforce its procedural rules. As with procedural defaults at
trial, these costs are imposed on the State regardless of the kind of attor-
ney error that led to the procedural default. Whatever may be the case
where counsel has failed to take an appeal at all, counsel's failure to raise
a particular claim on appeal is to be scrutinized under the cause and
prejudice standard when that failure is treated as a procedural default
by the state courts. Attorney error short of ineffective assistance of
counsel does not constitute cause for a procedural default even when that
default occurs on appeal rather than at trial. To the contrary, cause
for a procedural default on appeal ordinarily requires a showing of some
external impediment preventing counsel from constructing or raising the
claim. Pp. 490-492.
(¢) Adherence to the cause and prejudice test in the conjunctive will
not prevent federal habeas corpus courts from ensuring the fundamental
fairness that is the central concern of the writ of habeas corpus. That
test is a sound and workable means of channeling the discretion of fed-
eral habeas courts. However, in an extraordinary case, where a con-
e
v
|
OCTOBER TERM, 1985
Syllabus 477 U. S.
stitutional violation has probably resulted in the conviction of one who is
actually innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default. Pp. 492-497.
(d) Respondent has never alleged any external impediment that might
have prevented counsel from raising his discovery claim in his state
petition for review, and has disavowed any claim that counsel's perform-
ance on appeal was so deficient as to make out an ineffective assistance
claim. Accordingly, respondent's petition for federal habeas review of
his procedurally defaulted discovery claim must be dismissed for failure
to establish cause for the default, unless it is determined on remand that
the victim's statements contain material that would establish respond-
ent’s actual innocence. P. 497.
754 F. 2d 520, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which BURGER,
C. J., and WHITE, POWELL, and REHNQUIST, JJ., joined. STEVENS, J.
filed an opinion concurring in the judgment, in which BLACKMUN, J.,
joined, post, p. 497. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL, J., joined, post, p. 516.
Jerry P. Slonaker, Senior Assistant Attorney General of
Virginia, argued the cause for petitioner. With him on the
briefs were William G. Broaddus, Attorney General, and
Donald R. Curry, Assistant Attorney General.
Deputy Solicitor General Frey argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Acting Solicitor General Fried, Assistant
Attorney General Trott, Edwin S. Kneedler, and Kathleen
A. Felton.
Sherman L. Cohn, by appointment of the Court, 474 U. S.
898, argued the cause for respondent. With him on the brief
was Steven H. Goldblatt. ™
*Briefs of amici curiae urging reversal were filed for the State of Idaho
et al. by James Thomas Jones, Attorney General of Idaho, and Lynn E.
Thomas, Solicitor General, Charles A. Graddick, Attorney General of
Alabama, Harold M. Brown, Attorney General of Alaska, Robert K.
Corbin, Attorney General of Arizona, John Steven Clark, Attorney Gen-
eral of Arkansas, Duane Woodward, Attorney General of Colorado, John
J. Kelley, Chief State’s Attorney of Connecticut, Charles M. Oberly,
MURRAY ». CARRIER
478 Opinion of the Court
JUSTICE O'CONNOR delivered the opinion of the Court.
We granted certoriari in this case to consider whether 1
federal habeas petitioner can show cause for a procedural de-
fault by establishing that competent defense counsel inad-
Attorney General of Delaware, Michael J. Bowers, Attorney General of
Georgia, Richard Opper, Attorney General of Guam, Corinne K. A.
Watanabe, Attorney General of Hawaii, Neil F. Ha rtigan, Attorney Gen-
eral of Illinois, Linley E. Pearson, Attorney General of Indiana, Robert
T. Stephan, Attorney General of Kansas, David L. Armstrong, Attorney
General of Kentucky, William J. Guste, Jr., Attorney General of Lou-
isiana, Stephen H. Sachs, Attorney General of Maryland, Francis X.
Bellotti, Attorney General of Massachusetts, Frank J. Kelley, Attorney
General of Michigan, Edwin L. Pittman, Attorney General of Mississippi,
William L. Webster, Attorney General of Missouri, Mike Greely, Attorney
General of Montana, Robert M. Spire, Attorney General of Nebraska,
Brian McKay, Attorney General of N evada, Stephen E. Merrill, Attorney
General of New Hampshire, Irwin I. Kimmelman, Attorney General of
New Jersey, Paul Bardacke, Attorney General of New Mexico, Lacy
H. Thornburg, Attorney General of North Carolina, Nicholas Spaeth, At-
torney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney
General of Ohio, Michael Turpen, Attorney General of Oklahoma, LeRoy
S. Zimmerman, Attorney General of Pennsylvania, Hector Rivera Cruz,
Attorney General of Puerto Rico, Arlene Violet, Attorney General of
Rhode Island, 7. Travis Medlock, Attorney General of South Carolina,
Mark V. Meierhenry, Attorney General of South Dakota, W. J. Michael
Cody, Attorney General of Tennessee, Jim Mattox, Attorney General of
Texas, David L. Wilkinson, Attorney General of Utah, Jeffrey Amestoy,
Attorney General of Vermont, Victor D. Schneider, Acting Attorney Gen-
eral of The Virgin Islands, William G. Broaddus, Attorney General of
Virginia, Kenneth O. Eikenberry, Attorney General of Washington, Char-
lie Brown, Attorney General of West Virginia, Bronson C. La Follette, At-
torney General of Wisconsin, and Archie G. McCli ntock, Attorney General
of Wyoming; for the State of Florida by Jim Smith, Attorney General, and
Raymond L. Marky and Gregory G. Costas, Assistant Attorneys General;
and for the Legal Foundation of America et al. by Susan Crump, David
Crump, and James P. Manak.
Larry W. Yackle, Charles S. Sims, and Burt Neuborne filed a brief
for the American Civil Liberties Union et al. as amici curiae urging
affirmance.
OCTOBER TERM, 1985
Opinion of the Court 477 U. S.
and undermine the trust between attorney and client.” Nor
will it always be easy to classify counsel’s behavior in accord-
ance with the deceptively simple categories propounded by
the Court of Appeals. Does counsel act out of “ignorance,”
for example, by failing to raise a claim for tactical reasons
after mistakenly assessing its strength on the basis of an in-
complete acquaintance with the relevant precedent? The
uncertain dimensions of any exception for “inadvertence” or
“ignorance” furnish an additional reason for rejecting it.
We think, then, that the question of cause for a procedural
default does not turn on whether counsel erred or on the kind
of error counsel may have made. So long as a defendant is
represented by counsel whose performance is not constitu-
tionally ineffective under the standard established in Strick-
land v. Washington, supra, we discern no inequity in requir-
ing him to bear the risk of attorney error that results in
a procedural default. Instead, we think that the existence
of cause for a procedural default must ordinarily turn on
whether the prisoner can show that’Some objective factor ex-
ernal to the defense impeded counsel's efforts to comply
ith the State’s procedural rule. Without attempting an ex-
haustive catalog of such objective impediments to compliance
ith a procedural rul¢; we note that a showing that the fac-
egal basis for a claim was not reasonably available to
ounsel, see Reed v. Ross, 468 U. S., at 16, or that “some in-
terference by officials,” Brown v. Allen, 344 U. S. 443, 486
(1953), made compliance impracticable, would constitute
cause under this standard.
—Stmitarly, if the procedural default is the result of ineffec-
tive assistance of counsel, the Sixth Amendment itself re-
quires that responsibility for the default be imputed to the
State, which may not “conduc[t] trials at which persons who
face incarceration must defend themselves without adequate
legal assistance.” Cuyler v. Sullivan, 446 U. S. 335, 344
(1980). Ineffective assistance of counsel, then, is cause for a
procedural default. However, we think that the exhaustion
MURRAY v. CARRIER 489
478 Opinion of the Court
doctrine, which is “principally designed to protect the state
courts’ role in the enforcement of federal law and prevent dis-
ruption of state judicial proceedings,” Kose v. Lundy, 455
U. S. 509, 518 (1982), generally requires that a claim of inef-
fective assistance be presented to the state courts as an inde-
pendent claim before it may be used to establish cause for a
procedural default. The question whether there is cause for
a procedural default does not pose any occasion for applying
the exhaustion doctrine when the federal habeas court can
adjudicate the question of cause—a question of federal law —
without deciding an independent and unexhausted constitu-
tional claim on the merits. But if a petitioner could raise his
ineffective assistance claim for the first time on federal ha-
beas in order to show cause for a procedural default, the fed-
eral habeas court would find itself in the anomalous position
of adjudicating an unexhausted constitutional claim for which
state court review might still be available. The principle of
comity that underlies the exhaustion doctrine would be ill
served by a rule that allowed a federal district court “to upset
a state court conviction without an opportunity to the state
courts to correct a constitutional violation,” Darr v. Burford,
339 U. S. 200, 204 (1950), and that holds true whether an in-
effective assistance claim is asserted as cause for a proce-
dural default or denominated as an independent ground for
habeas relief.
It is clear that respondent failed to show or even allege
cause for his procedural default under this standard for
cause, which Engle squarely supports. Respondent argues
nevertheless that his case is not controlled by Engle because
it involves a procedural default on appeal rather than at trial.
Respondent does not dispute, however, that the cause and
prejudice test applies to procedural defaults on appeal, as we
plainly indicated in Reed v. Ross, 468 U. S., at 11. Reed,
which involved a claim that was defaulted on appeal, held
that a habeas petitioner could establish cause for a procedural
default if his claim is “so novel that its legal basis is not rea-
i A TC AEE Ce 1 ack RO OLY Ee
#
342 890 FEDERAL REPORTER, 2d SERIES
jury’s recommendation of life imprisonment
when balanced against the several aggra-
vating factors. The supreme court deter-
mined that the jury was made aware of the
victim's reputation for violence, Lusk 11,
498 So.2d at 905, and that the jury’s recom-
mendation “was not based on any valid
mitigating factor discernible from the
record.” Lusk I, 446 So.2d at 1043. That
court further determined from a review of
the record that the trial judge “did not
ignore evidence presented by Lusk in miti-
gation,” but found it “clear that the trial
judge did not believe that said evidence in
its totality rose to the level of mitigation in
Lusk’s case.” Id. The state supreme
court thus held that the dictates of Tedder
had been satisfied.
The state trial court acknowledged that
it considered the mitigating evidence of-
fered by Lusk in his trial, as did the Su-
preme Court of Florida. This court may
examine the application of Florida's jury
override scheme, Parker v. Dugger, 876
F.2d 1470, 1474 (11th Cir.1989), but we may
not second-guess the state courts regard-
ing whether the trial court “complied with
the mandates of Tedder.” Id. at 1475. It
is not our function to decide whether we
agree with the advisory jury or with the
trial judge and the Supreme Court of Flor-
ida. Our review, rather, is limited to ascer-
taining whether the result of the override
scheme is arbitrary or discriminatory.
Spaziano v. Florida, 468 U.S. 447, 465, 104
S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984).
Lusk contends that we should grant only
limited deference to state override proceed-
ings. On the contrary, to the extent that
those proceedings do not produce an arbi-
trary or discriminatory result, the Constiin-
tion is not violated, and we will not s coud-
guess the state courts on a matter of state
law. The state courts concluded that there
were no reasonable bases for the jury's
recommendation despite the fact that both
the jury as advisor and the judge as sen-
tencer were made aware of mitigating
9. These claims are: (1) that Lusk’s death sen-
tence violated the Eighth Amendment because it
was based on the unconstitutionally vague statu-
tory aggravating circumstance that the murder
was “especially heinous, atrocious or cruel,” (2)
that the Florida death penalty statute improper-
ly shifted the burden of proof to the defendant
to show that mitigating circumstances out-
weighed aggravating circumstances; (3) that
factors. On the facts of this case, we FE
not find that the result of the applicati
Tedder was arbitrary or irrational,
IV. Conclusion
Because it granted relief as to the sen-
tence on the basis of the jury override, the
district court did not address other claimg
asserted by Lusk which challenge his sen.
tence.” While we could address thoge
claims, see Lindsey v. Smith, 820 F.2d
1137 (11th Cir.1987), we conclude that a
proper exercise of our discretion in thig
case, given the nature of the claims and the
issues presented, is to remand them to the
district court so that the district court may
address them in the first instance. The
judgment of the district court is RE.
VERSED to the extent that it grants relief
on the jury override issue and AFFIRMED
on all other issues. The case is REMAND.
ED to the district court for consideration of
the claims that court has not yet addressed.
Warren McCLESKEY,
Petitioner-Appellee,
Vv.
Walter ZANT, Superintendent, Georgia
Diagnostic and Classification Center,
Respondent-Appellant.
Nos. 88-8085, 89-8085.
United States Court of Appeals,
Eleventh Circuit.
Nov. 22, 1989.
As Amended Dec. 13, 1989.
After defendant's convictions and sen-
tences for murder and two counts of armed
Lusk was denied due process because counsel
failed to review the presentence report with him
prior to sentencing and because the trial court
failed to ascertain whether Lusk had reviewed
the report; and (4) that Lusk's Eighth Amend-
ment rights were violated because the state trial
judge believed that he was barred from consid-
ering notions of mercy in his sentencing deci-
sion.
robbery we:
preme Cour:
defendant p
lief. The U
the Norther
CV-1517, 1:
rester, J., &
and appeal
peals, 753 |
United Stat:
107 S.Ct. 1
defendant
The District
appealed.
Circuit Ju
abused wri
Sixth Ame:
any error t
tion was h
Revers
1. Habeas
Under
eral court
or subsequ
raises clair
prior peti
Rules Gov
definitic
2. Habeas
“Succ
claim alre:
beas pet
grounds i
tion is anc
US.CA.
§ 2254 Ce
§ 2254.
See
for ot
definit
3. Habea:
State
beas peti’
Governin,
C.A. foll
'ERIES
the facts of this case
the result of the applicat; :
on arbitrary or irrationa) ot
» We do
Iv. Conclusion
granted relief as to the sen- asis of the jury override, the did not address other claimg usk which challenge his sen- . we could address those
indsey v. Smith, 820 F.24
~.1987), We conclude that a ‘e of our discretion ip this
nature of the claims and the
d, is to remand them to the
» that the district court may
in the first instance. The
he district court is RE-
extent that it grants relies
ride issue and AFFIRMED
es. The case is REMAND.
:t court for consideration of
ourt has not yet addressed.
KEY NUMBER SYSTEM)
+ McCLESKEY,
ner-Appellee,
wv. : I.
uperintendent, Georgia
Classification Center,
lent-Appeliant.
8085, ‘89-8085,
s Court of Appeals,
ath Circuit.
22, 1989.
d Dec. 13, 1989.
t's convictions and sen-
nd two counts of armed
‘© process because counsel
resentence report with him
ad because the trial court
hether Lusk had reviewed
hat Lusk’s Eighth Amend.
ated because the state {ria
© was barred from consid.
cy in his sentencing deci-
l
a
a
E
E
McCLESKEY v. ZANT
343 Cite as 890 F.2d 342 (11th Cir. 1989)
robbery were affirmed by the Georgia Su-
preme Court, 245 Ga. 108, 263 S.E.2d 146,
defendant petitioned for habeas corpus re-
lief. The United States District Court for
the Northern District of Georgia, Nos. 87-
CV-1517, 1:87-CV-1517-JOF, J. Owen For-
rester, J., granted relief, 580 F.Supp. 338,
and appeal was taken. The Court of Ap
peals, 753 F.2d 877, reversed. After the
United States Supreme Court, 481 U.S. 279,
107 S.Ct. 1756, 95 L.Ed.2d 262, affirmed,
defendant filed second habeas petition.
The District Court granted relief, and State
appealed. The Court of Appeals, Kravitch,
Circuit Judge, held that: (1) petitioner
abused writ by deliberately abandoning his
Sixth Amendment Massiah claim, and (2)
any error based on alleged Massiak viola-
tion was harmless.
Reversed.
1. Habeas Corpus ¢=898(1)
Under doctrine of “abuse of writ,” fed-
eral court may decline to entertain second
or subsequent habeas corpus petition that
raises claim that petitioner did not raise in
prior petition. 28 U.S.CA. § 2244(b);
Rules Governing § 2254 Cases, Rule 9(b),
28 US.C.A. foll. § 2254.
See publication Words and Phrases
for other judicial constructions and
definitions.
2. Habeas Corpus €=897, 898(1)
“Successive petition” is one that raises
claim already adjudicated through prior ha-
beas petition, while petition that raises
grounds for relief not raised in prior peti-
tion is analyzed as “abuse of the writ.” 28
US.C.A. § 2244(b): Rules Governing
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll.
§ 2254.
See publication Words and Phrases
for other judicial constructions and
definitions.
3. Habeas Corpus ¢=899
State has burden of pleading that ha-
beas petitioner has abused the writ. Rules
Governing § 2254 Cases, Rule 9(b), 28 U.S.
C.A. foll. § 2254.
4. Habeas Corpus ¢=898(2)
Once state has alleged abuse of the
writ, habeas petitioner must be afforded
opportunity to justify his or her previous
failure to raise claim. Rules Governing
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll.
§ 2254.
5. Habeas Corpus ¢=899
If court determines that habeas peti-
tioner has failed to carry burden of disprov-
ing abuse of the writ, it may dismiss peti-
tion unless ends of justice demand that
court reach merits. Rules Governing
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll.
§ 2254.
6. Habeas Corpus ¢=899
Whether second or subsequent habeas
petition is to be dismissed on abuse of the
writ grounds is left to sound discretion of
district court; discretion in such matters is
not unfettered, however, and its sound ex-
ercise will rarely permit district court to
hear petition that clearly constitutes abuse
of the writ. Rules Governing § 2254
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254.
7. Habeas Corpus ¢=898(3)
Habeas petitioner abused writ by delib-
erately abandoning his Sixth Amendment
Massiah claim when he raised claim in ini-
tial state habeas petition, then failed to
raise claim in his first federal habeas peti-
tion, although defendant was unaware of
evidence supporting claim until he filed sec-
ond federal habeas petition; counsel had
some factual basis for raising claim in state
habeas petition, and failed to raise claim in
first federal petition after initial investiga-
tory efforts proved unsuccessful. 28 U.S.
C.A. § 2244(b); Rules Governing § 2254
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254;
U.S.C.A. Const.Amend. 6.
8. Habeas Corpus €=898(3)
Abandoning claim after initial investi-
gatory efforts prove unsuccessful cannot
insulate habeas petitioner from abuse of
the writ. 28 U.S.C.A. § 2244(b); Rules
Governing § 2254 Cases, Rule 9(b), 28 U.S.
C.A. foll. § 2254.
344 890 FEDERAL REPORTER, 2d SERIES
9. Habeas Corpus &=898(3)
Habeas petitioner and his or her coun-
sel may not circumvent abuse of the writ
doctrine by failing to follow through with
investigation and then later claiming that
claim could not have succeeded earlier on
facts as then known.
Rule 9(b), 28 U.S.C.A. foll. § 2254.
10. Criminal Law ¢=394.1(2)
Remedy for Massiah violation is not
automatic reversal of conviction, but rather |
exclusion of evidence tainted by violation of |
defendant's right to counsel.
Const.Amend. 6.
US.C.A.
11. Habeas Corpus ¢490(3)
Any error based on alleged Massiakh
violation, occurring when inmate testified
in murder prosecution that defendant made
“jailhouse confession” in which he admitted
that he shot police officer during robbery,
was harmless, in view of other evidence
indicating defendant's guilt, including
statements of codefendant, and defendant's
confession to his participation in robbery.
U.S.C.A. Const.Amend. 6.
Mary Beth Westmoreland, Asst. Atty.
Gen., Susan V. Boleyn, William B. Hill,
Atlanta, Ga., for respondent-appellant.
Robert H. Stroup, Atlanta, Ga., Julius L.
Chambers, NAACP Legal Defense Fund,
James M. Nabrit, II, John Charles Boger,
New York City, for petitioner-appellee.
Appeals from the United States District
Court for the Northern District of Georgia.
Before KRAVITCH and
EDMONDSON, Circuit Judges, and
RONEY, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
This is a consolidated appeal by the State
of Georgia from the district court’s grant
of Warren McCleskey’s second petition for
a writ of habeas corpus and from the dis-
trict court’s denial of the State’s motion
1. The statement of facts is taken from the Geor-
gia Supreme Court's opinion on direct appeal,
28 US.CA.
§ 2244(b); Rules Governing § 2254 Cases, |
under Fed.R.Civ.P. 60(b) for relief from the
judgment. The district court granted
writ solely on the basis of McCleskey’g
claim that his sixth amendment rights hag :
been violated under Massiah wv. Uniteq ~~
States, 377 U.S. 201, 84 S.Ct. 1199, 12
L.Ed.2d 246 (1964). Because we find that
the district court abused its discretion ip
| failing to dismiss McCleskey’s Massiah g).
legation as an abuse of the writ, we pe.
verse the district court without reaching
the merits of McCleskey’s Massiak claim op
of the State’s Rule 60(b) motion.
I. FACTS!
McCleskey was arrested and charged
with the murder of a police officer during
an armed robbery of the Dixie Furniture
Store. The store was robbed by four men.
Three entered through the back door and
one ne through the front. Each of the four
men was armed. McCleskey had a .38 cali-
ber Rossi _white-handled, nickel-plated pis-
tol, Ben Wright had a sawed-off shotgun,
and the other two had blue steel pistols.
The man who entered through the front
secured the store, forcing the employees to
lie on the floor. The others rounded up the
employees in the rear and began to tie
them up with tape. The manager was
forced at gunpoint to turn over the store
receipts, his watch, and six dollars. Re-
sponding to a silent alarm, a police officer
entered the store by the front door. He
proceeded approximately fifteen feet down
the center aisle. Two shots were fired.
One shot struck the police officer in the
head causing his death. The other shot
glanced off a pocket lighter in the officer's
pocket and lodged in a sofa. That bullet
was recovered. The robbers fled. Some-
time later, McCleskey was arrested in con-
nection with another armed robbery.
McCleskey was identified by two of the
store personnel as the robber who came in
the front door.” “Shortly after his arrest,
McCleskey confessed to participating in the
robbery, but maintained that he was not
the triggerman. One of his accomplices,
Ben Wright, testified that McCleskey ad-
McCleskey v. The State, 245 Ga. 108, 263 S.E.2d
146 (1980).
mitted to
ans, a jail
testified th
confession
triggerma:
by a bulle
handgun.
covered, X
Rossi in &
store two
IL
The jury
and two c
tenced Mc
of the pol
sentences
1980, thes
affirmed '
McCleske:
146, cert.
253, 66 L.
1981, McC
pus relief
County, 2
to his «
amendme:
leged a M:
introducti
made to
under the
v. Unitec
1199. Ti
evidentiar
preme Cc
tion for
appeal.
denied M
McCleske
659, 70 1
MecCles.
petition i
1981, ass¢
ing the w
a claim t
include ¢
States, 4
L.Ed.2d |
prosecu
Evans, or
ised fav
his testi
SERIES
Civ.P. 60(b) for relief f
The district court Wht the
on the basis of McCleskey’g
s sixth amendment rights had
d ‘under Massiah wv. United
US. 201, 84 S.Ct. 1199, 19
(1964). Because we find that
court abused its discretion jp
miss McCleskey’s Massiah a).
an abuse of the writ, we pe.
strict court without reaching
McCleskey’s Massiah claim op
3 Rule 60(b) motion.
I. FACTS!
was arrested and charged
der of a police officer during
Sbery of the Dixie Furniture
tore was robbed by four men.
1 through the back door and
the front. Each of the four
ad. McCleskey had a .38 cali-
ite-handled, nickel-plated pis-
‘ht had a sawed-off shotgun,
r two had blue steel pistols.
o entered through the front
ore, forcing the employees to
r.* The others rounded up the
the rear and began to tie
nh tape. The manager was
point to turn over the store
watch, and six dollars. Re-
silent alarm, a police officer
tore by the front door. He
roximately fifteen feet down
sle. Two shots were fired.
ick the police officer in the
his death. The other shot
socket lighter in the officer’s
iged in a sofa. That bullet
The robbers fled. Some-
Cleskey was arrested in con-
‘nother armed robbery.
vas identified by two of the
1 as the robber who came in
=~. Shortly after his arrest,
fessed to participating in the
naintained that he was not
1. One of his accomplices,
estified that McCleskey ad-
he State, 245 Ga. 108, 263 S.E.2d
McCLESKEY v. ZANT 345
Cite as 890 F.2d 342 (11th Cir. 1989)
mitted to shooting the officer. Offie Ev-
ans, a jail inmate housed near McCleskey
testified that McCleskey made a “jail house
confession” in which he claimed he was the
triggerman. The police officer was killed
by a bullet fired from a .38 caliber Rossi
handgun. Though the weapon was not re-
covered, McCleskey had stolen a .38 caliber
Rossi in_a holdup of a Red Dot grocery
store two months earlier.
II. PRIOR PROCEEDINGS
The jury convicted McCleskey of murder
and two counts of armed robbery. It sen-
tenced McCleskey to death for the murder
of the police officer and to consecutive life
sentences for the two robbery counts. In
1980, these convictions and sentences were
affirmed by the Georgia Supreme Court,
McCleskey v. State, 245 Ga. 108, 263 S.E.2d
146, cert. denied, 449 U.S. 891, 101 S.Ct.
253, 66 L.Ed.2d 119 (1980). In January of
1981, McCleskey petitioned for habeas cor-
pus relief in the Superior Court of Butts
County, asserting over twenty challenges
to his conviction and sentence. In an
amendment to his petition, McCleskey al-
leged a Massiah violation, claiming that the
introduction into evidence of statements he
made to an informer violated his rights
under the sixth amendment. See Massiah
v. United States, 377 U.S. 201, 84 S.Ct.
1199. The petition was denied after an
evidentiary hearing and the Georgia Su-
preme Court denied McCleskey’s applica-
tion for a certificate of probable cause to
appeal. The United States Supreme Court
denied McCleskey’s petition for certiorari.
McCleskey v. Zant, 454 U.S. 1093, 102 S.Ct.
659, 70 L.Ed.2d 631 (1981).
McCleskey filed his first federal habeas
petition in district court in December of
1981, asserting eighteen grounds for grant-
ing the writ. That petition did not include
a-clamn under Massiak. It did, however,
} Thelude a claim under Giglio v. United
States, 405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972), alleging that the state
prosecutor had failed to reveal that Offie
Evans, one of its witnesses, had been prom-
{Sed favorable treatment as a reward for
fis testimony. In 1984, the district court
granted habeas corpus relief as to McCles-
Key's Giglio claim. It ordered that his
conviction and sentence for malice murder
be set aside, but affirmed his convictions
and sentences for armed robbery. McCles-
key v. Zant, 580 F.Supp. 338 (N.D.Ga.
1984).
Both parties appealed and in 1985, the
Eleventh Circuit, sitting en banc, reversed
{he district court's grant of the writ on the
Giglio claim and affirmed on all claims
denied by the district court. McCleskey v.
Kemp, 758 F.2d 877 (11th Cir.1985) (en
banc). McCleskey then filed a petition for
a writ of certiorari in the Supreme Court of
the United States. The Supreme Court
granted certiorari limited to consideration
of the application of the Georgia death
penalty and affirmed the Eleventh Circuit.
McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct.
1756, 95 L.Ed.2d 262, petition for rehear-
ing denied, 482 U.S. 920, 107 S.Ct. 3199, 96
L.Ed.2d 686 (1987). .
McCleskey filed a subsequent petition
for a writ of habeas corpus in state court in
June of 1987. In an amendment to that
petition, McCleskey once again raised a
Massiah clam. alleging that newly discov-
cred evidence demonstrated that a jail in-
mate of McCleskey's was acting on behalf
of The State as an informant. The state
court granted The State’s motion to dismiss
and the Georgia Supreme Court denied
McCleskey’s application for a certificate of
probable cause.
McCleskey filed the present petition for a
writ of habeas corpus in federal district
court in July of 1987. After evidentiary
hearings on the petition in July and August
of 1987, the district court entered an order
granting habeas corpus relief only as to
McCleskey’s murder..conviction and sen-
tence based upon the finding of a Massiah
violation. McCleskey v. Kemp, No. C87-
1517A (N.D.Ga. Dec. 23, 1987).
The State now appeals the district court’s
grant of the writ, claiming that the district
court abused its discretion in failing to
dismiss McCleskey’s Massiah allegation as
an abuse of the writ and that the district
ES jit
tH
§
i
{
4
F
346 890 FEDERAL REPORTER, 2d SERIES
court erred in finding a violation of Massi-
ah.?
III. ABUSE OF THE WRIT
A. Background
[1] Under the doctrine of “abuse ef the
writ,” a federal court may decline to enter-
tain a second or subsequent habeas corpus
petition that raises a claim that the peti-
tioner did not raise in a prior petition. The
doctrine 1s grounded in the court's eg-
uitable power to decline to entertain a ha-
beas corpus petition properly within its jur-
isdiction fwhen “a suitor’s conduct in rela-
ftion to the matter at hand ... disentitle[s]
| him to the relief he seeks.” Sanders v.
| United States, 373 US. 1, 17, 83 S.Ct.
| 1068, 1078, 10 L.Ed.2d 148 (1963) (quoting
1
J
Fay v. Noia, 372 US. 391, 438, 83 S.Ct.
822, 849, 9 L.Ed.2d 837 (1968).
[2] __The statutory basis _for the doctrine;
of abuse of the writ in cases of successive
petitions for habeas corpus can be found at
28 U.S.C. § 2244(b)® and Rule 9(b) of the
Rules Governing Section 2254 Cases in the
United States District Courts. These pro-
visions address the problem of prisoners
filing the same claims in successive peti-
tions as well as the problem of prisoners
who abuse the writ by filing their claims
piecemeal. A ‘‘successive petition” _is_one
that raises a claim already adjudicated
through a prior petition, while a petition
that raises grounds for relief not raised in
2. This court stayed the briefing schedule of the
appeal pending the State's filing in district court
of a motion under Fed.R.Civ.P. 60(b) for relief
from the judgment based on the availability of
witness Offie Evans. The district court denied
the motion and this court granted the State's
motion to consolidate the State's original appeal
and its appeal from the denial of the motion for
relief from the judgment.
28 U.S.C. § 2244(b) states as follows:
When after an evidentiary hearing on the
merits of a material factual issue, or after a
hearing on the merits of an issue of law, a
person in custody pursuant to the judgment of
a State court has been denied by a court of
the United States or a justice or judge of the
United States release from custody or other
remedy on an application for a writ of habeas
corpus, a subsequent application for a writ of
the prior petition is analyzed as an “abuse
of the writ.” See Gunn v. Newsome, 881
F.2d 949, 955 n. 6 (11th Cir.1989) (en banc)
(plurality opinion), petition Sor cert. filed,
No. 89-611, 1989 WL 129621 (Oct. 16,
1989).
A federal court's decision to exercise itg
equitable power to dismiss a petition is
based on different considerations in the
two types of cases. In cases of successive
petitions, equity usually will not permit a
petitioner to reassert a claim resolved
against him “in the hope of getting before
a different judge in multijudge courts.”
See See. 2254 Cases R. 9 advisory commit-
tee’s note. [Tn
piecemeal litigation” or “collateral proceed:
ings whose only purpose 1s to vex, harass,
or delay.” Sanders, 313 U.S. at 18, 83
S.Ct. at 1078. In both instances, the need
for finality in criminal law counsels strong-
ly against courts repeatedly reviewing
criminal convictions. See Kuhlmann v.
Wilson, 477 U.S. 436, 452-53, 106 S.Ct.
2616, 2626-27, 91 L.Ed.2d 364 (1986) (plu-
rality opinion).
[3] The state has the burden of plead-
ing that the habeas petitioner has abused
the writ. Price v. Johnston, 334 U.S. 266,
291-92, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356
(1948). This circuit has held that “[t]he
state carries its burden by recounting the
petitioner's writ history, identifying the
claims not raised before the instant petition
habeas corpus in behalf of such person need
not be entertained by a court of the United
States or a justice or judge of the United
States unless the application alleges and is
predicated on a factual or other ground not
adjudicated on the hearing of the earlier ap-
plication for the writ, and unless the court,
justice, or judge is satisfied that the applicant
has not on the earlier application deliberately
withheld the newly asserted ground or other-
wise abused the writ.
Rule 9(b) provides as follows:
Successive Petitions. A second or successive
petition may be dismissed if the judge finds
that it fails to allege new or different grounds
for relief and the prior determination was on
the merits or, if new and different grounds
are alleged, the judge finds that the failure of
the petitioner to assert those grounds in a
prior petition constituted an abuse of the writ.
[Tn cases Of abuse OI the writ,
[equity counsels against allowing “needless
and alleging
writ in viol
9(b).” Beo
1371, 1376 (
U.S. 975, 1]
(1985). The
den here, ¢
did not ass:
federal ha!
[4,5] M
assert the «
the federal
the courts
piecemeal
v. Wainw
telle, 632
Once the
writ, the !
opportunit
to raise ti
- petitioner
tion, cour:
show that
the claim
not due t«
ard v. H
S.Ct. 752
curiam) (
four othe
F.2d 13%
for cert.
113448 |
wright,
cert. den
84 L.Ed.
F.2d 727
cert. der
L.Ed.2d
that the
burden
it may
of justic
merits.
S.Ct. at
F.2d at
1522, 18
US. —
(1988).
5, InB
1209
adopte¢
the fc
Octob
‘RIES
ion is analyzed as an «
See Gunn v. Nelrer e
n. 6 (11th Cir.1989) (en bang)
ion), petition for cert. filed,
1989 WL 129621 (Oct, 16
urt’s decision to exercise jg
er to dismiss a petition jg
rent considerations in the
ises. In cases of successive
y usually will not permit 5
reassert a claim resolyeq
: the hope of getting before
ige in multijudge courts”
-ases R. 9 advisory commit.
cases of abuse of the writ,
against allowing “needless
tion” or “collateral proceed-
' purpose is to vex, harass,
nders, 873 U.S. at 18, 83
In both instances, the need
iiminal law counsels strong-
rts repeatedly reviewing
tions. See Kuhlmann ov.
S. 436, 452-53, 106 S.Ct.
71 L.Ed.2d 364 (1986) (plu-
: has the burden of plead-
oeas petitioner has abused
v. Johnston, 334 U.S. 266,
1049, 1063, 92 L.Ed. 1356
cuit has held that ‘[t]he
burden by recounting the
- history, identifying the
“before the instant petition
in. behalf of such person need
ned by a court of the United
stice or judge of the United
2e application alleges and is
+ factual or other ground not
the hearing of the earlier ap-
e writ, and unless the court,
is satisfied that the applicant
-arlier application deliberately
wly asserted ground or other-
© Writ.
les as follows:
tions. A second or successive
dismissed if the judge finds
‘ege new or different grounds
> prior determination was on
‘new and different grounds
judge finds that the failure of
) assert those grounds in a
nstituted an abuse of the writ.
S
e
t
d
e
r
McCLESKEY v. ZANT 347
Cite as 890 F2d 342 (11th Cir. 1989)
and alleging that the petitioner abused the
writ in violation of 28 U.S.C. § 2254, Rule
9(b).” Booker v. Wainwright, 764 F.2d
1371, 1376 (11th Cir.1985), cert. denied, 474
U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324
(1985). The State has clearly met its bur-
den here, as it is evident that McCleskey
did not assert his Massiak claim in his first
federal habeas petition.
[4,5] McCleskey’s previous failure to
assert the claim does not, however, require
the federal courf to dismiss his petition, for
fhe courts have recognized that “not all
piecemeal litigation is needless.” Booker
v. Wainwright, id.; see also Haley v. Es-
telle, 632 F.2d 1273, 1276 (5th Cir.1980).°
Once the state has alleged abuse of the
writ, the petitioner must be afforded the
opportunity to justify his previous failure
Th deciding Whether a ps : LRG
\ clearly abusive petition.
to raise the claim.
. petitioner has presented sufficient justifica-
tion, courts have required the petitioner to
show™ That he did not deliberately abandon
the claim and that his failure to raise it was
not due to inexcusable neglect. See Wood-
ard v. Hutchins, 464 U.S. 377, 379, 104
S.Ct. 752, 753, 78 L.Ed.2d 541 (1984) (per
curiam) (Powell, J., concurring, joined by
four other justices); Demps v. Dugger, 814
F.2d 1385, 1391 (11th Cir.1989), petition
for cert. filed, No. 89-5277, 1989 WL
113448 (Aug. 4, 1989); Witt v. Wain-
wright, 755 F.2d 1396, 1397 (11th Cir.),
cert. denied, 470 U.S. 1039, 105 S.Ct. 1415,
84 1L.Ed.2d 801 (1985); Potts v. Zant, 638
F.2d 727, 740-41 (5th Cir. Unit B 1981),
cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70
L.Ed.2d 187 (1981). If a court determines
that the petitioner has failed to carry his
burden of disproving an abuse of the writ,
it may dismiss the petition unless the ends
of justice demand that the court reach the
merits. Sanders, 373 U.S. at 16-19, 83
S.Ct. at 1078-79; Demps v. Dugger, 874
F.2d at 1391; Davis v. Kemp, 829 F.2d
1522, 1526 (11th Cir.1987), cert. denied, —
U.S. —, 108 S.Ct. 1099, 99 L.Ed.2d 262
(1988).
5. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of
the former Fifth Circuit handed down before
October 1, 1981.
[6] Whether a second or subsequent pe-
tition is to be dismissed on abuse of the
writ grounds is left to the sound discretion
of the district court. Sanders, 373 U.S. at
18, 83 S.Ct. at 1079; Darden v. Dugger,
825 F.2d 287, 294 (11th Cir.1987), cert. de-
nied, — U.S. —, 108 S.Ct. 1125, 99
L.Ed.2d 285 (1988); Potts v. Zant, 638 F.2d
at 741. Yet discretion in such matters_is
not unfettered, and its sound exercise will
rarely permit a district court to hear a
petition that clearly constitutes an abuse of
the writ. See Gunn v. Newsome, 881 F.2d
at 949.
In the instant appeal, the district court
found that McCleskey could not be said to
have intentionally abandoned his claim.
We disagree and find that the district court
abused its discretion in failing to dismiss a
B. Deliberate Abandonment of the Mas-
siah Claim
[71 McCleskey asserts that his failure
to raise a Massiah claim in his earlier fed-
eral petition is justified because at the time
he filed that petition, he lacked the evi.
dence to support such a claim. To demon-
“strate a violation of sixth amendment
rights under Massiah v. United States, 377
U.S. 201, 84 S.Ct. 1199, a defendant must
show that the prosecution deliberately elic-
ited incriminating statements from him in
the absence of his lawyer. Massiah itself
involved statements made by a defendant
free on bail to a co-indictee in a car that
had been wired by the government. In
United States v. Henry, 447 U.S. 264, 100
S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Su-
preme Court applied Massiah to a situation
in which incriminatory statements were
made to a cellmate who was a government
informant. In Kuhlmann v. Wilson, the
Supreme Court stressed that a defendant
alleging a Massiah violation “must demon-
strate that the police and their informant
6. In Stein v. Reynolds Securities, Inc., 667 F.2d
33 (11th Cir.1982), this court adopted as binding
precedent all decisions of Unit B of the former
Fifth Circuit handed down after September 30,
1981.
348
took some action, beyond merely listening,
that was designed deliberately to elicit in-
criminating remarks.” 477 U.S. at 459, 106
S.Ct. at 2630.7
McCleskey bases his Massiah claim on
two pieces of evidence. The first is a 21-
page written statement of Offie Evans, a
prisoner who was incarcerated in the cell
next to McCleskey’s when McCleskey was
in the Fulton County Jail awaiting trial.
Evans testified against McCleskey at trial,
relating several incriminating statements
made by McCleskey. The written state-
ment, which had been given to the Atlanta
Police Department in August of 1978, sets
out these conversations in great detail,
demonstrating that Evans lied to McCles-
key in order to get information from him.
McCleskey argues that the written state-
ment shows evidence of an ab initio rela-
tionship between Evans and the prosecu-
tion and is thus highly relevant to his Mas-
“siah claim. :
The second piece of evidence McCleskey
uses to support his Massiak claim is_the
testimony of Ulysses Worthy who was cap-
fain of the day watch at the Fulton County
Jail during the summer of 1978. Worthy
testified at two separate points during the
district court hearings on McCleskey’s sec-
ond habeas petition. Though Worthy’s tes-
timony was at times confused and contra-
dictory, the district court credited Worthy’s
assertion that at some point some officer
ifwoTved with the. case had asked that Ev:
ans be moved to a different cell. The dis-
trict court judge relied heavily on Worthy’s
testimony in holding that McCleskey had
presented a valid Massiah claim. In fact,
he found that “[t]he lack of corroboration
by other witnesses is not surprising; the
other witnesses, like Assistant District At-
torney Parker, had no reason to know of a
request to move Evans or, like Detective
Dorsey, had an obvious interest in conceal
7. In Lightbourne v. Dugger, 829 F.2d 1012 (11th
Cir.1987), cert. denied, — U.S. —, 109 S.Ct.
329, 102 L.Ed.2d 346 (1988), this circuit charac-
terized petitioner's burden in a Massiah/ Henry
claim as one involving two elements: “In order
to establish a violation of the Sixth Amendment
in a jailhouse informant case, the accused must
show (1) that a fellow inmate was a government
890 FEDERAL REPORTER, 2d SERIES
ing any such arrangement. Worthy, by
contrast, had no apparent interest or bias
that would explain any conscious decep-
tion.” McCleskey, No. C87-1517TA, slip op.
at 22.
McCleskey maintains that he was un-
aware of both pieces of evidence critical to
his Massiak claim until well after he filed be
his first federal habeas petition. [Tis unTy
Contested that he did not obtain Evans’ |
statement until July of 1987 and that he did i
| not know about the existence of Worthy - = 3
until the time of the hearing on the second |
federal habeas petition. The State strong-
ly contends that habeas counsel realized or -
should have realized that Evans had made
a written statement concerning his conver-
sations with McCleskey and asserts that
petitioner’s counsel should have made some
effort to obtain that statement. The dis-
trict court found, however, that McCleskey
was not in fact aware of the written state-
ment, and we cannot say that this determi-
nation is clearly erroneous.
[ Assuming that McCleskey was unaware | ka 1
[of both pieces of evidence, the question 4
IbeTore us is whether McCleskey’s unaware- |
ness of the factual bases for his Massiak
claim at the time of his first federal habeas |
petition is sufficient to justify his failure to
[present the claim. The district court found
that it was sufficient, holding that McCles-
key's unawareness precluded a finding of
deliberate abandonment of the claim, de-
spite the fact that McCleskey had raised it
in his first state habeas petition. We dis-
agree.
In finding that McCleskey did not delib-
erately abandon his Massiah claim, the dis-
trict court stated that:
First petitioner cannot be said to have
intentionally abandoned this claim. Al
though petitioner did raise a Massiah
claim in his first state petition, that claim
was dropped because it was obvious that
agent; and (2) that the inmate deliberately elic-
ited incriminating statements from the ac-
cused.” Id. at 1020.
8. For instance, Evans told McCleskey that his
name was Charles, that he was the uncle of
codefendant Ben Wright, and that he was sup-
posed to be a participant in the robbery himself.
’d SERIES
such arrangement. Worthy, by
had no apparent interest or biag
1ld ‘explain any conscious decep-
cCleskey, No. C87-1517A, slip op.
key maintains that he was un-
both pieces of evidence critical to
ah claim until well after he filed
federal habeas petition. It is un-
that he did not obtain Evang’
¢ until July of 1987 and that he did
about the existence of Worthy
ime of the hearing on the second
beas petition. The State strong-
's that habeas counsel realized or
ve realized that Evans had made
statement concerning his conver-
‘th McCleskey and asserts that
3 counsel should have made some
btain that statement. The dis-
found, however, that McCleskey
fact aware of the written state-
we cannot say that this determi-
learly erroneous.
g that McCleskey was unaware
eces of evidence, the question
3 whether McCleskey’s unaware-
> Jactual bases for his Massiah
> time of his first federal habeas
ufficient to justify his failure to
claim. The district court found -
sufficient, holding that McCles-
areness precluded a finding of
abandonment of the claim, de-
ct that McCleskey had raised it
state habeas petition. We dis-
that McCleskey did not delib-
«don his Massiah claim, the dis-
stated that:
titioner cannot be said to have
lly abandoned this claim. Al-
otitioner did raise a Massiak
s first state petition, that claim
ed because it was obvious that
2) that the inmate deliberately elic-
inating statements from the ac-
at 1020. -
ce, Evans told McCleskey that his
‘harles, that’ he was the uncle of
Ben Wright, and that he was sup-
. participant in the robbery himself.
a
P
E
McCLESKEY v. ZANT 349
Cite as 890 F2d 342 (11th Cir. 1989)
it could not succeed given the then-
known facts. At the time of his first
federal petition, petitioner was unaware
of Evans’ written statement, which, as
noted above, contains strong indications
of an ab initio relationship between Ev-
ans and the authorities. Abandoning a
claim whose supporting facts only later
become evident is not an abandonment
that “for strategic, tactical, or any other
reasons ... can be described as the delib-
erate by-passing of state procedures.”
... Petitioner's Massiak claim is there-
fore not an abuse of the writ on which no
evidence should have been taken. This is
not a case where petitioner has reserved
his proof or deliberately withheld his
claim for a second petition.... Nor is
the petitioner now raising an issue identi-
cal to one he earlier considered without
merit.
McCleskey, No. C87-1517A, slip op. at 24
(citations omitted).
This holding by the district court miscon-
strues the meaning of deliberate abandon-
ment. McCleskey included a Massiah
claim in his first state petition, dropped it
in his first federal petition, and now asserts
it again in his second federal petition.
Given that McCleskey had asserted the
Massiah claim in his first state habeas
petition, it is clear that the issue was not
unknown to him at the time of his first
federal petition. Further, we must assume
that at the time McCleskey filed his first
state habeas petition, counsel had deter-
mined that there was some factual basis
for a Massiakh claim. Indeed, such a deter-
mination is not surprising. Not only was
In an amendment to his first state petition,
McCleskey alleged that:
The introduction into evidence of petitioner's
statements to an informer, elicited in a situa-
tion created to induce the petitioner to make
incriminating statements without assistance
of counsel, violated the petitioner's right to
counsel under the Sixth Amendment to the
Constitution of the United States and Section
2-111 of the 1976 Constitution of the State of
Georgia.
18. Evans testified at trial as to certain state-
ments that McCleskey had made in prison.
11. In Giglio v. United States, 405 U.S. 150, 92
S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme
counsel aware that Evans was in a cell next
to McCleskey,!® but counsel was also aware
that some sort of relationship existed be-
tween Evans and the police, as this formed
the basis of McCleskey’s Giglio claim.
The petitioner and his counsel did not acci-
dentally fail to include the Massiak claim in
the federal petition, but made a knowing
choice not to pursue the claim after having
raised it previously. This constitutes prima
facie evidence of deliberate abandonment.
In Darden v. Dugger, we stated that:
The record shows that the issue present-
ed in this third petition was specifically
withdrawn from the district court’s eon-
sideration as being not well founded.
The issue was abandoned. Intentional
abandonment of a claim is precisely the
context that application of the concept of
abuse of the writ is intended to address.
Witt, 755 F.2d at 1397. Petitioner may
be deemed to have waived his right to a
hearing on a successive application for
federal habeas relief when he deliberate-
ly abandons one of his grounds at the
first hearing.
825 F.2d at 294.
When asked at the second federal habeas
hearing why he did not pursue the Massiah
claim in his first federal petition, counsel
responded that his efforts to find evidence
in support of the claim had failed. It ap-
pears, however, that these efforts were
somewhat lacking. Counsel testified that
he informally attempted to contact jailers
at the Fulton County Jail, but that they
could provide him with no information.
Court held that the state violates due process
when it obtains a conviction on the basis of a
witness's testimony when the witness has failed
to disclose a promise of favorable treatment
from the prosecution. McCleskey included a
Giglio claim in his first state and first federal
habeas petitions. :
12. At his second federal habeas hearing, the
lawyer who represented McCleskey at the first
federal habeas hearing testified that he “spoke
with a couple of Atlanta Bureau of Police Ser-
vices Officers” in order to find out how to devel-
op factual evidence in support of a claim. Pur-
suant to their suggestion, counsel spoke with
two or three persons who were deputies at the
Fulton County Jail. He testified that “none of
350
He also noted that at a deposition taken for
the first state habeas hearing, Russell Par-
ker, the District Attorney prosecuting the
case, claimed that he was unaware of any
instance in which Evans had worked for
the Atlanta Police Department prior to his
overhearing conversations at the Fulton
County Jail. Counsel testified that he did
not carry the Massiah claim over into the
federal habeas petition because he “looked
at what we had been able to develop in
support of the claim factually in the state
habeas proceeding and made the judgment
that we didn’t have the facts to support the
claim and, therefore, did not bring it into
federal court.”
[8] Abandoning a claim after initial in-
vestigatory efforts prove unsuccessful can-
not insulate a petitioner from abuse of the
writ. See Witt v. Wainwright, 755 F.2d at
1397 (insufficient to allege that evidence
was not available if it was within petition-
er’s power to elicit such evidence at time of
earlier petition); Woodard v. Hutchins,
464 U.S. 377, 379 & n. 3, 104 S.Ct. 752, 753
& n. 3, 78 L.Ed.2d 541 (1984) (per curiam)
(Powell, J., concurring, joined by four other
justices) (petitioner found to have abused
the writ when he is unable to explain why
examination providing evidence of insanity
was not conducted earlier); Antone v. Dug-
ger, 465 U.S. 200, 205 & n. 3, 206, 104 S.Ct.
962, 964 & n. 3, 965, 79 L.Ed.2d 147 (1984)
(per curiam) (haste with which first habeas
petition prepared does not require courts to
consider claims withheld from that petition
if substance could have been presented in
first petition).
[9] McCleskey places great emphasis on
the fact that the State allegedly withheld
Evans’ 21-page statement from both trial
and habeas counsel. The statement was
them had any information. Basically they had
no recollection of the circumstances regarding
how Evans came to be assigned to the jail cell
that he was assigned to or of any conversations
with the Atlanta Bureau of Police Services De-
tectives regarding Offie Evans’ assignment to
that jail cell.”
Counsel apparently made no attempt to con-
tact persons who clearly had contact with Evans
and McCleskey at the Fulton County Jail. He
testified that he did not speak to Detective Dor-
sey (mentioned by Evans in his testimony at the
890 FEDERAL REPORTER, 2d SERIES
ultimately obtained in June of
through a request pursuant to the Ge
Open Records Act, 0.C.G.A. § 50-18
It is clear, however, that the state
itself does not demonstrate the existen
a Massiah violation. At most, it wag
ply the catalyst that caused counsel to
sue the Massiakh claim more vigoroy
The key piece of evidence support;
McCleskey’s Massiah claim was the testi
mony of Worthy, who testified for the firgt
time at the second federal habeas hearing:
in July of 1987. Counsel claims that he dig
not discover Worthy until he engaged in .
“massive, indiscriminate effort to subpoeng
everyone whose name was mentioned i
any document.” McCleskey has np
presented any reason why counsel would
have been unable to contact Ulysses Wor
thy back in 1981 when the first federal
habeas petition was filed. Nor has he *
shown that a more extensive effort at that
time to track down persons with informa-
tion as to what transpired in the county jail
during the summer of 1978 would not have
turned up Worthy. A petitioner and his
counsel may not circumvent the abuse of
the writ doctrine by failing to follow
through with an investigation and then la-
ter asserting that the claim could not have
succeeded earlier on the facts as then
known. It will only be possible to avoid
piecemeal litigation if counsel is required to
make a thorough investigation of the facts
at the time of petitioner’s first petition for
habeas corpus.!®
C. Ends of Justice
Having found that McCleskey abused the
writ by deliberately abandoning his Massi-
ah claim, we must now decide whether the
“ends of justice” require consideration of
first state habeas hearing), to Detectives Jowers
or Harris (officers who had investigated the
McCleskey case), or Deputy Hamilton (who tes-
tified at trial regarding his contact with Mr.
Evans).
13. We also note that in 1981 there apparently
still existed records listing each prisoner's cell
assignment and any visitation of prisoners by
outsiders. These records, which would have
corroborated or disproved Worthy's testimony,
have since been destroyed.
ER, 2d SERIES
mately obtained in : ugh a request Bn ml 1987 n Records Act, 0.C.G.A. § 50-18-76,
s clear, however, that the sta 2%),
does not demonstrate the exis i at
18siah violation. At m vence of 8 satalyst that caused
he Massiah claim more vi :
| key piece of Erion ee oi
eskey’s Massiak claim was the. i v of Worthy, who testified for the pi at the second federal habeas he at
y of 1987. Counsel claims that ra scover Worthy until he engaged ; 4
sive, indiscriminate effort to sub We.
me whose name was meno
document.” McCleskey has —
ted any reason why counsel would
‘een unable to contact Ulysses W
wick In 1981 when the first folong
s petition was filed. Nor has =
that a more extensive effort at or > track down persons with informa-
to what transpired in the county jail the Summer of 1978 would not haye
up Worthy. A petitioner and hig
‘may not circumvent the abuse of
it, doctrine by failing to follow
1 with an investigation and then la-
rting that the claim could not have
4 earlier on the facts as then
I will only be possible to avoid
ul litigation if counsel is required to
thorough investigation of the facts
hi feationers first petition for
counsel to pus. cd
'of Justice
. found that McCleskey abused the
eliberately abandoning his Massi-
we must now decide whether the
Justice require consideration of
habeas h ing), to Detecti : as hy 4 ives J
. (officers who had TVestigared. oo v case), or Deputy Hamilton ( YX ) / who tes- ‘rial regarding his contact with Mr.
; Bote that in 1981 there apparently a Soords listing. each prisoner's cell and any visitation of prisoners by
e records, which would have
Worthy's testimony,
ost, it wag gi. :
McCLESKEY v. ZANT 351
Cite as 890 F.2d 342 (11th Cir. 1989)
pis claim on the merits." See Sanders v.
ynited States, 373 U.S. at 16-19, 83 S.Ct.
: at 1078-79. In Kuhlmann v. Wilson, the
© gupreme Court attempted to give greater
~ content to the open-ended “ends of justice”
inquiry. Its statement, however, that “the
nds of justice’ require federal courts to
entertain such petitions only where peti-
: tioner supplements his constitutional claim
© with a colorable showing of factual inno-
cence,” 477 U.S. at 454, 106 S.Ct. at 2627,
commanded only a plurality of the justices.
See Messer v. Kemp, 831 F.2d 946, 958 n.
19 (11th Cir.1987) (en banc), cert. denied,
— U.S. —, 108 S.Ct. 1586, 99 L.Ed.2d
902 (1988). Thus, the circumstances under
which ends of justice would require rehear-
ing of an otherwise abusive petition remain
unparticularized.
We find it unnecessary to more narrowly
define the circumstances in this case. For,
the instances in which ends of justice
would require a rehearing of a claim do not
include those in which a violation of a con-
stitutional right would be found to consti-
tute harmless error.!® The members of
this panel disagree as to whether the dis-
trict court was correct in finding that
McCleskey had established a Massiah viola-
tion. Pretermitting that inquiry, however,
the panel is unanimous that any violation
that may have occurred would constitute
harmless error and that the district court
erred in concluding otherwise.
D. Harmless Error
[10,11] The remedy for a Massiah vio-
lation is not an automatic reversal of a
conviction, but rather the exclusion of evi-
dence tainted by the violation of petition-
er's right to counsel. United States v.
Morrison, 449 U.S. 361, 365, 101 S.Ct. 665,
668, 66 L.Ed.2d 564 (1981). The previous
use of the tainted evidence will not result
in a reversal of a conviction if it constituted
“harmless error.” Under the harmless er-
14. The district court did not reach the “ends of
justice” inquiry as it found that McCleskey's
claim did not constitute abuse of the writ.
15. See Messer v. Kemp, 831 F.2d at 958-59:
Because we conclude, as a matter of law, that
the record in this case fails to disclose an Ake
ror doctrine, the state must “prove beyond
a reasonable doubt that the error com-
plained of did not contribute to the verdict
obtained.” Chapman v. California, 386
U.S. 18,-24, 87 S.Ct. 824, 828, 17 L.Ed.2d
705 (1967). See also, Satterwhite v. Texas,
486 U.S. 249, 108 S.Ct. 1792, 1798, 100
L.Ed.2d 284 (1988) (harmless error analysis
applied to sixth amendment violation taint-
ing evidence in sentencing phase of capital
trial); Brown v. Dugger, 831 F.2d 1547,
1554 (11th Cir.1987).
In this case, the district court held that
the error complained of could not be found
harmless because Evans’ testimony con-
cerning McCleskey’s incriminating state-
ments was critical to the State’s case. In
reaching this conclusion, the court ignored
the Eleventh Circuit's previous discussion
in McCleskey, 758 F.2d at 884-85, of the
importance of the evidence introduced
through Evans’ testimony at trial. Though
that discussion occurred in the context of
McCleskey’s Giglio claim, it clearly has
bearing on the import of Evans’ testimony
in the context of McCleskey's Massiah
claim. It is true, as petitioner argues, that
the harmless error inquiry in the case of a
Giglio claim differs from the inquiry in the
case of a Massiah violation, but this differ-
ence does not save McCleskey’s claim.
The crucial question in a Giglio claim is
whether the state’s failure to disclose its
promise of reward to a witness affected the
judgment of the jury as to the credibility of
that witness. See Giglio, 405 U.S. at 154,
92 S.Ct. at 766. In its previous opinion, the
Eleventh Circuit held that the judgment of
the jury that convicted McCleskey was not
affected by the lack of disclosure. Its
holding was based on two separate
grounds. First, it found that “Evans’ cred-
ibility was exposed to substantial impeach-
ment even without the detectives state-
ment and the inconsistent description of his
escape,” as the jury had already been made
violation, our “ends of justice” analysis need
not proceed any further. That is, we need not
address any other factors relevant to the
“ends of justice” in light of our conclusion
that no constitutional violation occurred.
i
A
p
-
352
aware of Evans’ extensive list of past con-
victions. 753 F.2d at 884. Second, and
more important for our purposes, the Elev-
enth Circuit found that, in light of all the
other evidence presented to the jury, Ev-
ans’ testimony could not “ ‘in any reason
able likelihood have affected the judgment
of the jury.’”” Id. at 885 (quoting Napue v.
Illinois, 360 U.S. 264, 271, 79 S.Ct. 11783,
1178, 3 L.Ed.2d 1217 (1959). This is pre-
cisely the finding that must be made in a
harmless error analysis under Massiah and
upon reexamination, we find no reason to
disturb this finding.
Evans was called by the State on rebut
tal to strengthen its proof that McCleskey
was the triggerman at the holdup. He
testified that McCleskey had admitted to
him that he had shot the policeman and
that McCleskey had admitted to wearing
makeup to disguise himself during the rob-
bery. He also stated that McCleskey said
he would have shot his way out even if
there had been a dozen policemen.
Turning first to Evans’ testimony re-
garding McCleskey’s admission that he was
the triggerman, we feel that the State has
met its burden of proving, beyond a reason-
able doubt, that this testimony did not con-
tribute to the verdict. First, as noted by
the en banc court, McCleskey’s codefend-
ant, Ben Wright, also testified that McCles-
key was the triggerman. Though Georgia
law requires corroboration of an accom-
plice’s testimony in felony cases, it is clear
that corroboration can be through circum-
stantial as well as direct evidence. Davis
v. State, 178 Ga.App. 760, 344 S.E.2d 730,
1732 (Ga.App.1986) (quoting Gunter v.
State, 243 Ga. 651, 655, 256 S.E.2d 341
(Ga.1979)).
The State presented a substantial
amount of circumstantial evidence.
McCleskey himself confessed to his partic-
ipation in the robbery. The officer was
killed by the man who entered and secured
the front of the store while the other three
men were in the back. McCleskey was
identified by two of the store personnel as
the robber who came in the front door.
The officer was killed by a bullet from
a 38 caliber Rossi handgun. The State
presented evidence that McCleskey had sto-
890 FEDERAL REPORTER, 2d SERIES
len a .38 caliber Rossi in a previous hold
The gun that McCleskey had stolen had
white handle. The State presented testime.
ny from an eyewitness that the robber wk
ran out the front door after the robbe
was carrying a pearl-handled pistol.
evidence not only corroborates IB
Wright's testimony, but is of sufficient
quantity to allow this court to find that any
additional testimony by Evans did not con-
tribute to the verdict. 6.
Evans’ testimony regarding McCleskey’s 3
statement that he was wearing make :
could also not have reasonably affected
jury’s determination. The en banc court
found that: Eo
Evans’ testimony that McCleskey had
made up his face corroborated the identi
fication testimony of one of the eye
witnesses. Nevertheless, this evidence:
was not crucial to the State's case. That
McCleskey was wearing makeup helps
establish he was the robber who entered
the furniture store through the front So
door. This fact had already been directly rs
testified to by McCleskey’s accomplice Er
and two eyewitnesses as well as corrobo-
rated by McCleskey’'s own confession.
That Evans’ testimony buttresses one of 1
the eyewitnesses’ identifications is rela-
tively unimportant.
753 F.2d at 885.
Finally, petitioner asserts that Evans’
testimony as to McCleskey’s statement that =
he would have been willing to shoot twelve
policemen affected the jury’s finding as to
the presence of malice and increased its
willingness to impose a sentence of death.
Once again, we find that the en banc
court's analysis of this issue demonstrates
that this testimony was not crucial to the
jury’s finding of malice murder. The court =~
wrote that:
In his closing argument, however, the
prosecutor presented to the jury three
reasons supporting a conviction for mal-
ice murder. First, he argued that the
physical evidence showed malicious in-
tent because it indicated that McCleskey
shot the police officer once in the head
and a second time in the chest as he lay
dying on the floor. Second, the prosecu-
tor asserted that McCleskey had a choice,
either to surrender or to kill the officer.
That he chose to kill indicated malice.
% 2d SERIES
38 caliber Rossi in a previous
un that McCleskey had dg, :
handle. The State presented testi, :
m.an eyewitness that the robber w *
ut the front door after the WE
arrying a pearl-handled pistol. Thiy
ice. not only corroborates
t's testimony, but is of sufficient
ity to allow this court to find that apy
onal testimony by Evans di Foo the ve ny oY ans did not cop.
ns’ testimony regarding McCl ,
ent that he was id wy
gt not have reasonably affected the
Setermimeton: The en banc court
ns’ testimony that McCleskey hag
e up his face corroborated the ident;-
ion testimony of one of the eye
esses. Nevertheless, this evidence
not crucial to the State's case. That
leskey was wearing makeup helps
blish he was the robber who entered
furniture store through the front
+. This fact had already been directly
fied to by McCleskey’s accomplice
two eyewitnesses as well as corrobo-
d by McCleskey’s own confession.
Evans’ testimony buttresses one of
eyewitnesses’ identifications is rela-
y unimportant.
2d at 885.
lly, petitioner asserts that Evans’
ony as to McCleskey’s statement that
1ld have been willing to shoot twelve
en affected the jury's finding as to
esence of malice and increased its
ness to impose a sentence of death.
again, we find that the en banc
analysis of this issue demonstrates
is testimony was not crucial to the
finding of malice murder. The court
is closing argument, however, the
scutor presented to the jury three
ons supporting a conviction for mal-
nurder. First, he argued that the
ical evidence showed malicious in-
because it indicated that McCleskey
the police officer once in the head
2 second time in the chest as he lay
g on the floor. Second, the prosecu-
sserted that McCleskey had a choice,
'r_to surrender or to kill the officer.
he chose to kill indicated malice.
PEARSON Vv. CIR.
Cite as 890 F.2d 353 (11th Cir. 1989)
Third, the prosecutor contended that
McCleskey’s statement to Evans that he
still would have shot his way out if there
had been twelve police officers showed
malice. This statement by McCleskey
was not developed at length during Ev-
ans’ testimony and was mentioned only
in passing by the prosecutor in closing
argument.
Id. at 885. In addition, the court finds no
reasonable likelihood that the jury’s imposi-
tion of the death penalty was affected by
Evans’ testimony. The prosecutor did not
introduce Evans as a wi
tencing phase of trial, nor
ans’ testimony to portray McCleskey as a
hardened criminal deserving of death, but
concentrated instead on McCleskey’s prior
tness at the sen-
did he use Ev-
convictions.®
Because evidence other than Evans’ testi
mony presented in the case presents such a
clear indication of McCleskey’s guilt, this
asonable doubt that
the jury would have convicted and sen-
as it did even without
Our determination that
any Massiah error would be harmless pre-
cludes a finding that the ends of justice
would require us to entertain McCleskey’s
court finds beyond a re
tenced McCleskey
Evans’ testimony.
claim on the merits.
CONCLUSION
The judgment of the district court grant-
ing the petition for writ of habeas corpus is
the petition is hereby denied
reversed and
as an abuse of the writ.
REVERSED.
[0 E kEY NUMBER SYSTEM
—
“
n
M
m
E
16. This case can easily be
Satterwhite v. Texas, 486
tioner cites as controlling.
psychiatrist, who ha
in violation of his sixt
fied in a separate sentencing
defendant presented a threa
continuing acts of violence.
constitutional error was no
stressed that under Texas
sentence a defendant to
distinguished from
U.S. 249, 108 S.Ct.
1792, 100 L.Ed.2d 284 (1988), a case that peti-
In Satterwhite, a
d interviewed the defendant
h amendment rights, testi-
proceeding that the
t to society through
In finding that the
t harmless, the Court
law, a jury may not
death unless it finds
James C. PEARSON, Deceased, Mildred
Pearson, Personal Representative, and
Mildred Pearson, Petitioners-Appel-
lants,
Vv.
COMMISSIONER OF INTERNAL
REVENUE, Respondent-Appellee.
No. 88-3961
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Dec. 11, 1989.
Personal representative of taxpayer's
estate petitioned Tax Court for redetermi-
nation of IRS’ deficiency decision. The Tax
Court entered judgment in favor of IRS,
and personal representative appealed. The
Court of Appeals held that IRS does not
need to mail notice of income tax deficiency
to both spouses executing joint tax return,
when IRS seeks to collect entire deficiency
from single spouse.
Affirmed.
1. Internal Revenue 4544
IRS does not need to mail notice of tax
deficiency to both spouses executing joint
income tax return, where IRS seeks to
collect entire deficiency from single spouse.
26 US.C.A. § 6212(b)2).
2. Internal Revenue 4647
Tax Court did not have power to grant
taxpayer's estate equitable relief from mo-
and would be a threat to society. Addi-
tionally, the Court found that the psychiatrist's
testimony stood out “both because of his qualifi-
cations as a medical doctor specializing in-psy-
chiatry and because of the powerful content of
his message.” Id. at — 108 S.Ct. at 1799. In
the instant case, the jury was not instructed as
to future dangerousness, and the Eleventh Cir-
cuit found, in its previous discussion of the
Giglio violation, that Evans’ testimony had al-
ready been greatly impeached by his own crimi-
nal background. 753 F.2d at 884.
lence
that the defendant would commit acts of vio-
i
|
i
§
: i
3
§
146 Ga.
verdict for the defendant on plaintiff's
count for breach of an alleged oral, express
warranty to cure the patient’s dental condi-
tion. North Ga. Production Credit Assn. v.
Vandergrift, 239 Ga. 755, 761(1); 238 S.E.2d
869 (1977). ;
The minor patient's mother’s testimony
was conclusory in nature, relating to her
understanding or comprehension of what
the defendant had meant by what he had
said to her in medical jargon relating to the
services that were to be performed by him
in return for the Tees he was to receive:
The mother’s testimony was that she was
unable at the time of her testimony to
recall, and really did not know, the medical
or dental terms in which the defendant had
described her daughter's condition but, in
essence, that he had represented to her that
he would cure her condition. She further
~ testified that the defendant had released
her daughter from treatment after stating
that “the condition for which orthodontic
treatment had been contracted had been
fully corrected.
[2,3] This court agrees with the majori-
ty of the Court of Appeals that no particu-
lar form of words is necessary to constitute
a warranty; rather, that the question is one
of the intention of the parties. Postel v.
Boykin Tool, etc. Co., 86 Ga.App. 400,
402(2}, 71 S.E.2d 783 (1952). The problem
with the plaintiff's proof, however, was per-
ceived correctly by the dissenting judges of
“the Court of Appeals. Plaintiff's proof is
that the defendant expressly promised to
correct his daughter's dental condition and
-that at the time the defendant discharged
his daughter as a patient the defendant
represented he had fully corrected the den-
tal condition he had contracted to correct.
This testimony is entirely vague as to the
‘nature of the condition to be corrected or
the services to be performed. It is impossi-
ble to ascertain from this testimony wheth-
~ er both parties to the alleged contract of
express warranty “understood and agreed
“to the same thing” Atlanta Tallow Co. v.
John W. Eshelman & Sons, 110 Ga.App. 737,
750, 140 S.E.2d 118, 127 (1964). Hence, no
enforceable contract - of express warranty
/
263 SOUTH EASTERN REPORTER, 2d SERIES
was proven and the trial court properly
directed a verdict for the defendant.
Judgment reversed.
UNDERCOFLER, P.J., JORDAN, HILL,
BOWLES and MARSHALL, JJ., and Judge
CHARLES L. WELTNER, concur.
CLARKE, J., not participating.
Ww
° £ KEY NUMBER SYSTEM
245 Ga. 108
McCLESKY
v.
The STATE.
No. 35529.
Supreme Court of Georgia.
Argued Nov. 19, 1979.
Decided Jan. 24, 1980.
Defendant was convicted in the Superi-
or Court, Fulton County, McKenzie, J., of
murder and two armed robberies, and he
appealed following his sentence to death for
the murder conviction. . The Supreme
Court, Undercofler, P. J., held that: (1)
viewing of defendant; who was seated in
jury box, immediately prior to trial by four
State's witnesses did not constitute an ille-
gal postindictment lineup nor was such
identification procedure impermissibly sug-
gestive; (2) in-court identifications of de-
fendant as robber of furniture store were
~ not tainted by police identification proce-
dures and were reliable; and (3) although
“defendant's codefendants did not receive
“death penalty, sentence of death imposed on
defendant for murder of police officer while
engaged in armed robbery, was not imposed
under influence of passion, prejudice, or any
other arbitrary factor nor excessive or dis-
proportionate to penalty imposed in similar -
cases considering the crime and the defend-
ant, particularly in light of fact that de-
fendant was the “triggerman.” :
Affirmed.
ES
trial court properly
the defendant.
P. J., JORDAN, HILL,
HALL, JJ., and Judge
NER, concur.
articipating.
TATE.
5529.
rt of Georgia.
v. 19, 1979.
in. 24, 1980.
onvicted in the Superi-
aunty, McKenzie, J., of
ed robberies, and he
s sentence to death for
tion. The Supreme
P. J., held that: (1)
it, who was seated in
prior to trial by four
not constitute an ille-
lineup nor was such
hire impermissibly sug-
identifications of de-
furniture store were
identification proce-
kble; and (3) although
Hants did not receive
ce of death imposed on
F of police officer while
bbery, was not imposed
sion, prejudice, or any
br hor excessive or dis-
alty imposed in similar
crime and the defend-
light of fact that de-
ggerman.”
McCLESKY v. STATE Ga. 147
Cite as, Ga., 263 S.E.2d 146
1. Constitutional Law &=250.3(1), 270(1)
Death penalty does not violate due
process or equal protection provisions of
State and Federal Constitutions. Const.
art. 1, §§ 1, par. 1, 2, par. 8; U.S.C.A.Const.
Amend. 14.
9. Criminal Law ¢=339.8(2)
Viewing of defendant, who was seated
in jury box, immediately prior to trial by
four State's witnesses did not constitute an
illegal postindictment lineup nor was such
identification procedure impermissibly sug-
gestive.
3. Criminal Law &=339.10(1) San
In-court identifications of defendant as
robber of furniture store were not tainted
by police identification procedures and were
reliable and therefore admissible.
4. Criminal Law &=519(1) ;
Defendant’s confession was freely and
voluntarily given.
5. Criminal Law &=627.6(1)
: Although a defendant in a criminal
case has no right to inspect prosecutor's file,
district attorney upon proper motion may
be required to disclose evidence that might
be helpful to defendant if such evidence is
~ so important that failure to disclose pre-
vented defendant from receiving a constitu-
tionally guaranteed fair trial.
6. Criminal Law &=1166(1)-
-- Defendant was not prejudiced by pros-
ecutor’s failure to disclose statement of in-
ate to effect that defendant told him he
had killed victim.
7. Criminal Law «=1166(1) -
Defendant was not prejudiced by pros-
ecutor’s failure to inform -defense counsel
- that State's witness would admit she -per-
jured herself at commitment hearing by
failing to identify defendant and that such
witness would testify that defendant was
‘perpetrator of armed robbery. >
8. Criminal Law =371(4, 8, 12), 3724, 14)
~ In-prosecution of defendant for armed
robbery and murder, evidence establishing
defendant's participation in two prior arm-
- ed robberies of a similar nature and estab-
lishing that defendant obtained a gun of
same caliber and make during one of the
robberies as that of murder weapon were
properly admitted to show defendant's
scheme, motive, intent or design. Code;
§ 38-202.
9. Criminal Law &=983, 1206(2)
Although defendant's codefendants did
not receive death penalty, sentence of death
imposed on defendant for murder of police
officer while engaged in armed- robbery was
not imposed under influence of passion,
prejudice, or any other arbitrary factor nor
was sentence excessive or disproportionate
to penalty imposed in similar cases consider-
ing the crime and the defendant, particular-
ly in light of fact that defendant was the
“triggerman.” Code, §§ 27-2534.1(b)2, 8),
27-2537(c) 1-3).
John Milton Turner, Jr., Atlanta, for ap-
pellant.
Lewis R. Slaton, Dist. Atty. H. Allen
Moye, Asst. Dist. Atty., Arthur K. Bolton,
Atty. Gen., Nicholas G. Dumich, Staff Asst.
Atty. Gen. for appellee.
- UNDERCOFLER, Presiding Justice.
Warren McClesky appeals his convictions
of murder and two armed robberies. He
was sentenced to death for murder and life
-imprisonment for each armed robbery, all
sentences to run consecutively.
Summary of Facts
From the evidence presented at trial, the
jury was authorized to find the following
facts:
On the morning of May 183, 1978, appel-
lant, using his car, picked up Ben Wright,
‘Bernard Dupree and David Burney. All
four had planned to rob a jewelry store in
Marietta that day. After Ben Wright went
into the store to check it out, they decided -
not to rob it. All four then rode around.
Marietta looking for another place to rob
but couldn't find anything suitable. They
drove to Atlanta and decided on the Dixie
Furniture Store as a target. Each of the
148 Ga.
four was armed. Appellant had a 3% cali-
ber Rossi nickel-plated revolver, Ben
Wright carried a sawed-off shotgun, and
the two others had blue steel pistols. Ap-
_pellant parked his car up the street from
the Furniture Store, entered the store, and
“cased” it. After appellant returned to the
car, the robbery was planned. Executing
the plan, appellant entered the front of the -
store and the other three came through the
rear by the loading dock. Appellant se-
cured the front of the store. The others
rounded up the employees in the rear and
- began to tie them up with tape. All the
employees were forced to lie on the floor.
The manager was forced at gunpoint to
turn over the store receipts, his watch and
six dollars. George Malcom, an employee,
had a pistol taken from him at gunpoint.
Before all the employees were tied up, Offi-
‘cer Frank Schlatt, answering a silent alarm,
pulled his patrol car up in front of the
building. He entered the front door and
proceeded approximately fifteen feet down
the center isle where he was shot twice,
once in the face and once in the chest. The
chest shot glanced off a pocket lighter and
lodged in a sofa. That bullet was recov-
ered. The head wound was fatal. The
robbers fled. Sometime later, appellant
was arrested in Cobb County in connection
with another armed robbery. He confessed
-to the Dixie ‘Furniture Store robbery, but -
denied the shooting. Ballistics showed that
Officer Schlatt had been shot by a .38 cali-
ber Rossi revolver. The weapon was never
- _recovered but it was shown that the appel-
lant had stolen such a revolver in the rob-
bery of a Red Dot grocery store two months
- earlier. Appellant admitted the shooting to
~ a co-defendant and also to a jail inmate in
the cell next to his both of whom testified
for the state. Eg .
~ Enumerations of Error
[1] 1. In his first enumeration of error,
appellant contends the death penalty vio-
- lates the due process and equal protection
provisions of the state and federal constitu-
tions because prosecutorial discretion per-
mits its discriminatory application. Appel-
lant's argument is without merit. Gregg v.
263 SOUTH EASTERN REPORTER, 2d SERIES
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976); Moore v. State, 240 Ga.
807, 243 S.E.2d 1 (1978), cert. den., 439 U.S.
903, 99 S.Ct. 268, 58 L.Ed.2d 249 (1978).
[2] 2. Appellant's second enumeration
of error complains that the prosecutor con-
ducted an illegal post-indictment lineup im-
mediately prior to trial without the knowl-
edge, consent, or presence of defense coun-
sel. However, a review of the record does
not support this contention. The record
shows that four witnesses immediately pri-
or to the call of the case saw the appellant
and four other persons sitting in the jury
box guarded by deputy sheriffs. Each of
these witnesses testified that they recog-
‘nized the appellant as one of the robbers at
the time they saw him seated in the jury
box. There is no indication that the wit-
nesses were asked to view the men seated
in the jury box and see if they recognized
anyone. No one pointed out the appellant
as the defendant in the case, rather it is
apparent from the witnesses’ testimony
that each recognized the appellant from
having viewed him at the scene of the re-
spective robberies. Therefore, no illegal
post-indictment lineup occurred. See Pra-
ter v. State, 148 Ga.App. 831, 253 S.E.2d 223
(1979).
Appellant argues further that the four
witnesses viewing him in the jury box as he
“awaited trial along with pofice identifica--
tion procedures impermissibly tainted the
witnesses” in-court identification of the ap-
pellant.
The threshold inquiry is whether the
identification procedure was impermissibly
suggestive. Only if it was, need the court
consider the second question: whether
there was a substantial likelihood of irrepa-
rable ‘misidentification. .Gravitt v. State,
- 239 Ga. 709, 239 S.E.2d 149 (1977); Heard v.
State, 149 Ga.App. 92, 253 S.E.2d 454 (1979).
The chance viewing of the appellant prior
to trial as he sat with others was no more
suggestive than seeing him in-the hall as he
and other defendants are being brought in
for trial, or seeing him seated at the de-
fense table as each witness comes in to
McCLESKY v. STATE Ga. 149
Cite as, Ga., 263 S.E.2d 146
testify. We conclude that the chance view-
ing of the appellant immediately prior to
trial by four of the state's witnesses was
not impermissibly suggestive. Alse, we
find the identifications were not tainted by
- police identification procedures. Neverthe-
less, we have inquired into and find the
identifications reliable.
96 S.Ct. 2909, 49
re v. State, 240 Ga.
cert. den., 439 U.S.
Ed.2d 249 (1978).
cond enumeration
the prosecutor cen-
dictment lineup im-
without the knowl-
e of defense coun-
of the record does
htion. The record
es immediately pri- -
e saw the appellant
sitting in the jury
sheriffs. Each of
d that they recog-
e of the robbers at
seated in the jury
ation that the wit- -
ew the men seated
b if they recognized
d out the appellant
e case, rather it is
itnesses’ testimony
he appellant from
he scene of the re-
erefore, no illegal
occurred. See Pra-
. 831, 253 S.E.2d 223
[3] Classie Barnwell, an employee of the
Dixie Furniture Store testified that the ap-
_pellant was the man who came in the front
door and participated in the robbery. This
witness had been -exposed to photographic
lineups on two occasions and had seen the
appellant's picture in the paper. However,
she testified that she did not recognize any
pictures as being the robbery suspect.
There is no evidence that the appellant's
picture was in any of the photographic line-
ups. She testified further that although
the newspaper picture looked familiar, it
was “vague” and she could not recognize
the appellant from it. She was able to
identify the appellant in person and was
certain of her in-court identification.
There is no evidence that the photographic
identification procedure used by the police
with this witness was impermissibly sugges-
tive. - The newspaper picture may have
_been suggestive. However, the question is
whether under the “totality of the circum-
stances” the witness was irrevocably com-
‘mitted to the desired identification bythe
identification procedure used. Heyward v.
State, 236 Ga. 526, 224 S.E.2d 383 (1976).
Here the victim based her in-court identifi-
cation testimony upon her observation of
the appellant for some five to ten minutes
during the robbery. Her identification of
_ the appellant had an independent basis oth-
_er than the viewing of a newspaper photo-
graph that only looked familiar to her.
- Burrell v. State, 239 Ga. 792, 239 S.E.2d 11
(1977).
testimony was reliable and admissible.
ther that the four
n the jury box as he
h police identifica-
hissibly tainted the
tification of the ap-
ry is whether the
. was impermissibly
was, need the court-
question: whether
likelihood of irrepa-
Gravitt v. State,
149 (1977); Heard v.
53 S.E.2d 454 (1979).
f the appellant prior
others was no more.
im in the hall as he -
re being brought in
n seated at the de-
bitness comes in to
David Ross viewed the appellant in a
series of black and white photographs and
another series of eolor photographs. He
was able to identify the appellant from the
color photographs but not from the black
and white. There is no showing that the
See
In our opinion, her identification
array of photographs exhibited to this wit-
ness was impermissibly suggestive. Hey-
ward v. State, supra. This witness saw but
did not recognize the picture of the appel-
lant published in the newspaper. He was
also one of four witnesses who saw the
appellant in the jury box immediately prior
to trial. He testified he recognized the
appellant from having seen him as he
walked past him immediately prior to the
robbery of the Red Dot grocery store. His
in-court identification of the appellant had
an independent basis other than the photo-
graphs and was properly submitted to the
jury. See Burrell v. State, supra.
Two other witnesses made in-court identi-
fications of the appellant after identifying
him from a photographic lineup. However,
each witness testified that the identifica-
tions were based on the presence of the
appellant at the robbery scene. Burrell v.
State, supra. Their testimony was properly
submitted to the jury.
We note that other evidence also estab-
lishes the reliability of this identification
testimony, particularly a co-defendant’s tes- -
timony and the appellant's own statement.
Appellant's related enumerations of error
(e. g., the trial court’s overruling of appel-
lant’s motion for new trial), are without
merit. :
[41 3. In his third ¢humeration of er-
ror, appellant argues that the trial court
~ erred in overruling his motion to suppress
his statement because it was not given free-
ly and voluntarily. We find no error in the
trial court’s determination that the confes-
sion was given freely and voluntarily.
"Johnson v. State, 233 Ga. 58, 209 S.E.2d-629
(1974), Amadeo v. State, 243 Ga. 627, 255
S.E.2d 718 (1979); Burney v. State, 244 Ge. ;
33, 257 SE.2d 543 (1979).
4. Appellant’s fourth enumeration of er-
ror urges that the trial court erred in allow-
ing evidence of appellant's oral statement
admitting the murder made to an inmate in
the next cell, because the prosecutor had
deliberately withheld such statement in an-
swering a Brady motion.
a
a
a
s
po
= g
E
M
E
R
|
A
R
R
ER
a
y
a
S
S
150 Ga. 263 SOUTH EASTERN REPORTER, 2d SERIES
[5,6] The appellant confided to a fellow
inmate that he had shot the police officer.
The inmate's name and address was includ-
ed in the list of witnesses furrished to
defense counsel. He testified for the state
and was subjected to a thorough cross ex-
amination. Hamby v. State, 243 Ga. 339,
253 S.E2d 759 (1979). The prosecutor
showed the defense counsel his file, but did
not furnish this witness's statement. The
defendant ina criminal case has no right to
inspect the prosecutor’s file, but the district
attorney upon proper motion may be re-
quired to disclose evidence that might be
helpful to the defendant. Strong v. State,
232 Ga. 294, 206 S.E.2d 461 (1974) and cits.
The test is whether the evidence was so
important that the failure to disclose pre-
vented the accused from receiving a consti-
tutionally guaranteed fair trial. Carter v.
State, 237 Ga. 617, 239 S.E.2d 411 (1976).
Here, the evidence which was not disclosed
prior to trial would not exculpate the appel-
lant, nor would it lessen his criminal liabili-
ty. The appellant has not shown material
prejudice and was not denied a fair trial
under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). The evi-
dence he sought to inspect was introduced
to the jury in its entirety, and a favorable
inference, if any, could be drawn-by the
jury. Tarpkin v. State, 236 Ga. 67, 222
S.E2d 364 (1976). Appellant's argument
that the evidence was needed in order to
prepare a proper defense or impeach other
witnesses has no merit because the evidence
requested was statements made by the ap-
pellant himself. Tarpkin v. State, supra.
[7] 5. In his fifth enumeration of er-
ror, the appellant complains that he was
denied due process because the prosecutor
deliberately failed to disclose impeaching -
evidence concerning the testimony of Ma-
- mie Thomas. Mamie Thomas was an em-
ployee of the Dixie Furniture Store and
was present during the robbery. She testi-
fied at the appellant's commitment hearing
that the appellant was not the perpetrator.
After discussing her testimony with her
employer and a detective she admitted her
testimony at the commitment hearing was
false and that she failed to identify the
appellant at that time out of fear for her
personal safety. At some time prior to the
trial she elected to come forward and tell
the truth. At trial, the prosecutor called
this witness without informing the defense
counsel that she would admit she perjured
herself at the commitment hearing and that
she would testify that the appellant was the
perpetrator.-
We point out that this is not an instance
of the prosecutor failing to correct testimo-
ny knowing it to be false. See Napue v.
Ilinois, 360 U.S. 264, 79 S.Ct. 1173, 3
L.Ed.2d 1217 (1959). The prior impeaching
statement was put before the jury on direct _
examination by the prosecutor and there- -
fore any favorable evidence was- made
available to the jury. Tarpkin v. State,
supra. Defense counsel knew of the prior
impeaching statement and used it to
impeach the witness during cross examina-
tion. See Rini v. State, 235 Ga. 60, 218
S.E.2d 811 (1975). Appellant has failed to
show material prejudice and therefore his
fifth enumeration of error is without merit.
{8] 6. Appellant argues in his last enu-
meration of error that the trial court erred
in admitting evidence of appellant’s prior
criminal acts. We do not agree. The state
introduced evidence that the defendant had
participated in two prior armed. robberies.
At one of these robberies, thé robbery of
the Red Dot grocery, the appellant obtained
a gun of the same caliber and make as that
which killed Officer Schlatt. These crimes
were committed within two months prior to
the case under review. Positive identifica-
tion of the appellant was made as to all the
crimes. There was evidence showing simi-
lar circumstances common to all three
“crimes from which the jury could have de-
- termined that the appellant participated in
a continuing scheme to commit multiple
armed robberies in order to support himself -
There was a logical connection between the
crime being reviewed and the prior crimes.
Collins v. -State, 239 Ga. 45, 235 S.E.2d 523
(1977). The conditions of admissibility set
forth in French v. State, 237 Ga. 620, 229
S.E.2d 410 (1976) were satisfied. The trial oe.
ES
e out of fear for her
ome time prior to the
me forward and tell
the prosecutor called
informing the defense
1d admit she perjured
ment hearing and that
the appellant was the 2
this is not an instance
ing to correct testimo-
false. See Napue v.
64, 79 S.Ct. 1173, 3
The prior impeaching
fore the jury on direct
prosecutor and there-
evidence was made
Tarpkin v. State,
sel knew of the prior
nt and used it to
during cross examina-
Ptate, 235 Ga. 60, 218
hppellant has failed to
dice and therefore his
error is without merit.
argues in his last enu-
ht the trial court erred
e of appellant’s prior
not agree. The state
that the defendant had
prior armed robberies.
lberies, the robbery of
the appellant obtained
liber and make as that
Schlatt: These crimes
in two months prior to
w. Positive identifica-
was made as to all the
evidence showing simi-
ommon to all three
he jury could have de-
pellant participated in
e to commit multiple
der to support himself.
onnection between the
d and the prior crimes.
Ga. 45, 235 S.E.2d 523
bns of admissibility set
tate, 237 Ga. 620, 229
re satisfied. The trial
McCLESKY v. STATE Ga. 151
Cite as, Ga., 263 S.E.2d 146
court charged the jury as to the limited
purpose for which these similar crimes were
being admitted—that is to show the appel-
lant’s scheme, motive, intent or design—a
purpose for which our decisions recognize
an exception to the general rule against
admissibility of evidence of other criminal
-activity. Code Ann. § 38-202; Clemson v.
State, 239 Ga. 357, 236 S.E.2d 663 (1977);
Thomas v. State, 239 Ga. 734, 238 S.E.2d
888 (1977); Booker v. State, 242 Ga. 7783,
251 S.E.2d 518 (1979); "Burgess v. State, 242
Ga. 889, 252 S.E.2d 391 (1979); Hamilton v.
State, 239 Ga. 72, 235 S.E.2d 515 (1977).
) Sentence Review
The jury found the following aggravating
circumstances and sentenced the appellant
to death for murder.
1. The offense of murder was commit-
ted while the offender was engaged in the
commission of another capital felony. Code
Ann. § 27-2534.1(b)2).
2. The offense of murder was commit-
ted against any police officer, corrections
employee or fireman while engaged in the
performance of his official duties. Code
Ann. § 27-2534.1(b)8).
[9] As required by Ga.L.1973, p. 159 et
seq. (Code Ann. § 27-2537(c)(1-3)), we have
reviewed the death sentence in this case.
We have considered the aggravating -cir-
cumstances found by the jury, the evidence
concerning the crime, and the defendant
pursuant to the mandate of the statute.
We conclude - that the sentence of death
~ imposed in this case was not imposed under
‘the influence of passion, prejudice, or any
other arbitrary factor.
We find that the evidence factually sub-
stantiates and supports the finding of the
aggravating circumstances, the finding of
guilt, and the sentence of death by a ration-
al trier of fact beyond a reasonable doubt.
_ Jackson v. Virginia, 443 U.S. 807, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). .
Appellant's co-defendant, David Burney,
was sentenced to life imprisonment while
another co-defendant received a twenty-
year sentence. (See Burney v. State, 244
Ga. 33, 257 S.E.2d 543 (1979)). The question
is presented whether appellant's sentence is
disproportionate considering the crime and
the defendant in light of the lesser sen-
tences imposed on the co-defendants.
There is not a simplistic rule that a co-de-
fendant may not be sentenced to death
when another co-defendant receives a lesser
sentence. Collins v. State, 243 Ga. 291, 253
S.E2d 729 (1979). Each case is evaluated
on its unique factual circumstance.
We find distinctions between appellant's
case and the-cases of the other co-defend-
ants. First, the appellant was the actual
perpetrator of the murder, whereas the oth-
er co-defendants were not, and in fact were
not even in the immediate area of the kill-
ing. Second, one defendant co-operated
with the authorities and testified against
his co-defendants. See Baker v. St tate, 243
Ga. 710, 257 S.E.2d 192 (1979). Juries under
similar circumstances have sentenced “trig-
german” to death while the same penalty
has not been imposed on co-defendants.
_ These cases have been affirmed by this
court. Bowden v. State, 239 Ga. 821, 238
S.E.2d 905 (1977); Pulliam v. State, 236 Ga.
460, 224 S.E2d 8 (1976); Dobbs v. State,
236 Ga. 427, 224 S.E.2d 3 (1976); Ross v.
State, 233. Ga. 361, 211 S.E2d 356 (1974).
We find that appellant's sentence to
death is not excessive or disproportionate to
the penalty imposed fn the cases of his
- co-defendants.
We have thoroughly reviewed the in-
structions of the trial court during the sen-
tencing phase of the trial and find that the
charge was not subject to the defects dealt
with in Fleming v. State, 240 Ga. 142, 240
S.E.2d 37 (1978), and Hawes v. State, 240
Ga. 327, 240 S.E.2d 833 (1978). -
In reviewing the death penalty in this
case, we have considered the cases appealed
to this court sinee January 1, 1970, in which
a death or life sentence was imposed. We
find that the following similar cases listed
in the appendix support affirmance of the :
death penalty. 2
This was a murder of a police officer,
committed while the appellant was engaged
‘
:
i
E
E
3
8
B
R
P
E
152 Ga.
in an armed robbery. Appellants sentence
to death for murder is not excessive or
disproportionate to the penalty imposed in
similar cases considering the crime and the
defendant.
Judgment affirmed.
NICHOLS, C. J., JORDAN, HILL,
BOWLES and MARSHALL, JJ., and Judge
CHARLES L. WELTNER, concur. :
CLARKE, J., not participating.
APPENDIX.
_ Johnson v. State, 226 Ga. 378, 174 S.E.2d
902 (1970); Callahan v. State, 229 Ga. 737,
194 S.E.2d 431 (1972); Whitlock v. State,
230 Ga. 700, 198 S.E.2d 865 (1973); Bennett
v. State, 231 Ga. 458, 202 S.E.2d 99 (1973);
Ross v. State, 233 Ga. 361, 211 S.E.2d 356
(1974); Dobbs v. State, 236 Ga. 427, 224
S.E.2d 3 (1976); Pulliam v. State, 236 Ga.
460, 224 S.E.2d 8 (1976); Spencer v. State,
236 Ga. 697, 224 S.E.2d 910 (1976); Bowden
~ v. State, 239 Ga. 821, 238 S.E.2d 905 (1977);
Fleming v. State, 240 Ga. 142, 240 S.E.2d 37
(1977); 243 Ga. 120, 252 S.E.2d 609 (1979);
~ Willis v. State, 243 Ga. 185, 253 S.E.2d 70
(1979); Jones v. State, 243 Ga. 820, 256
S.E.2d 907 (1979); - Collier v. State, 244 Ga.
553, 261 S.E.2d 364 (1979).
Ry
° £ KEY.NUMBER SYSTEM
27 ;
245 Ga. 117.
WASHINGTON
v 5
~The STATE.
No. 35537.
Supreme Court of Georgia.
Submitted Oct. 12, 1979.
Decided Jan. 24, 1980.
Defendant was convicted in the Chat-
ham Superior Court, Cheatham, J., of mal- -
'
263 SOUTH EASTERN REPORTER, 2d SERIES
ice murder and three counts of aggravated
assault, and defendant appealed. The Su-
preme Court, Hill, J., held that: (1) trial
court properly refused to charge jury on
self-defense and involuntary manslaughter;
(2) trial judge did not abuse his discretion in
denying defendant’s -motion for mistrial;
and (3) it was not reversible error to permit
psychiatrist to testify concerning problems
of insane persons being allowed early re-
lease from mental hospital and inadequacy
of state law in keeping insane defendants
confined. : Ha
Judgment affirmed.
1. Homicide &=111
Where police officers investigating
shooting incident locate person suspected of
shooting, and suspect threatens to kill offi-
cers, suspect cannot withdraw into house,
shoot and kill one of officers who enters
thereafter and then claim self-defense, par-
ticularly where deceased officer did not en-
ter the house. Code, §§ 26-902(a), 26-903.
2. Homicide e101
Trespass amounts only to misdemeanor
and does not justify killing trespasser.
Code, § 26-903.
3, Homicide s=111
Mere fact that arrest by police officer
~ may be unlawful, without more, does not
authorize killing of arresting officer.
4. Homicide &=300(7), 309(6)
Trial court properly refused to charge
jury on self-defense or ‘involuntary man-
slaughter where defendant, whom police lo-
cated as suspect in shooting incident in resi-
“dential area, threatened to kill police offi-
cers before he actually killed one of them.
5. Criminal Law &=722%
Statement made by prosecutor in clos-
ing argument that “Enough people have
- died” did not place defendant's character in
issue by inferring that defendant had killed
someone prior to murder for which he was
on trial; hence, trial judge did not abuse its
discretion in denyingedefendant’s motion
for mistrial. ;
real
‘orce
118,
iple of the trouble that comes when a
ral principle is carried to the limit of its
gic, rather than to the limit of its morality.
nis idea of an equitable interest in the pur-
‘haser is capable of a very confusing expres-
ion. The whole doctrine can be expressed
w saying that, in equity, the purchaser is
wner of the land, and the vendor is owner
of the purchase price. The vendor's interest,
then, can be thought of as personal property
{the purchase price) rather than real prop-
ty (the land). Or, in other words, the
and is “converted” to personalty in equity.
Eo» p .gity (1
Trine of eallitanie converinn ther LLANT UL cUUiia ull onversion, then,
‘does not stop with a recognition that the
n equitable interest in the e a
plc Hand. It goes on to characterize his interest
v" 188 realty and to characterize the interest
f- | of the vendor as personalty. And, for several
it | significant purposes, the respective interests
¢ Will be treated in accord with this character-
zation. For example, if A, having con-
Tacted to sell Blackacre to B, dies, how is his
and to be administered—as personalty or as
fealty? The answer is, there was an equit-
able conversion, the land is in the eyes of
®quity merely personalty, and it may be ad-
Ministered as such. This might affect not
only various questions of administration, but
also questions of parties proper to bring suits
‘garding it.9
#2 There are other effects of equitable con-
a they could be extended as far as
ye han between personalty and realty
olin ect legal relations. There are also
a methods of causing an equitable con-
rsion, for example by a direction in a will
“ry has bo
od en burned while in the hands of the
Urehaser yf . ee § 9.4 below.
4 He OOlox v's ho er 7
amy, OO v. Feeney, 52 NJ.Xq. 493, 1260 A. 172
ie A
2% whe dies, ¢ here the purchaser rather than vendor
or ey ie :
thepe dre example, Fricky problems arise where
ties, and JoInt tenants, or tenants by the entire-
48 to dower,
2.3 SUBSTANTIVE RULES DEVELOPED 41
to sell land. The important characteristic
is that the arrangement for sale be one en-
forceable specifically in equity, so that some
taker.
The points to be made here are more lim-
ited. First, equitable conversion has pro-
cedural and remedial effects, as any substan-
tive rule does, but it is nevertheless substan-
tive in nature: it creates and enforces rights
and duties that did not otherwise exist. Sec-
ond, it does so in the same basic mode equi-
ty used in the trust and mortgage cases:
it anticipates that a personal order against
the defendant will be made to enforce his
duties, and then treats that anticipation as
an existing ownership in equity. But there
are two new things here. One is that equity
has now acquired the capacity for general-
izing its moral ideals into technical prin-
ciples, and a duty to convey in the future has
become something far removed from any
moral principle— a “conversion” of realty to
personalty, without too much regard to the
actual justice of the particular case. The
second is related: equity is resolving prob-
lems that have little or nothing to do with
the ideals it began with. There is loss in the
illustrative case, but there is no breach of
confidence, bad faith or even harshness.
Thus substantive equity had the capacity for
developing its technical forms as well as
law.
Estoppel and Similar Conceptions
A final illustration of a purely substantive
equity is the estoppel concept and several
close relations. This marks a considerable
departure from the materials just discussed,
because estoppel does not necessarily involve
any form of equitable ownership. The word
means simply that someone is ‘‘stopped”
from claiming or saying something; usually
he is stopped from saying the true facts or
claiming a lawful claim, and usually this is
J
a
a
42
because of some prior inconsistent statement
or activity.
There were several kinds of estoppels
recognized at law—by record or by deed,
and by certain res judicata doctrines. Such
estoppels do not necessarily have any partic-
ularly ethical content. They are based on a
policy of making certain recorded trans-
actions final and conclusive, and they have
their own collection of closely structured
rules.
Equitable estoppel is a different matter: it
is neither limited to a particular factual sit-
uation, nor structured by many specific
rules, and it is based on ethical principle,
though in some states it is not applied
against governmental units.!! An illustra-
tion can be quickly posed. X begins building
a garage while N, a neighbor, stands by
watching. N makes no objection, but when
X completes the job, N says politely, “I think
you have built the garage on my land.” He
then orders a survey and finds that it is in-
deed so. N then sues in equity to force re-
moval of the offending structure. Almost
certainly relief will be denied for one reason
or another.’ Among the appropriate rea-
sons for denying relief is that he is estopped
from asserting the true location of the lot
line, because his conduct (including
here) misled X, and that if N is allowed to
assert the truth now, this will combine with
his earlier inconsistent conduct to cause
harm to X.13
An estoppel case like this has three impor-
tant elements. The actor, who usually must
have knowledge of the true facts, communi-
11. E. g, Dade County v. Bengis Associates, Inc,
257 So.: 2d 201 (Fla. APD. 1972) (county not estopped
to enfo nee regulating size
silence
ce zoning ordina of signe,
divisions therao? are not ordinarily subject to es-
toppel).
12. Even if N never knew of the activity and could
not be estopped, courts might deny relief on a bal-
ancing of hardships. See § 5.6 below.
13. See Annot., 28 A.L.R.2d 679 (1933).
EQUITY AND EQUITABLE REMEDIES
Ch. 2
cates something in isleading way, either
by words, conduct or silence. The other re-
lies upon that communication. And the oth-
er would be harmed materially if the actor
is later permitted to assert any claim incon-
istent with his earier conduct.
—
Discussions of “estoppel often mention
fraud, and sometimes courts define estoppel
to include a number of the elements of ac-
tionable deceit. Perhaps this is especially
so where estoppel is asserted to negate the
statute of frauds defense.!* However, estop-
pel is not actionable fraud and it is not treat-
ed like actionable fraud. There is usually no
need for scienter, an intent to deceive, in’
Furthermore, f
Bh :
estoppel is, according to the usual statement,
estoppel cases, for example.
a shield, not a sword. It does not furnish a
basis for damages claims, but a defense
against the claim of the stopped party.
Nor is estoppel regarded as necessarily in-
volving any promise in the conventional
sense. It is true that the neighbor’s conduct
in watching the building of the garage looks
like a pretty good assurance that he will not
ask that it be removed later, but it is more
conventionally regarded, perhaps, as an im-
plied assurance that the existing lot line falls
on the proper side of the garage rather than
as any promise about future intentions.
There are, of course, estoppels having
promissory elements. Some of these qualify
as promissory estoppel cases in the sense that
detrimental reliance on one side will suffice
as “consideration.” 15 In other instances, the
promissory elements may be more attenu-
ated, and may not involve any substitute for
consideration or any contract at all. The in-
surance adjuster with the
r_.
who negotiates
Qiliiiii 10 G DT LUTLTIL (lia iliid QO JSR ird~ BS, 2
tiff into a fulve sense of security so that he
fails to file suit before the statute of limita-
14. See § 13.2 below.
15. See Restatement of Contracts § 90 (1932).
i
!
rons has run, and this may work as an estop-
gel against the insurance company.’®* Such
|; case involves a promissory element in the
{ {imited sense that the adjuster’s conduct does
rot operate to mislead about a present fact;
2% |t operates to mislead about future intended
= | .onduct, specifically it operates to make the
plaintiff believe that the insurer will not
raise the statute of limitations defense. But
{ulling is not necessarily promising, and even
f the insurance company has made no en-
jorceable promise, it may be estopped in
t Luch a case.
misleading way, ei he ]
silence. The other §§
nication. And the off
issert any claim ince
r conduct. :
haps this is especial
asserted to negate the
nse.'* However, estg]
raud and it is not t Finally it must be said that estoppel is not
id. There is usally »as€d on restitutionary notions of unjust en-
intent to deceive, = | icAment Tr other words, a person may be
xample. Furtherm “stoped, even though he has received no par-
to the usual Staten Hicular benefit from the transaction or asser-
It does not furnisig tion. The landowner who approves his neigh-
claims, but a defen or’s garage building might well be estopped
the stopped party. rom asserting that it was built partly over
the lot line, even though he has gained noth-
ng either by his original approval or the
the neighbor’s conduubsequent erection of the building. Estop-
ling of the garage look pel has at times been defined much more nar-
surance that he will nffowly than this, to apply only where the es-
ed later, but it is mas fopped person has received some sort of bene-
led, perhaps, as an in flit. But this merely confuses estoppel with
he existing lot line fallginjust enrichment, which is an independent
the garage rather than round for relief, and not necessarily a de-
future intentions. & wali one.
arded as necessarily i
e in the conventions
rse, estoppels hav ing| Several notions operate quite a bit like the
Some of these qualify] rotion_of estoppel. One of these js the J10-
)] cases in the sense that ion of waiver. This is an intentional, volun-
¥ ary, and understanding relinquishment of a on one side will suffice
In other instances, nown right.!” In the view of some authori-
may be nore alent . See Shinabarger v. United Aircraft Corp., 381
volve any substitute for| p oq 808 (24 cir. 1967) (speaking of promissory es-
contract at all. The in-| toppel based on insurer's promises to pay, but also
: : based on its other negotiation activity: not based
0 negotiates with the on any explicit promise to waive the statute of
ent may “ull” a plain limitations). See Annot., 39 A.L.R.3d 127 (1971).
» of security so that he”. E. g,
on
) >
1g
-
=
Es Bra
na
‘neson v. Koerber, 82 ANE 347,
8 § LE a. 3 +1 x bl Fas ris]
ud relinquishment of a known right or
“ich anor as WaPTaILS an inference of the relin-
quishment.” But issuance of a building permit
for construction on land where the city had a right Contracts § 90 (1932).
§ 2.3 SUBSTANTIVE RULES DEVELOPED 43
ties, a waiver must sometimes be supported
by valuable consideration, but not always.!®
Reliance upon the waiver is not necessary to
make it effective, In other words, the policy
of giving effect to a waiver is the policy of
stability and conclusiveness. If X waives his
rights, the doctrine of waiver tells others that
they may proceed to order their own affairs
with the certainty that the rights were in-
deed relinquished. It is good policy in many
situations to encourage such a reliance rather
than to insist that affairs remain in flux.
This is a very different matter from estoppel,
where the concern is reparative and ethical
rather than politic. In estoppel cases, it is
not the policy of encouraging reliance, but
the policy of protecting'against harmful re-
liance that has already occurred.
Another notion similar to estoppel is lach-
es. Laches is an equity doctrine to the effect
that unreasonable delay will bar a claim jf
the delay is a ‘prejudice to the defendant.!®
It was developed partly because at one time
no statute of limitations applied to bar equity
claims. Equity adopted analogous legal stat-
utes for a rough guide, and concluded that,
presumptively, the plaintiff who delayed in
equity beyond the analogous limitation peri-
od at law, had harmed the other party. Con-
versely, if the plaintiff brought his equity
claim within the analogous legal statute of
mn had vested to the detehdant from the
delay, though the defendant was permitted to
to flood was not a waiver of the city’s right to
flood).
18. See 3A Corbin, Contracts § 753 (1960).
19. “‘Laches’ is the neglect for an unreasonable and
unexplained length of time under circumstances
permitting diligence, to do what in law, should
have been done. There is no fixed period within
which a person must assert his claim or be barred
by laches. The lenge of time depends upon the
cireumstances of the particular case. Mere 73
laches; the delay involved must work to the
disadvantage and prejudice of the defendant.
Laches is a question of fact to be determined from
all the evidence and circumstances adduced at tri-
14
show harm and thus defeat the claim if he
could.?®
Even if suit is timely filed, a plaintiff may
have delayed in such a way that the defend-
ant is prejudiced. If so, the plaintiff’s other-
wise valid claim will be barred. Sometimes
this may be nothing more than an ordinary
estoppel, or the kind of estoppel by silence
called “acquiescence.” The case of the neigh-
bor who fails to assert his boundary line un-
til after the garage is built across it is the
kind of estoppel case that involves elements
of delay and acquiescence. However, it is
possible that a plaintiff delays in asserting a
right but causes no provable prejudice to the
defendant. If the plaintiff has good grounds
for rescission, for example, but takes no ac-
tion to inform the defendant or make any de-
mands, his delay may operate to preclude the
rescission claim.?* The longer the delay, the
more willing courts will be to infer some
prejudice to the defendant.
Related but distinct doctrines based on
changed position of a party that may make
restitution inequitable,?®> and doctrines of
bona fide purchaser 3 are considered in de-
tail elsewhere. There are also some similar
doctrines—the clean hands and unconscion- —
ability doctrines, for example—that may af-
fect the availability of a particular remedy
without operating, as estoppel does, to negate
the right itself. These are considered sepa-
rately in the section that follows.
al.” Lake Development Enterprises v. Kojetinsky,
410 S.W.2d 361 (Mo.App.1966).
20. See Shell v. Strong, 151 F.2d 909 (10th Cir.
1945): cf. Holmberg v. Armbrecht, 327 U.S. 392,
66 S.Ct. 582, 90 L.Ed. 743 (1946). Of course, if
there is a statute of limitations so drafted that it
applies to the right asserted whether in law or
. " N 1 oY ed - if ir 1111 -
anit. or to the remedy elaim, even if in equity,
21. See § 1.5, where this point is made in terms of
election of remedies.
22. §§4.6, 11.9 below.
23. § 4.9 below.
EQUITY AND EQUITABLE REMEDIES Ch. 2°
Estoppel, waiver, acquiescence, and per-
haps laches, have all worked over into law :
and are now regularly used in purely legal
cases, along with equitable defenses general-
ly. But equitable estoppel, including its spe-
cial form, acquiescence, originated in equity,
and so did laches and unreasonable delay,
and these doctrines have been developed
primarily in the light of the equitable pur-
pose to avoid detriment to one because of the
conduct of another. These doctrines have
worked in form as defenses, but in fact they
have afforded rights where none existed. be-
~ fore.
————
Other Substantive Rules of Equity &
There are many other equity rules of a
substantive nature. For example, equity’
may recognize a servitude in land not recog-
nized originally by the law courts, or equity
may impose an equitable mortgage because
the parties have substantially agreed upon
one, even though they have failed to produce
one satisfactory to the law courts. There
are, in addition, a number of such specific
points, and a large number of equity maxims,
expressing various attitudes and ideals.?#
24. There is a long list of equity maxims, with
slight variations of no concern. Some of these
are clearly procedural, some are substantive. They
include:
1. Equity does not suffer a wrong to go with-
out remedy;
2. Equity regards substance rather than form;
3. Equity regards as done that which ought
to be done;
4, Equality is equity;
5. Where the equities are equal, the first in
time will prevail;
6. Where the equities are equal, the law will
prevail;
1. Equity follows the law;
9. He who seeks equity must do equity;
10. Equity aids the vigilant,
sleep on their rights;
not those who
11. Delay defeats equity;
Ch.
scence, and pes
ed over into lag
d in purely legs
defenses general
including its spe
sinated in equity
‘easonable delays
been developeg
2e equitable pum
ne because of thes
e doctrines haves
, but in fact they
none existed beds
Cquity :
quity rules of |
example, equit
n land not recog®
courts, or equitys
10ortgage becausgs
ally agreed upon
failed to produ
v courts. Then
of such specifi
f equity maxims
les and ideals®
(unity maxims, with
mn. Some of thes
¢ substantive. Thegs
. wrong to go withe 8
rq
» rather than formgs
that which ough
equal, the first ig iz |
!
equal, the law will
ty must come with §
st do equity;
nt, not those
§ 2.4
Courts have not necessarily completed in-
venting rules of substantive equity, and there
is no necessary end to what can be done with
the in personam order. But a complete re-
view here is quite unnecessary, for substan-
tive equity is now the substantive law of any
subject it has touched and can be found fully
explored in the topics of the law. The point
here has been rather to illustrate enough of
substance, and at the same time something of
the ethical content behind it, to throw some
light on the operation of remedial equity.
As indicated in the following section,
equitable ideals worked out in the trust and
mortgages cases, as substantive law, have
also had their effect on the granting and
withholding of equitable remedies.
§ 2.4 Remedial Limits and Defenses De-
veloped from Ethical Principles
The preceding section attempted to illus-
trate some of the major substantive rules
of equity as derived from ethical principles
professed by the chancellors. The same or
similar ethical principles also led equity to
develop certain remedial rules not known to
section.
Some of the ethical principles led to the
development of certain equitable defenses,
not originally recognized as defenses at law.
An equitable defense is often a complete de-
fense, especially nowadays, since both law
and equity courts usually give full weight to
equitable defenses. This is true with the
equitable defenses mentioned in the preced-
ing section—estoppel and laches. It is also
true with the bona fide purchaser defense,
at least where the plaintiff's only claim is
an equitable one. Such defenses are substan-
12. Equitable remedies are given as a
13. Equity aets in personam, not in rem.
see G. Keeton, Introduction to Equity 116 (5th ed.
1961). Cases are collected in West's Digest, Equity,
C=54-66.
REMEDIAL LIMITS AND DEFENSES
tive: they do not merely limit the plaintiff's
remedy, they bar his right entirely.
Other equitable defenses, however, may
operate to bar equitable remedies without
affecting legal remedies. In other words,
such defenses do not bar rights; they bar
particular remedies, while leaving other
remedies available, Thus the clean hands
rule may bar the plaintiff’'s recovery of
specific performance, but leave him a per-
fectly good claim for damages at law.
Aside from these remedial defenses, equity
has often followed a principle of balancing
various ethical and hardship considerations.
The balancing idea is entirely different from
the defense idea. It is quite possible, for ex-
ample, that the plaintiff has delayed bringing
suit, but not enough to warrant barring him
completely by the laches defense. However,
the court may wish to consider his delay
along with other equitable factors, such as
the fault, if any, of the plaintiff. It may also
wish to balance the respective hardships to
the parties. After this is done, the court may
conclude that, though the plaintiff's delay did
not constitute the defense of laches so as to
bar his claim, his claim should not be enter-
tained, or it should be diminished, because of
the total balance of various equities. The
balancing process can work in favor of the
plaintiff as well as against him, while a de-
fense, of course, can work only against one
who is asserting a claim.
Clean Hands
The maxim, “He who comes into equity
must come with clean hands,” is, as the late
Professor Chafee noted, the subject of con-
siderable humor.! Chafee thought there was
no need for such a principle of equity, _be-
cause the cases to which it was applied were
4 3 ¥ a 3 - Ie 4 L 4 maw A A i “N
spelTlic rule. For instance, the plaintiff who
I. Chaffee, Coming into Equity with Clean Hands,
47 Mich.L.Rev. 876, 1065 (1949).
Tate i a a tm Et
46 EQUITY AND EQUITABLE REMEDIES
has unclean hands may properly be barred
from equitable relief, but the motivating rea-
son may be that he is guilty of some identifia-
ble misconduct, such as misrepresentation, or
breach of contract; or it may be a matter of
public policy, unrelated to the plaintif’s eth-
ics.
But cases do talk repeatedly of the clean
hands defense. What they say is that if the
plaintiff comes to equity asserting a claim
to which he would ordinarily be entitled, he
will nevertheless be denied any relief if he
has “unclean hands”.®* By implication if not
by clear course of decisions, unclean hands
may be any sort of conduct that equity con-
siders unethical, even if that conduct is per-
fectly legal. However, this is not a license
to destroy the rights of persons whose con-
duct is unethical. The rule is that unrelated
bad conduct is not to be considered against
the plaintiff. It is only when the plaintiff’s
improper conduct is the source, or part of the
SO : 1s equitable claim, that he is to
be barred BEEAUSE of This conduct. “What is
material is not that the plaintiff’s hands are
dirty, but that he dirties them in acquiring
the right he now asserts. * * *»3
Most of the decisions seem to discuss clean
hands as if the plaintiff’s unclean hands
might never be outweighed by considera-
tions of public policy. There are cases, how-
ever, in which public policy has been deemed
so “THIpOTtant that even a plaint fT with un-
clean hands is allowed to obtain equitable re-
2. E. g., New York Football Giants, Inc. v. Los
Angeles Chargers Football Club, Inc, 291 F.2d
471 (1961) (plaintiff could not enforce contract for
professional football playing when plaintiff had
helped player violate NCAA rules by secret sign-
ing): Dipuma v. Dipuma, 136 So0.2d 505 (La.App.
19681) (one who conveys to another to defrand
cannot get property back). As to the position of
those who convey illegally, or to defeat creditors
or the like, see § 13.5 below.
3. Republic Molding Corp. v. B. W. Photo Utilities,
310 F.24 347 (9th Cir. 1963). See also Tami v.
Pikowitz, 138 N.J.Eq. 410, 48 A.2d 221 (1946).
se 0 EA Ca r =z es
Ch. 2
lief where a denial of it would oppose public 5
“Policy.
In spite of these two limitations, the clean
hands rule has a potential for very broad ap-
plication. Even conduct actionable for dam-
ages,’ or punishable by contempt ¢ can give
rise to the unclean hands defense, so that the
plaintiff may be subjected to several sanc-’
tions for a single dereliction.
There is no comparable, broad-based doc-
trine of this sort on the law side. Thus, in
theory at least, the plaintiff who is denied an
equitable remedy because he has unclean
hands, still has his legal remedy, whatever
that is. On the other hand, the same conduct
that constitutes unclean hands may bar him
at law under a defense by another name, or
he may be trapped by res judicata rules, so
that a new action at law will not be upheld.
Thus there is some evidence that as a prac-
tical matter this remedial defense may op-
erate substantively—that is, not only to bar
the remedy, but to bar the right itself by bars.
ring all other remedies.’
4. Chicago & W. I. R. R. v. Brotherhood of Clerks;
221 F.Supp. 561 (D.11L.1963) (labor dispute, injune-
tion against work stoppage might issue in spite
of unclean hands beeause of public's concern);
Radich v. Kruly, 226 Cal.App.2d 683, 38 Cal.Rptr.
340 (1964) (action by pauper f against daugh-
ter for maintenance under statutory obligation:
held, daughter liable though father had uncle: an §
hands, having worked daughter as a child, pre- j
vented her from attending school and so on).
5. One who induces a breach of contract by another;
may be liable for damages, see § 6.4 below; this
same conduct may lead equity to deny him stand-
ing to sue. Weeghman v. Killifer, 215 F. 289 (6th
Cir. 1914) (Chicago induced Killifer to play base-
ball for the Chicago Federal Club in violation of
the reserve elause in Killifer's contract with the
Philadelphia Ball Co.; Chicago Federal could not
enjoin Killifer's playing with Philadelphia, since
Chicago Federal did not have clean hands).
~ “ey A 1s 1
a Failure to nav alimony when on
ence, may constitute contempt, see § 2.9, below; this §
same conduct may lead equity to deny standing te
sue, see Martin v. Martin, 256 So0.2d 553 (Fla.App
1972).
Defenses in Equity and §
: 2
Question 2
7. Frank and Endicott,
“Legal Rights,” 14 La.L.Rev. 350 (1954).
ould oppose pub: Pe i
\itations, the clean
for very broad aps
ctionable for da =
ntempt ¢ can gives
lefense, so that thes
d to several sang
nm. 3
, broad-based docs
aw side. Thus, if
ff who is denied an®
oe he has unclea
remedy, whateve
{, the same condu
ands may bar him
» another name, &
s judicata rules, S¢
will not be upheld
ace that as a pracss
1 defense may opss
is, not only to
» right itself by bak
FE
Brotherhood of Clerk
(labor dispute, inju
might issue in Sp
of public's concern}
p.2d 683, 38 Cal. Rpte
father against daugh
Siamtory obligation
father had uncle: an >
thier as a child, pregg
school and so on).
of contract by anotheis
see § 6.4 below; this
ity to deny him stand
{illifer, 215 F. 289 (68
Killifer to play ba
al Club in violation OES
‘or's contract with thes
cago Federal could noid
ith Philadelphia, sing
«clean hands). #1
wn ordered, if there EL
+ nal Joni icorho vli- 5
ity to deny standing te
256 So0.2d 553 (Fla. Apj &
=
fonses in
. 380 (1954).
Equity ang
Questioe §
§ 2.4
Sn en A SA a SE eR
The clean hands maxim should be distin-
guished from the similar maxim that he who
seeks equity must do equity. While clean
hands doctrine denies the plaintiff relief if his
conduct has been improper, the seek-do max-
im denies him relief unless he is willing to
make an affirmative effort to aid the defend-
ant, where good conscience calls for such aid.
For example, if the defendant builds a house
on the plaintiff’s land, honestly claiming title,
the plaintiff may be expected to “do equity”,
by paying for the house before equity will
quiet title in his name?
Unconscionable Contracts in Equity
Where the plaintiff procured a contract
from the defendant that equity deemed un-
conscionable, equity would refuse enforce-
ment. Here again, the theory was that equi-
ty was denying a remedy, not a right, and the
plaintiff was free to go to law and recover
damages. What he was denied was any
equitable remedy, such as specific perform-
ance, or subrogation.?
A famous case involving this problem is
Campbell Soup Co. v. Wentz.1® In this case
Campbell developed a special kind of carrot,
which it deemed more suitable for its canned
soups. It provided seeds of this carrot to the
people named Wentz, who agreed to raise
ing counsel in 36 cases in which equity dismissed
a claim because of a conscience defense, the authors
found that in each instance, the defeat in equity
was a total defeat. This occurred because in some
instances there were analogous legal defenses, in
others because the only appropriate remedy was
equitable, as in reformation cases, in others be-
there were procedural or practical barriers
to legal relief (res judicata, for example} and in
some because of settlements, some of which did no
more than clean up the “muddle” made by the clean
hands decisions, See also § 13.5 below, as to the
denial of restitution where the plaintiff's only
medy ig restitution.
cause
Norton v. Haggett, 117 Vt. 130, 85 A.2d 571 (1952)
It ix not the intermeddling of the plaintiff here, (see
¥ 49) but the unconscionability that dictates the
result,
8." 17 2d 80 (3d Cir. 1948).
ce EN A np nr SE
REMEDIAL LIMITS AND DEFENSES
carrots on their land and to sell them all to
Campbell at a specified price. Campbell's
contract was rather favorable to Campbell in
several respects. Campbell was allowed to
refuse carrots that were too large, and it was
also allowed to refuse carrots it was unable
to inspect, grade, or receive because of cir-
cumstances beyond its control, or because
of a labor dispute. And, even if Campbell
refused deliveries of carrots under this clause,
the Wentzes were forbidden to sell elsewhere
without Campbell’s permission.
This was a fairly hard contract. Knowl-
edgeable businessmen with a reasonable
amount of bargaining power probably would
not wish to accept the risk that a season’s
work and investment would be entirely lost
if Campbell had a strike. Yet the contract
called upon the Wentzes to accept this risk.
Judge Goodrich thought that, taken as a
whole, the contract was too harsh, and for
that reason he refused to order specific per-
formance in favor of Campbell and against
the Wentzes.
Yet the Wentzes were in breach, and for a
fairly clear reason. The price of the carrots
on the market had gone up spectacularly and
the Wentzes could obtain a better price in
the market by violating their contract.
Quite possibly Campbell would be limited, in
a recovery at law, to liquidated damages in
a relatively small sum. Thus by breaching a
contract of the sort that would ordinarily be
specifically enforced in equity, the grower
could obtain a better price and might limit
their liability at law so that breach gave
them a profit even after payment of damages.
Put another way, none of the elements that
made the contract a potentially harsh one
ever came about. If anyone was guilty of
misbeh: [a vior on the arty 11a] farte nf the race AAAI A i «Alli 18 i JA 12 A
Yet it was
Campiicl] who was denied equitable relief.
ad Lilt Z1 Owel » not Camp Dell.
Since Campbell’s contract clauses caused
no harm to the growers, it is possible to in-
154 OCTOBER TERM, 1983
Syllabus 464 U. S.
UNITED STATES v. MENDOZA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 82-849. Argued November 2, 1983—Decided January 10, 1984
Respondent, a Filipino national, filed a petition for naturalization under the
Nationality Act of 1940, as amended, asserting that he had been denied
due process of law by the Government’s administration of the Act with
regard to the naturalization in the Philippines in 1945 and 1946 of non-
citizens who had served in the Armed Forces of the United States during
World War II. The naturalization examiner recommended denial of the
petition, but the Federal District Court granted the petition without
reaching the merits of respondent’s constitutional claim. The court held
that the Government was collaterally estopped from litigating the con-
stitutional issue because of an earlier, unappealed Federal District Court
decision against the Government in a case brought by other Filipino
nationals. The Court of Appeals affirmed.
Held: The United States may not be collaterally estopped on an issue such
as the one involved here, adjudicated against it in an earlier lawsuit
brought by a different party. Pp. 158-164.
(a) Under the doctrine of collateral estoppel, once a court has decided
an issue of fact or law necessary to its judgment, that decision is conclu-
sive in a subsequent suit based on a different cause of action involving a
party to the prior litigation. However, the doctrine of nonmutual offen-
sive collateral estoppel, under which a nonparty to a prior lawsuit may
make “offensive” use of collateral estoppel against a party to the prior
suit, is limited to private litigants and does not apply against the Govern-
ment. Pp. 158-159.
(b) The Government is not in a position identical to that of a private
litigant, both because of the geographic breadth of Government litiga-
tion and also, most importantly, because of the nature of the issues the
Government litigates, frequently involving legal questions of substan-
tial public importance. A rule allowing nonmutual collateral estoppel
against the Government would substantially thwart the development of
important questions of law by freezing the first final decision rendered
on a particular legal issue, and would require substantial revision of the
Solicitor General's policy for determining when to appeal an adverse
decision, a policy that involves consideration of a variety of factors, such
as the Government's limited resources and the crowded court dockets.
Pp. 159-162.
15
R
T
O
Sa
T
R
E
.
.
.
aa
Lt
UY
UNITED STATES v. MENDOZA
154 Opinion of the Court
(¢) The conduct of Government litigation in the federal courts is suffi-
ciently different from the conduct of private civil litigation in those
courts so that what might otherwise be economy interests underlying a
broad application of nonmutual collateral estoppel are outweighed by the
constraints which peculiarly affect the Government. Pp. 162-163.
672 F. 2d 1320, reversed.
REHNQUIST, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Geller argued the cause for the
United States. With him on the briefs were Solicitor Gen-
eral Lee and Joshua I. Schwartz.
Donald L. Ungar argued the cause for respondent. With
him on the brief was Lawrence N. DiCostanzo.
JUSTICE REHNQUIST delivered the opinion of the Court.
In 1978 respondent Sergio Mendoza, a Filipino national,
filed a petition for naturalization under a statute which by its
terms had expired 32 years earlier.’ Respondent’s claim for
naturalization was based on the assertion that the Govern-
ment’s administration of the Nationality Act denied him due
process of law. Neither the District Court nor the Court of
Appeals for the Ninth Circuit ever reached the merits of his
claim, because they held that the Government was collater-
ally estopped from litigating that constitutional issue in view
of an earlier decision against the Government in a case
brought by other Filipino nationals in the United States Dis-
trict Court for the Northern District of California. We hold
that the United States may not be collaterally estopped on an
issue such as this, adjudicated against it in an earlier lawsuit
brought by a different party. We therefore reverse the
judgment of the Court of Appeals.
1 Mendoza sought naturalization pursuant to §§ 701-705 of the National-
ity Act of 1940, 54 Stat. 1137, added by the Second War Powers Act, 1942,
56 Stat. 182, as amended, 8 U. S. C. §§1001-1005 (1940 ed., Supp. V).
2
iB
I
ig
B
a
a
”
156 OCTOBER TERM, 1983
Opinion of the Court 464 U. 8.
The facts bearing on respondent’s claim to naturalization are not in dispute. In 1942 Congress amended the National-
ity Act, §701 of which provided that noncitizens who served honorably in the Armed Forces of the United States during
World War IT were exempt from some of the usual require-
ments for nationality. In particular, such veterans were exempt from the requirement of residency within the United
States and literacy in the English language. Congress later
provided by amendment that all naturalization petitions seek-
ing to come under § 701 must be filed by December 31, 1946.
Act of Dec. 28, 1945, §202(c), 59 Stat. 658. Section 702 of
the Act provided for the overseas naturalization of aliens in
active service who were eligible for naturalization under § 701
but who were not within the jurisdiction of any court author-
ized to naturalize aliens. In order to implement that provi-
sion, the Immigration and Naturalization Service from 1943
to 1946 sent representatives abroad to naturalize eligible
alien servicemen.
Respondent Mendoza served as a doctor in the Philippine
Commonwealth Army from 1941 until his discharge in 1946.
Because Japanese occupation of the Philippines had made
naturalization of alien servicemen there impossible before the
liberation of the Islands, the INS did not designate a repre-
sentative to naturalize eligible servicemen there until 1945,
Because of concerns expressed by the Philippine Government
to the United States, however, to the effect that large num-
bers of Filipinos would be naturalized and would immigrate
to the United States just as the Philippines gained their inde-
pendence, the Attorney General subsequently revoked the
naturalization authority of the INS representative. Thus all
naturalizations in the Philippines were halted for a 9-month
period from late October 1945 until a new IN S representative
was appointed in August 1946.
Respondent’s claim for naturalization is based on the con-
tention that that conduct of the Government deprived him of
due process of law in violation of the Fifth Amendment to the
United States Constitution, because he was present in the
UNITED STATES v. MENDOZA
154
Opinion of the Court
Philippines during part, but not all, of the 9-month period
during which there was no authorized INS representative
there. The naturalization examiner recommended denial of
Mendoza’s petition, but the District Court granted the peti-
tion without reaching the merits of Mendoza’s constitutional
claim. The District Court concluded that the Government
could not relitigate the due process issue because that issue
had already been decided against the Government in In re
Naturalization of 68 Filipino War Veterans, 406 F. Supp.
931 (ND Cal. 1975) (hereinafter 68 Filipinos), a decision
which the Government had not appealed.?
Noting that the doctrine of nonmutual offensive collateral
estoppel has been conditionally approved by this Court in
Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979), the
?In 68 Filipinos, the District Court considered the naturalization peti-
tions of 68 Filipino World War II veterans filed pursuant to §§ 701-702 of
the Nationality Act. Fifty-three of those veterans, whom the District
Court designated as Category II veterans, like Mendoza, had made no
effort to become naturalized before the expiration of the statutory pro-
visions. Like Mendoza, they claimed that the failure of the United States
to station an INS representative in the Philippines for the entire period
of time in which rights under § 702 were available to them discriminated
against Filipinos as a class. Rejecting the Government’s arguments that
INS v. Hibi, 414 U. S. 5 (1973) (per curiam), was controlling, that the
issue was nonjusticiable, and that petitioners were not protected by the
Federal Constitution during the period at issue, the court applied strict
scrutiny to petitioners’ claim and held that the Government had not offered
sufficient justification for its conduct. 406 F. Supp., at 940-951.
Although the Government initially docketed an appeal from that deci-
sion, the Court of Appeals granted the Government’s motion to withdraw
the appeal on November 30, 1977. The Government made that motion
after a new administration and a new INS Commissioner had taken office.
Eventually the Government reevaluated its position and decided to take
appeals from all orders granting naturalization to so-called Category II
petitioners, with the exception of orders granting naturalization to peti-
tioners who filed petitions prior to the withdrawal of the appeal in 68
Filipinos. Brief for United States 11-12, and n. 13; Olegario v. United
States, 629 F. 2d 204, 214 (CA2 1980), cert. denied, 450 U. S. 980 (1981).
Mendoza’s petition for naturalization was filed after the Government with-
drew its appeal in 68 Filipinos.
158 OCTOBER TERM, 1983 Opinion of the Court 464 U. S.
Court of Appeals concluded that the District Court had not
abused its discretion in applying that doctrine against the
United States in this case. 672 F. 2d 1320, 1322 (1982).
The Court of Appeals rejected the Government’s argument
that Parklane Hosiery should be limited to private litigants.
Although it acknowledged that the Government is often in-
volved in litigating issues of national significance where con-
servation of judicial resources is less important than “getting
a second opinion,” it concluded that litigation concerning the
B rights of Filipino war veterans was not such a. case. 672
1 F. 2d, at 1329-1330. For the reasons which follow, we agree
with the Government that Parklane Hosiery’s approval of
nonmutual offensive collateral estoppel is not to be extended
k to the United States.
B Under the judicially developed doctrine of collateral estop-
I pel, once a court has decided an issue of fact or law necessary
to its judgment, that decision is conclusive in a subsequent
suit based on a different cause of action involving a party to
the prior litigation. Montana v. United States, 440 U. S.
147, 153 (1979). Collateral estoppel, like the related doctrine
of res judicata,’ serves to “relieve parties of the cost and vex-
ation of multiple lawsuits, conserve judicial resources, and,
by preventing inconsistent decisions, encourage reliance on
adjudication.” Allen v. McCurry, 449 U. S. 90, 94 (1980).
In furtherance of those policies, this Court in recent years
has broadened the scope of the doctrine of collateral estoppel
beyond its common-law limits. Ibid. It has done so by
abandoning the requirement of mutuality of parties, Blonder-
Tongue Laboratories, Inc. v. Unwersity of Illinois Founda-
tion, 402 U. 8. 313 (1971), and by conditionally approving the
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* Under res judicata, a final judgment on the merits bars further claims
5 by parties or their privies on the same cause of action. Montana v.
: United States, 440 U. S., at 153; Parklane Hosiery Co. v. Shore, 439 U. S.
: 322, 326, n. 5 (1979). The Restatement of Judgments speaks of res judi-
1 cata as “claim preclusion” and of collateral estoppel as “issue preclusion.”
Restatement (Second) of Judgments § 27 (1982).
UNITED STATES v. MENDOZA 159
154 Opinion of the Court
“offensive” use of collateral estoppel by a nonparty to a prior
lawsuit. Parklane Hosiery, supra.’
In Standefer v. United States, 447 U. S. 10, 24 (1980),
however, we emphasized the fact that Blonder-Tongue and
Parklane Hosiery involved disputes over private rights be-
tween private litigants. We noted that “[iln such cases, no
significant harm flows from enforcing a rule that affords a liti-
gant only one full and fair opportunity to litigate an issue, and
[that] there is no sound reason for burdening the courts
with repetitive litigation.” 447 U. S., at 24. Here, as in
Montana v. United States, supra, the party against whom the
estoppel is sought is the United States; but here, unlike in
Montana, the party who seeks to preclude the Government
from relitigating the issue was not a party to the earlier
litigation.®
We have long recognized that “the Government is not in
a position identical to that of a private litigant,” INS v.
Hibi, 414 U. S. 5, 8 (1973) (per curiam), both because of the
geographic breadth of Government litigation and also, most
importantly, because of the nature of the issues the Govern-
ment litigates. It is not open to serious dispute that the
Government is a party to a far greater number of cases on a
nationwide basis than even the most litigious private entity;
in 1982, the United States was a party to more than 75,000 of
+ Offensive use of collateral estoppel occurs when a plaintiff seeks to fore-
close a defendant from relitigating an issue the defendant has previously
litigated unsuccessfully in another action against the same or a different
party. Defensive use of collateral estoppel occurs when a defendant seeks
to prevent a plaintiff from relitigating an issue the plaintiff has previously
litigated unsuccessfully in another action against the same or a different
party. Parklane Hosiery, supra, at 326, n. 4.
5 In Montana we held that the Government was estopped from relitigat-
ing in federal court the constitutionality of Montana's gross receipts tax on
contractors of public construction firms. That issue had previously been
litigated in state court by an individual contractor whose litigation had
been totally financed and controlled by the Federal Government. Mon-
tana v. United States, supra, at 151, 155; see n. 9, infra.
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160 OCTOBER TERM, 1983
Opinion of the Court 464 U. S.
the 206,193 filings in the United States District Courts.
Administrative Office of the United States Courts, Annual
Report of the Director 98 (1982). In the same year the
United States was a party to just under 30% of the civil cases
appealed from the District Courts to the Court of Appeals.
Id., at 79, 82. Government litigation frequently involves
legal questions of substantial public importance; indeed, be-
cause the proscriptions of the United States Constitution are
so generally directed at governmental action, many constitu-
tional questions can arise only in the context of litigation to
which the Government is a party. Because of those facts the
Government is more likely than any private party to be in-
volved in lawsuits against different parties which nonetheless
involve the same legal issues. :
A rule allowing nonmutual collateral estoppel against the
Government in such cases would substantially thwart the
development of important questions of law by freezing the
first final decision rendered on a particular legal issue. Al-
lowing only one final adjudication would deprive this Court
of the benefit it receives from permitting several courts
of appeals to explore a difficult question before this Court
grants certiorari. See E. I. du Pont de Nemours & Co. v.
Train, 430 U. S. 112, 135, n. 26 (1977); see also Califano v.
Yamasaki, 442 U. S. 682, 702 (1979). Indeed, if nonmutual
estoppel were routinely applied against the Government, this
Court would have to revise its practice of waiting for a con-
flict to develop before granting the Government’s petitions
for certiorari. See this Court’s Rule 17.1.
The Solicitor General's policy for determining when to ap-
peal an adverse decision would also require substantial revi-
sion. The Court of Appeals faulted the Government in this
case for failing to appeal a decision that it now contends is
*The Attorney General has delegated discretionary authority to the
Solicitor General to determine when to appeal from a judgment adverse to
the interests of the United States. 28 CFR §0.20(b) (1983).
UNITED STATES v. MENDOZA 161
154 Opinion of the Court
erroneous. 672 F. 2d, at 1326-1327. But the Government’s
litigation conduct in a case is apt to differ from that of a pri-
vate litigant. Unlike a private litigant who generally does
not forgo an appeal if he believes that he can prevail, the
Solicitor General considers a variety of factors, such as the
limited resources of the Government and the crowded dockets
of the courts, before authorizing an appeal. Brief for United
States 30-31. The application of nonmutual estoppel against
the Government would force the Solicitor General to abandon
those prudential concerns and to appeal every adverse deci-
sion in order to avoid foreclosing further review.
In addition to those institutional concerns traditionally con-
sidered by the Solicitor General, the panoply of important
public issues raised in governmental litigation may quite
properly lead successive administrations of the Executive
Branch to take differing positions with respect to the resolu-
tion of a particular issue. While the Executive Branch must
of course defer to the Judicial Branch for final resolution
of questions of constitutional law, the former nonetheless
controls the progress of Government litigation through the
federal courts. It would be idle to pretend that the conduct
of Government litigation in all its myriad features, from the
decision to file a complaint in the United States district court
to the decision to petition for certiorari to review a judg-
ment of the court of appeals, is a wholly mechanical procedure
which involves no policy choices whatever.
For example, in recommending to the Solicitor General in
1977 that the Government's appeal in 68 Filipinos be with-
drawn, newly appointed INS Commissioner Castillo com-
mented that such a course “would be in keeping with the
policy of the [new] Administration,” described as “a course of
compassion and amnesty.” Brief for United States 11. But
for the very reason that such policy choices are made by one
administration, and often reevaluated by another adminis-
tration, courts should be careful when they seek to apply
expanding rules of collateral estoppel to Government litiga-
162 OCTOBER TERM, 1983
~ Opinion of the Court 464 U. S.
tion. The Government of course may not now undo the con-
sequences of its decision not to appeal the District Court
judgment in the 68 Filipinos case; it is bound by that judg-
ment under the principles of res judicata. But we now hold
that it is not further bound in a case involving a litigant who
was not a party to the earlier litigation. :
The Court of Appeals did not endorse a routine application
of nonmutual collateral estoppel against the Government, be-
cause it recognized that the Government does litigate issues
of far-reaching national significance which in some cases,
it concluded, might warrant relitigation. But in this case
it found no “record evidence” indicating that there was a
“crucial need” in the administration of the immigration laws
for a redetermination of the due process question decided in
68 Filipinos and presented again in this case: 672 F. 2d, at
1329-1330. - The Court of Appeals did not make clear what
sort of “record evidence” would have satisfied it that there
was a “crucial need” for redetermination of the question in
this case, but we pretermit further discussion of that ap-
proach; we believe that the standard announced by the Court
of Appeals for determining when relitigation of a legal issue
is to be permitted is so wholly subjective that it affords no
guidance to the courts or to the Government. Such a stand-
ard leaves the Government at sea because it cannot possibly
anticipate, in determining whether or not to appeal an
adverse decision, whether a court will bar relitigation of the
“issue in a later case. By the time a court makes its subjec-
tive determination that an issue cannot be relitigated, the
Government's appeal of the prior ruling of course would be
untimely.’
We hold, therefore, that nonmutual offensive collateral es-
toppel simply does not apply against the Government in such
a way as to preclude relitigation of issues such as those in-
volved in this case.” The conduct of Government litigation in
"The Government does not base its argument on the exception to the
doctrine of collateral estoppel for “unmixed questions of law” arising in
“successive actions involving unrelated subject matter.” Montana Vv.
UNITED STATES v. MENDOZA 163
154 Opinion of the Court
the courts of the United States is sufficiently different from
the conduct of private civil litigation in those courts so that
what might otherwise be economy interests underlying a
broad application of collateral estoppel are outweighed by
the constraints which peculiarly affect the Government. We
think that our conclusion will better allow thorough devel-
opment of legal doctrine by allowing litigation in multiple
forums. Indeed, a contrary result might disserve the econ-
omy interests in whose name estoppel is advanced by requir-
ing the Government to abandon virtually any exercise of
discretion in seeking to review judgments unfavorable to it.
The doctrine of res judicata, of course, prevents the Govern-
ment from relitigating the same cause of action against the
parties to a prior decision,® but beyond that point principles of
nonmutual collateral estoppel give way to the policies just
stated.
Our holding in this case is consistent with each of our prior
holdings to which the parties have called our attention, and
which we reaffirm. Today in a companion case we hold
that the Government may be estopped under certain circum-
stances from relitigating a question when the parties to the
two lawsuits are the same. United States v. Stauffer Chem-
ical Co., post, p. 165; see also Montana v. United States, 440
U. S. 147 (1979); United States v. Moser, 266 U. S. 236
(1924). None of those cases, however, involve the effort of
a party to estop the Government in the absence of mutuality.
The concerns underlying our disapproval of collateral es-
toppel against the Government are for the most part inappli-
United States, 440 U. S., at 162; see United States v. Stauffer Chemical
Co., post, p. 165; United States v. Moser, 266 U. S. 236, 242 (1924). Our
holding in no way depends on that exception.
*In Nevada v. United States, 463 U. S. 110 (1983), we applied principles
of res judicata against the United States as to one class of claimants
who had not been parties to an earlier adjudication, id., at 143-144, but we
recognized that this result obtained in the unique context of “a comprehen-
sive adjudication of water rights intended to settle once and for all the
question of how much of the Truckee River each of the litigants was enti-
tled to.” Id., at 143.
OCTOBER TERM, 1983
Opinion of the Court 464 U. S.
cable where mutuality is present; as in Stauffer Chemical,
Montana,’ and Moser. The application of an estoppel when
the Government is litigating the same issue with the same
party avoids the problem of freezing the development of the
law because the Government is still free to litigate that issue
in the future with some other party. And, where the parties
are the same, estopping the Government spares a party that
has already prevailed once from having to relitigate—a func-
tion it would not serve in the present circumstances. We
accordingly hold that the Court of Appeals was wrong in
applying nonmutual collateral estoppel against the Govern-
ment in this case. Its judgment is therefore
Reversed.
9 In Montana an individual contractor brought an initial action to chal-
lenge Montana's gross receipts tax in state court, and the Federal Govern-
ment brought a second action in federal court raising the same challenge.
The Government totally controlled and financed the state-court action; thus
for all practical purposes, there was mutuality of parties in the two cases.
“[T]he United States plainly had a sufficient ‘laboring oar’ in the conduct of
the state-court litigation,” 440 U. S., at 155, to be constituted a “party” in
all but a technical sense.
UNITED STATES v. STAUFFER CHEMICAL CO. 165
Syllabus
UNITED STATES v. STAUFFER CHEMICAL CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 82-1448. Argued November 2, 1983— Decided January 10, 1984
When officials of the Environmental Protection Agency (EPA) and the
State of Tennessee, accompanied by employees of a private firm under
contract to EPA, attempted to inspect one of respondent’s Tennessee
plants, respondent refused entry to the private contractors unless they
would sign an agreement not to disclose trade secrets. The private con-
tractors refused to do so, and EPA later obtained an administrative war-
rant authorizing the private employees to conduct the inspection. After
respondent refused to honor the warrant, the Government began a civil
contempt proceeding against respondent in Federal District Court in
Tennessee, and respondent moved to quash the warrant on the ground
that private contractors are not “authorized representatives” under
§ 114(a)(2) of the Clean Air Act for the purposes of conducting inspec-
tions of premises subject to regulation under the Act. The court denied
respondent’s motion, and on appeal respondent reiterated its statutory
argument and also asserted that the Government should be collaterally
estopped from asserting that § 114(a)(2) authorizes private contractors to
conduct inspections, because of a contrary decision of the Court of Ap-
peals for the Tenth Circuit in a case involving the same parties which
arose from respondents similar refusal to allow private contractors,
accompanying EPA and Wyoming officials, to enter and inspect one of
respondent’s Wyoming plants. The Court of Appeals in the pres-
ent case reversed the District Court, agreeing with respondent both on
the merits of the statutory issue and, alternatively, on the collateral-
estoppel issue.
Held: The doctrine of mutual defensive collateral estoppel is applicable
against the Government to preclude relitigation of the same issue already
litigated against the same party in another case involving virtually iden-
tical facts. Cf. Montana Vv. United States, 440 U. S. 147. Pp. 169-174.
(a) The doctrine of collateral estoppel generally applies to preclude
relitigation of both issues of law and issues of fact if those issues were
conclusively determined in a prior action involving the same parties.
The exception to the applicability of the principles of collateral estoppel
for “unmixed questions of law” arising in “successive actions involving
unrelated subject matter,” Montana Vv. United States, supra, at 162,
does not apply here. Whatever the purpose or extent of the exception,
1104
UNITED STATES of America
Vv.
Billy G. BYERS, Appellant.
| No. 78-1451.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 2, 1983.
Decided July 24, 1984.
Defendant was convicted in the United
States District Court for the District of
Columbia, Barrington D. Parker, J., of sec-
ond-degree murder and weapons offenses,
and he appealed. The Court of Appeals
affirmed, and defendant petitioned for re-
hearing with a suggestion for rehearing en
banc. The Court of Appeals, noting that
an opinion would follow, entered judgment
against defendant, 711 F.2d 420, certiorari
denied, 104 S.Ct. 717. In its issued opinion,
the Court of Appeals, Scalia, Circuit Judge,
held that: (1) statements made by defend-
ant to court-appointed psychiatrist which
tended to negate insanity defense were ad-
missible despite contention that admission
would violate defendant's right against
self-incrimination, and (2) right to counsel
did not attach to examination by court-ap-
pointed psychiatrist.
Affirmed.
. Spottswood W. Robinson, III, Chief
Judge, filed an opinion concurring in the
judgment in which J. Skelly Wright, Circuit
Judge, joined.
Bazelon, Senior Circuit Judge, filed a
dissenting opinion in which Wald and
Mikva, Circuit Judges, joined and in which
Harry T. Edwards, Circuit Judge, joined
with exceptions.
1. Criminal Law &393(1)
Where defendant, who raised insanity
defense to charge of murder, underwent
examination by court-appointed psychia-
trist, statements made by defendant to psy-
chiatrist which tended to negate the de-
740 FEDERAL REPORTER, 2d SERIES
fense were admissible despite defendant’s
contention that admission would violate his
right against self-incrimination since to dis-
allow the testimony would have had unrea-
sonable-and debilitating effect on conduct
of Tair inquify\into defendant's culpability.
(Per Scalia, Ciptuit Judge, with four Circuit
Judges and dne Senior Circuit Judge con-
curring and one Circuit Judge and one Sen-
ior Circuit Judge concurring in the result.)
U.S.C.A. Const. Amend. 5.
2. Criminal Law ¢&=396(1)
Mental Health 434
When defendant raises the defense of
insanity, he may. constitutionally be sub-
jected to compulsory examination by court-
appointed or government psychiatrists
without necessity of recording the session;
when defendant introduces into evidence
psychiatric testimony to support his insani-
ty defense, testimony of examining psychi-
atrists may be received on that issue as
well. (Per Scalia, Circuit Judge, with four
Circuit Judges and one Senior Circuit
Judge concurring and one Circuit Judge
and one Senior Circuit Judge concurring in
the result.) U.S.C.A. Const.Amend. 6.
3. Criminal Law ¢=1028, 1134(2)
Appellate courts will not consider
questions raised for first time on appeal;
however, they are bound to consider any
change, either in fact or in law, which has
supervened since judgment from which ap-
peal is taken was entered. (Per Scalia,
Circuit Judge, with four Circuit Judges and
one Senior Circuit Judge concurring and
one Circuit Judge and one Senior Circuit
Judge concurring in the result.)
4. Criminal Law &=1035(7), 1178
Defendant's failure to raise at trial or
on appeal until his petition for rehearing
claim that his Sixth Amendment guarantee
of assistance of counsel was violated when
he was examined by court-appointed psy-
chiatrist without his lawyer present did not
preclude Court of Appeals from consider
ing the claim where decision of United
spite defendant’s
would violate his
ation since to dis-
l have had unrea-
pffect on conduct
Hants culpability.
with four Circuit
ircuit Judge con-
dge and one Sen-
ng in the result.)
bs the defense of
tionally be sub-
ination by court-
nt psychiatrists
ding the session;
es into evidence
pport his insani-
xamining psychi-
bn that issue as
udge, with four
Senior Circuit
e Circuit Judge
ge concurring in
bt. Amend. 6.
1134(2)
1 not consider
time on appeal;
to consider any
law, which has
from which ap-
d. (Per Scalia,
cuit Judges and
concurring and
Senior Circuit
sult.)
), 1178
raise at trial or
for rehearing
ment guarantee
s violated when
t-appointed psy-
present did not
from consider-
sion of United
UNITED STATES v. BYERS
1105
Cite as 740 F.2d 1104 (1984)
States Supreme Court, handed down during
consideration of the petition for rehearing,
elevated the claim from completely untena-
ble to plausible. (Per Scalia, Circuit Judge,
with four Circuit Judges and one Senior
Circuit Judge concurring and one Circuit
Judge and one Senior Circuit Judge concur-
ring in the result.) U.S.C.A. Const.Amend.
6. 3 E¥3 rot :
5. Criminal Law ¢=412.2(4)
For violation of Sixth Amendment
right to counsel to occur when defendant is
questioned without counsel present, de-
fendant must be confronted either with
need to make decision requiring distinctive-
ly legal advice or with need to defend him-
self against direct onslaught of prosecutor.
(Per Scalia, Circuit Judge, with four Circuit
Judges and one Senior Circuit Judge con-
curring and one Circuit Judge and one Sen-
ior Circuit Judge concurring in the result.)
U.S.C.A. Const.Amend. 6.
6. Criminal Law ¢=641.3(11)
Sixth Amendment right to counsel did
not attach to questioning of defendant, who
had raised insanity defense, by court-ap-
pointed psychiatrist where defendant was
not confronted by procedural system and
had no decisions in nature of legal strategy
or tactics to make when he underwent the
examination and where defendant was pro-
vided with assistance of counsel before he
* decided to raise insanity defense and be-
fore he decided to introduce psychiatric tes-
timony on his own behalf at trial. (Per
Scalia, Circuit Judge, with four Circuit
Judges and one Senior Circuit Judge con-
curring and one Circuit Judge and one Sen-
ior Circuit Judge concurring in the result.)
U.S.C.A. Const. Amend. 6.
7. Criminal Law ¢=1166.13
Even if district court abused its discre-
tion in failing to use its supervisory power
over court-ordered psychiatric examina-
tions of defendant who raised insanity de-
fense to require taping of the sessions,
reversal was not warranted where not only
was no challenge raised in the trial court to
the allegedly improper examination on that
ground but also no conceivable permissible
purpose existed, especially when no unlaw-
ful activity had occurred, except self-deter-
rence. (Per Scalia, Circuit Judge, with four
Circuit Judges and one Senior Circuit
Judge concurring and one Circuit Judge
and one Senior Circuit Judge concurring in
the result.)
Appeal from the United States District
Court for the District of Columbia (Crimi-
nal No. 76-686-1).
A. Franklin Burgess, Jr., Washington,
D.C. (appointed by this Court) with whom
James Klein and James McComas, Wash-
ington, D.C., were on the brief, for appel-
lant.
John R. Fisher, Asst. U.S. Atty., Wash-
ington, D.C., with whom Stanley S. Harris,
U.S. Atty., Washington, D.C. (at the time
the brief was filed), Michael W. Farrell and
Roger M. Adelman, Asst. U.S. Atty., Wash-
ington, D.C., were on the brief, for appel-
lee.
Joel I. Klein, Joseph Onek and Peter E.
Scheer, Washington, D.C., were on brief
for amicus curiae, American Psychiatric
Ass’n urging affirmance. H. Bartow Farr,
ITI, Washington, D.C., also entered an ap-
pearance for American Psychiatric Ass'n.
Donald N. Bersoff, Washington, D.C,
was on the brief for amicus curiae, Ameri-
can Psychological Ass'n urging remand on
fifth and sixth amendment grounds.
Before ROBINSON, Chief Judge,
WRIGHT, TAMM, WILKEY, WALD,
MIKVA, EDWARDS, GINSBURG, BORK
and SCALIA, Circuit Judges, and BAZEL-
ON and MacKINNON, Senior Circuit
Judges.
Opinion filed by Circuit Judge SCALIA,
in which Circuit Judges TAMM, WILKEY,
‘GINSBURG, BORK and Senior Circuit
Judge MacKINNON join.
Concurring opinion filed by Chief Judge
SPOTTSWOOD W. ROBINSON, III, in
which Circuit Judge J. SKELLY WRIGHT
joins.
1106
Dissenting opinion filed by Senior Circuit
Judge BAZELON, in which Circuit Judges
WALD and MIKVA join; and in which
Circuit Judge HARRY T. EDWARDS joins
with exceptions noted.
SCALIA, Circuit Judge:
We consider on this appeal whether,
when a defendant asserts, and supports
through expert testimony, the defense of
insanity, the guarantee of the Fifth Amend-
ment against compelled self-incrimination
is violated by a government psychiatrist's
testimony to unrecorded statements made
by the defendant during a court-ordered
examination; whether the guarantee of the
Sixth Amendment to assistance of counsel
is violated by the exclusion of counsel from
such an examination; and whether the
courts’ supervisory power over the trial
process permits the exclusion of psychiatric
testimony that is the product of a lawful
examination.
By indictment of October 26, 1976, appel-
lant was charged with first degree murder
while armed, in violation of D.C.Code
§§ 22-2401, 22-3202, and two related weap-
1. Section 24-301 of the D.C.Code (1981) pro-
vides specifically for court-ordered psychiatric
examinations only to determine competency to
stand trial. This court has long required that
psychiatric examinations conducted pursuant to
this provision include an examination into the
defendant's sanity at the time of the offense.
See Winn v. United States, 270 F.2d 326, 328
(D.C.Cir.1959), cert. denied, 365 U.S. 848, 81
S.Ct. 810, 5 L.Ed.2d 812 (1961). In other federal
- circuits, psychiatric examinations are under-
taken pursuant to 18 U.S.C. § 4244 (1982),
which also provides only for examinations into
competency. These courts have declined to ex-
tend that limited authority to include examina-
tions into sanity at the time of the offense, and
instead have rested their decisions authorizing
such examinations upon the inherent powers of
the district court. See, e.g, United States v.
Alvarez, 519 F.2d 1036, 1041 (3d Cir.1975); Unit-
ed States v. Malcolm, 475 F.2d 420, 424 (9th
Cir.1973).
The dissent asserts that the reason the Govern-
ment requested the second examination was
that it was “[d]ispleased with the conclusions of
the doctors at St. Elizabeths.” Dissent at 1139.
It might be noted that there was reason for such
displeasure apart from (what the dissent im-
plies) disappointment at the finding of insanity.
The conclusion was framed in extraordinarily
tentative terms. (“There is difficulty in reach-
740 FEDERAL REPORTER, 2d SERIES
ons offenses. At arraignment counsel in-
formed the court that appellant’s defense
to the charges would be insanity and
moved pursuant to D.C.Code § 24-301(a)
for an order committing appellant to St.
Elizabeths Hospital for examination to de-
termine both competency to stand trial and
capacity, at the time of the offense, to form
an intent to commit the crimes with which
he was charged.! 11/2/76 Tr. 3, 6-7. The
motion was granted and appellant was
committed. After two months of examina-
tions, the staff at St. Elizabeths found that
appellant was competent to stand trial, but
had “probably lacked substantial capacity
to appreciate the wrongfulness of his con-
duct, [and] to conform his conduct to the
requirements of the law.” Letter from Dr.
Roger Peele, Acting Superintendent, dated
Jan. 13, 1977, at 1. Soon after that, the
Government moved to have appellant com-
mitted to the Medical Center for Federal
Prisoners at Springfield, Missouri, for a
second examination.? Over an unfocused
defense objection, that motion was grant-
ed.’ Appellant was transferred to Spring-
ing a definitive opinion on criminal responsibil-
ity in reference to the murder.... His current
lack of conviction ... may well be the result of
a reconstitutive process.... [H]e probably
lacked substantial capacity to appreciate the
wrongfulness of his conduct.” Letter from Dr.
Roger Peele, supra, at 1. The team at St. Eliza-
beths had been headed by a psychologist rather
than a psychiatrist, see 2/7/77 Tr. 156, and the
government asserted that the institution of St.
Elizabeths itself was not accredited, id.
3. The dissent asserts that since, prior to the
granting of this motion, the court had entered
an order finding Byers competent to stand trial,
it “could not properly authorize another ‘dual
purpose’ examination,” so that the second exam-
ination could not have been conducted pursuant
to § 24-301 of the D.C.Code, see supra, note 1,
but must have been an examination into sanity
only. Dissent at 1142 n. 16. We know of no
authority, and the dissent cites none, for the
proposition that a court cannot reconsider—or
even less than that, take steps authorized by
statute that will enable it to reconsider—an or-
der already entered. Discussion with counsel
before issuance of the order plainly indicated
that the court had a dual purpose examination
in mind, 1/27/77 Tr. 7; the order itself specifi-
cally required inquiry into both competence and
sanity, United States v. Byers, Criminal No. 78-
gnment counsel in-
appellant’s defense
be insanity and
.Code § 24-301(a)
g appellant to St.
examination to de-
y to stand trial and
he offense, to form
crimes with which
76 Tr. 3, 6-7. The
nd appellant was
onths of examina-
zabeths found that
to stand trial, but
bstantial capacity
fulness of his con-
his conduct to the
” Letter from Dr.
berintendent, dated
on after that, the
ave appellant com-
benter for Federal
, Missouri, for a
ver an unfocused
motion was grant-
isferred to Spring-
criminal responsibil-
der.... His current
well be the result of
[H]e probably
y to appreciate the
ict.” Letter from Dr.
[he team at St. Eliza-
a psychologist rather
/77 Tr. 156, and the
the institution of St.
ccredited, id.
since, prior to the
1e court had entered
1petent to stand trial,
horize another ‘dual
hat the second exam-
1 conducted pursuant
le, see supra, note 1,
mination into sanity
6. We know of no
cites none, for the
innot reconsider—or
steps authorized by
o reconsider—an or-
ussion with counsel
ler plainly indicated
urpose examination
¢ order itself specifi-
both competence and
rs, Criminal No. 78-
UNITED STATES v. BYERS 107
Cite as 740 F.2d 1104 (1984)
field on February 25, 1977 and remained
there for some six weeks, under the princi-
pal supervision of Dr. Nicola Kunev, man-
ager of the Center’s Forensic Unit. At the
end of this examination period, Dr. Kunev
and his staff concluded that appellant was
competent to stand trial and that he had
been capable of appreciating the wrongful-
ness of his conduct and of conforming that
conduct to the requirements of the law at
the time of the alleged offense. A report
outlining these conclusions was prepared
by the staff and forwarded to the court.
Trial of the case began on January 18,
1978. Appellant did not contest the sub-.
stance of the charge, which was that he
had shot and killed his lover of seven years
who had left him the month before. In-
stead, as expected, he vigorously pressed
his defense that he was insane at the time
of the offense, specifically alleging that he
was under the delusion that the decedent
had cast a spell on him and had killed her
to break free of its influence. He elicited
testimony from various relatives, neighbors
and medical experts. The testimony of
three of these witnesses was of particular
importance to the defense. The first was
appellant’s estranged wife, who had left
him because of his relationship with the
decedent. She testified that appellant told
her before she left that he wanted to sal-
vage their relationship but he could not end
his affair with the decedent because she
had cast a spell on him. Appellant had
reaffirmed his belief in the spell, she said,
when she confronted him about a small vial
marked “spell remover” which she claimed
she had found in his clothing.
The second, Dr. David L. Shapiro, a clini-
cal psychologist who had examined appel-
lant during his commitment to St. Eliza-
beths, testified that he believed appellant
suffered from “an underlying paranoid de-
lusion,” 1/25/78 Tr. 90, as a result of which
he felt “controlled by and unable to break
out of the [decedent's] power,” id. at 94.
686 (D.D.C. Jan. 27, 1977) (order committing
defendant to Springfield Federal Medical Cen-
ter); and the prologue of the order explicitly
recited that it was entered in response to a
motion “for an examination of the mental com.
740 F.2d—26
He related that appellant had told him that
the decedent “was engaged in a practice
known as taking roots.” Appellant had
explained that the roots were passed to him
when the decedent forced him to partici-
pate in sex acts with her during menses.
Appellant believed he could free himself
from decedent’s spell if he could stay away
from her for forty-two days but that,
“somehow she would always edge near.
She would come back into his life and re-
gain control over him somewhere . . with-
in the 42-day period,” id. at 95-96. Al-
though Dr. Shapiro admitted he had “nag-
ging doubts” because, among other things,
appellant’s recitals lacked conviction,
1/26/78 Tr. 140-41, 143-44, his conclusion
was that the murder was the product of
this delusional system.
The third witness, Dr. Glen H. Miller, a
psychiatrist at St. Elizabeths who also had
examined appellant, testified that appellant
had described the spell to him. Based pri-
marily on this description, but informed
also by the reports of test results and
presentations by his colleagues, Dr. Miller
generally concurred in Dr. Shapiro’s diag-
nosis. His judgment, too, was qualified to
the extent that he believed appellant’s was
not “an absolutely clear-cut case.”
1/31/78 Tr. 177.
Following this defense testimony, Dr.
Emry A. Varhely, a clinical psychologist at
the Medical Center for Federal Prisoners,
and Dr. Kunev testified for the Govern-
ment in rebuttal. Both had examined ap-
pellant while he was at the Springfield
facility pursuant to the court’s order. Ap-
pellant had told Dr. Varhely, as he had the
staff at St. Elizabeths, that he believed the
decedent had cast a spell on him. After
further discussion with appellant, however,
Dr. Varhely came to the judgment that
Byers suffered not from paranoid delusion,
that is, “a set of false beliefs, cohesive in
nature ... [that] overshadows the whole
petency of the defendant, pursuant to Title 24,
Section 301, of the District of Columbia Code, as amended,” id. There is no valid basis for con-
verting this order into something other than what it purported to be.
1108
sphere of action of that individual”; but
rather from “magical thinking or supersti-
tious type of belief” not rising to the level
of a mental illness. 2/1/78 Tr. 91... He was
thus of the opinion that at the time of the
offense, appellant was not suffering from a
mental disease and was fully able to appre-
ciate the wrongfulness of his conduct.
Dr. Kunev’s testimony followed. It is
his testimony and the circumstances sur-
rounding his interview of appellant with
which we are concerned on this appeal.
Dr. Kunev briefly related how appellant
had described his relationship with the de-
cedent, and his sense of rejection when she
had rebuffed his overtures of marriage.
Then, despite defense counsel’s objection,
but after noting that the defense would
have “a free field for cross-examination,”
2/7/78 Tr. 133, the court permitted Dr.
Kunev to recount the following about his
initial interview of appellant shortly after
the latter’s arrival in Springfield:
I asked Mr. Byers as to his under-
standing for the reason of the shooting.
He said that he has no explanation and
no reason, but he has been thinking
about it.
I asked him, since that has been sever-
al months since the incident if he has
some idea what might have been the
reason for the shooting.
He: said that this is a question that
‘Mrs. Byers asked him about the time
that he was admitted to St. Elizabeths
Despite the broad mandates of Fed.R.Crim.P.
16, the prosecution had not apprised defense
counsel of this testimony in advance of trial.
There is every reason to believe, however, that it
came as a surprise to the prosecution. There
was no record of appellant's alleged statements.
Dr. Kunev indicated that he had not recorded
the substance of this particular exchange in his
contemporaneous notes of the interview and
that in any event he had destroyed the notes
when he dictated his report to the court.
2/7/78 Tr. 200. The report made no mention
of this portion of the conversation.
5. The dissent asserts that it is “critical” whether
the defendant told Dr. Kunev that his wife sug-
gested the supernatural influences before or af-
ter the defendant's admission to St. Elizabeths,
since at the time of his admission he recounted
these influences to the hospital staff. If the
740 FEDERAL REPORTER, 2d SERIES
Hospital on November 11th, 1976, and
that his answer to her was the same, that
he has no answer for why did he shoot
Mrs. Dickens. rd
At that time, Mr. Byers said that
Mrs. Byers suggested to him that this
could be under the influence of some
magic, spells or some influence of
T0018.
And Mr. Byers said that not having
any other explanation, this appeared as a
possible answer to the reason for the
shooting.
Id. at 138-39 (emphasis added). Dr. Kunev
took appellant’s statements overall, and the
italicized portion in particular, to demon-
strate that the notion of supernatural influ-
ences working upon the defendant entered
his mind after the murder and thus was
irrelevant to his mental state at that time.
On the basis of this interpretation he testi-
fied that in his opinion appellant had been
sane.’
Dr. Kunev’s testimony substantially dis-
credited appellant’s insanity defense. The
trial court characterized it as “very devas-
tating,” 2/9/78 Tr. 35, and suggested that
it would “take the wind out of the defend-
ant’s sails and perhaps ... torpedo [him]
out of the water,” id. at 82. The prosecu-
tion’s summation called it the “critical
thing” in the Government's case, and point-
ed to it as proof that appellant’s insanity
defense was a rationalization constructed
wife's suggestion had been made after admis-
sion, the dissent asserts, “it would have been
irrelevant.” Dissent at 1174-75. This is an exagger-
ation. The point at issue, of course, is not when
the wife's suggestion had been made, but when
Byers’ statement said it had been made. That is
considerably less than crucial. The main point
of Byers’ statement was that when his wife
asked him why he killed the decedent he had no
idea, whereupon his wife suggested a possible
motive to him. If Byers said that this conversa-
tion had occurred after rather than before his
admission (and thus after he had already de-
scribed the “roots” and “spells” to the St. Eliza-
beths staff), he is much more likely to have been
in error on that point of chronological detail
than on the basic issue of where the notion of
supernatural influences originated.
th, 1976, and
the same, that
did he shoot
brs said that
im that this
ence of some
influence of
hit not having
appeared as a
bason for the
). Dr. Kunev
erall, and the
ir, to demon-
natural influ-
dant entered
nd thus was
at that time.
htion he testi-
ant had been
stantially dis-
lefense. The
“very devas-
lggested that
f the defend-
orpedo [him]
The prosecu-
the “critical
Se, and point-
int’s insanity
constructed
e after admis-
uld have been
is is an exagger-
se, is not when
ade, but when
made. That is
he main point
vhen his wife
dent he had no
bted a possible
this conversa-
an before his
d already de-
b the St. Eliza-
y to have been
ological detail
the notion of
- UNITED STATES v. BYERS ’ 1109
Cite as 740 F.2d 1104 (1984)
heard argument on February 2, 1983. We
entered judgment against appellant in this
appeal on May 19, 1983, 711 F.2d 420, not-
ing that the instant opinion would follow.
weeks after .the shooting had occurred.
2/10/18 Tr. 236.
The jury found appellant guilty of sec-
ond-degree murder and of both weapons
offenses. An appeal was taken in which a
number of errors was assigned. On De-
cember 24, 1980, this court, with Judge
Bazelon in dissent, affirmed the convictions
in a brief, per curiam opinion. A petition
by appellant for rehearing, with a sugges-
tion for rehearing en banc followed on
March 10, 1981. While that petition was
pending, the Supreme Court rendered its
decision in Estelle v. Smith, 451 U.S. 454,
101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), sus-
taining Fifth and Sixth Amendment chal-
lenges to a psychiatrist's testimony in the
sentencing phase of a capital case based on
pre-trial examination of the defendant to
determine competency to stand trial. We
requested and received memoranda from
the parties on the effect, if any, of Estelle
on the Fifth and Sixth Amendment argu-
ments made by appellant in his petition for
rehearing. We also invited the American
Psychological Association and the Ameri-
can Psychiatric Association to submit ami-
cus briefs on these arguments, which they
did; both parties were then permitted to
respond to these briefs. - Appellant's re-
quest for rehearing en banc was granted
November 24, 1982, after which we in-
structed the parties to file supplemental
briefs addressing the additional questions
whether the court should exercise its su-
pervisory power in this case, and whether
the constitutional and supervisory power
issues had been properly raised below. We
6. There is some question whether this claim is
appropriately before us. It is conceded that
appellant “did not clearly advance a constit:-
tional objection until appeal.” Memorandum in
Support of Petition for Rehearing at 24; see also
Appellant's Supplemental Memorandum at 38.
Even then, the focus of appellant's argument
was the construction to be given 18 U.S.C.
§ 4244, pursuant to which he contended he was
committed for examination. See Appellant's
Appeal Brief at 23-24. He urged us to adopt the
narrow reading given to that section by the
Third Circuit in United States v. Alvarez, 519
F.2d 1036, 1041-44 (3d Cir.1975), thereby bar-
ring admission of Dr. Kunev's testimony, even
on the issue of sanity. He specifically argued,
however, that such a narrow reading was neces-
FIFTH AMENDMENT
Appellant argues that the Fifth Amend-
ment’s proscription against compelled self-
incrimination was violated by Dr. Kunev’s
testimony to statements made during the
examination in Springfield. His claim is
not that the testimony tended to show that
he committed the murders; as noted, appel-
lant did not contest this at trial. Rather,
he contends that the Government forced
from his lips (via the compelled examina-
tion) the evidence to negate his defense of
insanity and thereby proved, indirectly
through rebuttal, that he was of the neces-
sary mind to commit the crimes. Since
mens rea is an element of the offenses on
which the Government had the burden of
proof—indeed in this case it was the only
contested issue—he argues that this was
equivalent to a forced admission of guilt.
Little guidance can be derived from our
previous opinions on the applicability of the
Fifth Amendment privilege against com-
pelled self-incrimination to psychiatric ex-
aminations. We first touched upon the
broad issue well over a decade ago in
Thornton . Corcoran, 407 F.2d 695 (D.C.
Cir.1969), where we said in dictum—and for
that reason over the dissent of then Circuit
Judge Burger—that after Miranda v. Ari-
zona, 384 U.S. 436, 86 S.Ct. 1602, 16
sary, among other reasons, to “protect the ac-
cused’s Fifth Amendment rights against self-in-
crimination.” Id. at 24.
We are satisfied the issue has arisen in a
manner that justifies our departure from the
usual rule that we will not consider claims of
error raised here for the first time. Dr. Kunev's
testimony came as a complete surprise to appel-
lant, see note 4, supra, and counsel could well
have thought the objection futile since no feder-
al circuit had barred such testimony on Fifth
Amendment grounds. See, e.g., Smith v. Estelle,
602 F.2d 694, 708 n. 19 (Sth Cir.1979), aff'd, 451
U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)
(Sixth Amendment issue considered on appeal,
although not raised at trial, because of surprise
involved and apparent futility in raising point).
1110
L.Ed.2d 694 (1966), the Fifth Amendment
would not admit of a principled distinction
between the standards applicable to proof
of factual guilt and those applicable to
proof of the requisite mental state, since
the Government bore the burden of proof
with respect to both. 407 F.2d at 700. The
clear implication was that the privilege
against self-incrimination would apply with
full force to compelled psychiatric examina-
tions and interviews. The issue came be-
fore us again the next term, but was avoid-
ed without commentary. United States v.
Marcey, 440 F.2d 281 (D.C.Cir.1971). Fi-
nally, we faced the question again four
years ago, in United States v. Whitlock,
663 F.2d 1094 (D.C.Cir.1980). There we
rejected the appellant’s contention that her
Fifth Amendment rights were violated by
admitting the rebuttal testimony of
Government psychiatrists who had exam-
ined her pursuant to court order. Our
opinion stated, without analysis, that the
question did not “generate grave concern,”
since although the testimony “incorporated
statements by appellant regarding the
manner in which she planned and commit-
ted the offense,” it had been admitted (in a
bench trial) solely on the issue of sanity.’
Moreover, appellant could not have been
harmed since the fact of the offense was
not even contested. Id. at 1107. Because
the opinion gave no reasoned discussion
(and hence perhaps no reasoned considera-
tion) to the question of admissibility on the
issue of sanity, and because it was apply-
ing a “plain error” test to an objection not
raised below, id., it represents something
short of a definitive resolution of the mat-
ter.
Appellant contends that the Supreme
Court's decision in Estelle dictates the re-
sult in this case. But it does not. In the
first place, Estelle was materially different
7. The court's attention was perhaps drawn to
this factor by our earlier decision in Edmonds v.
United States, 260 F.2d 474 (D.C.Cir.1958), hold-
ing that 18 U.S.C. § 4244 bars admission of
statements relating to factual guilt made during
a psychiatric examination pursuant to D.C.Code
§ 24-301. Section 4244 provides:
No statement made by the accused in the
course of any examination into his sanity or
740 FEDERAL REPORTER, 2d SERIES
on its facts. There the defendant had been
examined by a State psychiatrist, at the
court’s order, to ascertain only his compe-
tency to stand trial. The State had later
introduced the psychiatrist's testimony to
demonstrate the defendant's future dan-
gerousness at the penalty stage of the pro-
ceeding. The Court held that “[i]n these
distinct circumstances,” 451 U.S. at 466,
101 S.Ct. at 1874—which included the fact
that the defendant had not raised before
trial any issue of competency to stand trial
or sanity at the time of the offense, had
introduced no evidence regarding insanity,
and had been given no notice that results
of the competency examination could be
used against him at the sentencing stage of
the proceeding—the defendant had been
denied his Fifth Amendment rights. More-
over, the Court expressly distinguished E's-
telle from a case such as we now have
before us:
Nor was the interview analogous to a
sanity examination occasioned by a de-
fendant’s plea of not guilty by reason of
insanity at the time of his offense.
When a defendant asserts the insanity
defense and introduces supporting psy-
chiatric testimony, his silence may de-
prive the State of the only effective
means it has of controverting his proof
on an issue that he interjected into the
case. Accordingly, several Courts of Ap-
peals have held that, under such circum-
stances, a defendant can be required to
submit to a sanity examination conducted
by the prosecution’s psychiatrist.
451 U.S. at 465, 101 S.Ct. at 1874 (citations
omitted). And its holding was specifically
limited to account for the perceived differ-
ence: :
A criminal defendant, who neither ini-
tiates a psychiatric evaluation nor at-
mental competency provided for by this sec-
tion, whether the examination shall be with
or without the consent of the accused, shall be
admitted in evidence against the accused on
the issue of guilt in any criminal proceeding.
We said, however, that that section would not
bar statements going only to the issue of sanity.
260 F.2d at 476-77.
dant had been
iatrist, at the
nly his compe-
ptate had later
5 testimony to
s future dan-
age of the pro-
at “[iJn these
U.S. at 466,
luded the fact
raised before
ly to stand trial
e offense, had
rding insanity,
e that results
htion could be
bncing stage of
lant had been
rights. More-
stinguished Es-
we now have
analogous to a
oned by a de-
y by reason of
his offense.
s the insanity
pporting psy-
ence may de-
only effective
ting his proof
jected into the
| Courts of Ap-
r such circum-
be required to
tion conducted
iatrist.
1874 (citations
as specifically
preeived differ-
0 neither ini-
ation nor at-
i for by this sec-
n shall be with
accused, shall be
the accused on
inal proceeding.
ction would not
Le issue of sanity.
+ UNITED STATES v. BYERS : 1111
Cite as 740 F.2d 1104 (1984)
tempts to introduce any psychiatric ev-
idence, may not be compelled to respond
to a psychiatrist if his statements can be
used against him at a capital sentencing
proceeding. :
Id. at 468, 101 S.Ct. at 1875 (emphasis
added). Thus, if Estelle has any bearing
upon the present case, it is that it suggests
by its dicta that no Fifth Amendment pro-
tection may exist.
While we have no firm and directly rele-
vant authority in our own opinions or in the
holdings of the Supreme Court, virtually all
other circuits have addressed claims mate-
rially indistinguishable from that raised by
appellant. They have uniformly held that
where the defendant has interposed the
defense of insanity, the Fifth Amendment's
privilege against self-incrimination is not
violated by a court-ordered psychiatric ex-
amination (whether by a psychiatrist ap-
pointed by the court or one selected by the
Government); and that where the defend-
ant introduces psychiatric testimony at trial,
the Fifth Amendment does not prevent
testimony by the psychiatrist who conduct-
ed the court-ordered examination on the
issue of sanity.® See, e.g., United States v.
Madrid, 673 F.2d 1114 (10th Cir.), cert.
denied, 459 U.S. 843, 103 S.Ct. 96, 74
L.Ed.2d 88 (1982); United States v. Reifs-
teck, 535 F.2d 1030 (8th Cir.1976); United
States v. Cohen, 530 F.2d 43 (5th Cir.),
cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50
L.Ed.2d 130 (1976); United States wv.
Bohle, 445 F.2d 54 (7th Cir.1971), over-
8. Where testimony to a defendant's statement
during a compelled psychiatric examination is
introduced not on the defendant's sanity but to
prove that he committed the criminal act in
question, of course a different issue is present-
ed. Such testimony is proscribed by both 18
U.S.C. § 4244, and Fed.R.Crim.P. 12.2(c), see,
e.g., United States v. Bennett, 460 F.2d 872, 878-
79 n. 23 (D.C.Cir.1972); Edmonds v. United
States, 260 F.2d 474 (D.C.Cir.1958). Some
courts have held it to be constitutionally inad-
missible. Gibson v. Zahradnick, 581 F.2d 75, 78
(4th Cir.1978), cert. denied, 439 U.S. 996, 99 S.Ct.
597, 58 L.Ed.2d 669 (1978); United States wv.
Bohle, 445 F.2d 54, 66-67 (7th Cir.1971). The
dissent would expand this constitutional pro-
scription, so that the Fifth Amendment would
exclude as well “statements made by the defend-
ant to the psychiatrist which are not integral to
ruled on other grounds in United States
v. Lawson, 653 F.2d 299, 303 n. 12 (7th
Cir.1981); United States v. Handy, 454
F.2d 885 (9th Cir.1971), cert. denied, 409
U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972);
United States v. Weiser, 428 F.2d 932 (2d
Cir.1969), cert. denied, 402 U.S. 949, 91
S.Ct. 1606, 29 L.Ed.2d 119 (1971); United
States v. Baird, 414 F.2d 700 (2d Cir.1969),
cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24
L.Ed.2d 497 (1970); United States v. Al-
bright, 388 F.2d 719 (4th Cir.1968); Alex-
ander v. United States, 380 F.2d 33 (8th
Cir.1967); Pope v. United States, 372 F.2d
710 (8th Cir.1967) (en banc), vacated and
remanded on other grounds, 392 U.S. 651,
88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert.
denied, 401 U.S. 949, 91 S.Ct. 953, 28
L.Ed.2d 232 (1971); accord, United States
v. Reason, 549 F.2d 309 (4th Cir.1977).
The only district court opinion in this cir-
cuit to address the Fifth Amendment ques-
tion ruled similarly. Battle v. Cameron,
260 F.Supp. 804 (D.D.C.1966).
Various justifications for denying the
claim have been advanced by these courts.
The Eighth Circuit, in a case remarkably
similar to the one before us, Pope v. Unit-
ed States, supra, was perhaps the first
federal circuit to reach the issue. Then
Circuit Judge Blackmun, writing for the en
banc court, relied at least alternatively
upon the theory that the defendant had
“waived” the Fifth Amendment protection
by voluntarily making psychiatric evalua-
tion an issue in the case. 372 F.2d at 720.
his process of diagnosis.” Dissent at 1157.
Even if that novel principle were to be accepted,
it would have no bearing here. The dissent is
wrong in describing the statement as irrelevant
to Kunev’s diagnosis. As the dissent itself else-
where notes, Dr. Kunev concluded, on the basis
of the statement, “that since the claimed delu-
sions did not arise until after the homicide, they
could not logically have had any relation to the
killing of Jacqueline Dickens.” Id. at 1145.
That is to say, of course, that they could not
have had any relation in the only way Kunev
had been asked to inquire into—as affecting
Byers’ mental state at the time. Kunev testified
that he rejected the “roots” and “spells” delu-
sions precisely because “[t]his being suggested
by his wife, I didn't consider it important. ...
[This was not his thinking.” 2/7/78 Tr. 75.
1112
The Ninth Circuit, in United States wv.
Handy, supra, likened compelled psychiat-
ric examination to “compelling blood tests,
handwriting exemplars, ‘fingerprinting,
photographing or measurements, to write
or speak for identification, to appear in
court, to stand, to assume a stance, to
walk, or to make a particular gesture.””
454 F.2d at 889 (footnote omitted), quoting
from Schmerber v. California, 384 U.S.
757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d
908 (1966). Thus, it reasoned, the psychia-
tric interview compelled neither “communi-
cations” nor “testimony,” but “real or
physical” evidence, and for that reason was
not entitled to Fifth Amendment protec-
“tion. See also United States v. Cohen,
supra, 530 F.2d at 48; Battle v. Cameron,
supra, 260 F.Supp. at 806. A Second Cir-
cuit case, again factually quite similar to
the one here, United States v. Baird, su-
pra, in effect combined the first two theo-
ries. It disapproved the notion of a naked
“waiver,” but found that the defendant's
implicit reliance upon the theory that state-
ments made in psychiatric examinations are
“real or physical evidence” in order to have
his expert's testimony received despite the
hearsay rule, created an estoppel against
objection to the Government's reliance
upon the same theory to overcome the
Fifth Amendment bar. 414 F.2d at 709.
See also United States v. Weiser, supra,
428 F.2d at 936. Finally, in a fourth cate-
gory of cases, the Fifth Amendment claim
has been rejected in whole or in part be-
cause of a belief that the privilege against
self-incrimination narrowly reaches only
statements introduced to show that the de-
fendant actually committed the offense in
question, but not statements brought in on
the issue of sanity. See, e.g., United
States v. Whitlock, supra, 663 F.2d at
1107; United States v. Bohle, supra, 445
F.2d at 66-67; United States v. Albright,
supra, 388 F.2d at 725.
We rely upon none of these rationales.
The second of them has been categorically
rejected, and the last cast in grave doubt,
by the Supreme Court's decision in Estelle
v. Smith, supra. There the State urged,
as the Ninth Circuit in Handy had held,
740 FEDERAL REPORTER, 2d SERIES
that Smith’s communications to the court-
appointed psychiatrist during an examina-
tion limited to competency to stand trial
were nontestimonial in character, and spe-
cifically sought support by way of analogy
to the Court's decisions in United States v.
Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35
L.Ed.2d 67 (1973) (voice exemplar), Gilbert
v. California, 388 U.S. 263, 87 S.Ct. 1951,
18 L.Ed.2d 1178 (1967) (handwriting exemp-
lar), United States v. Wade, 388 U.S. 218,
87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (line-
up), and Schmerber v. California, 384 U.S.
757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)
(blood sample). The Court dismissed the
“argument out of hand. The psychiatrist's
prognosis had been based on statements
made to him by respondent Smith, and he
had related the “substance” of these state-
ments; this was sufficient, the Court said,
to implicate directly the Fifth Amendment.
The State also contended that “‘incrimina-
tion is complete once guilt has been adjudi-
cated,” 451 U.S. at 462, 101 S.Ct. at 1872,
and therefore that the Fifth Amendment
did not prohibit introduction of Smith's
statements at the sentencing phase of the
bifurcated trial. This is similar (though not
identical) to the reasoning set forth in
Whitlock, that no Fifth Amendment prob-
lem is presented as long as the statements
are admitted on the question not of guilt,
but of sanity—the dichotomy suggested by
18 U.S.C. § 4244 and Fed.R.Crim.P. 12.2(c).
This argument too was rejected, the Court
reiterating what it said in In re Gault, 387
U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d
527 (1967): Bid
“the availability of the [Fifth Amend-
ment] privilege does not turn upon the
type of proceeding in which its protection
is invoked, but upon the nature of the
statement or admission and the exposure
which it invites.”
451 U.S. at 462, 101 S.Ct. at 1872. Because
the possible consequence of Smith's state-
ments to the psychiatrist was imposition of
the death penalty, the court held the Fifth
Amendment applied to the examination. A
similar conclusion would seem compelled
with regard to statements to a psychiatrist
b to the court-
ban examina-
to stand trial
cter, and spe-
ay of analogy
ited States v.
5.Ct.” 764, 35
plar), Gilbert
87 S.Ct. 1951,
riting exemp-
388 U.S. 218,
£9 (1967) (line-
rnia, 384 U.S.
2d 908 (1966)
dismissed the
psychiatrist's
In statements
Smith, and he
f these state-
e Court said,
Amendment.
t “incrimina-
been adjudi-
S.Ct. at 1872
| Amendment
of Smith's
phase of the
ir (though not
set forth in
ndment prob-
e statements
not of guilt,
suggested by
Fim. P. 12.2(c).
ed, the Court
re Gault, 387
, 18 L.Ed.2d
ifth Amend-
Irn upon the
its protection
ature of the
the exposure
72. Because
mith’s state-
imposition of
eld the Fifth
mination. A
m compelled
L psychiatrist
UNITED STATES v. BYERS 1113
Cite as 740 F.2d 1104 (1984)
that are introduced to achieve the conse-
quence of eliminating an insanity defense
and thus obtaining a conviction.
As for the other two theories discussed
above: It seems to us at best a fiction to
say that when the defendant introduces his
expert's testimony he “waives” his Fifth
Amendment rights. What occurs is surely
no waiver in the ordinary sense of a known
and voluntary relinquishment, but rather
merely the product of the court’s decree
that the act entails the consequence—a de-
cree that remains to be justified. Even if
the average defendant pleading insanity
were aware of this judicially prescribed
consequence (an awareness that the doc-
trine of waiver would normally require), his
acceptance of it could hardly be called un-
constrained. And although “the Constitu-
tion does not forbid ‘every government-im-
posed choice in the criminal process that
has the effect of discouraging the exercise
of constitutional rights,’ ” Jenkins v. An-
derson, 447 U.S. 231, 236, 100 S.Ct. 2124,
2128, 65 L.Ed.2d 86 (1980), quoting from
Chaffin v. Stynchombe, 412 U.S. 17, 30, 93
S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973), it is
doubtful whether such a “waiver” could
meet the high standard required for a vol-
untary, “free and unconstrained,” Cu-
lombe v. Connecticut, 367 U.S. 568, 602, 81
S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961),
relinquishment of the Fifth Amendment
privilege. See, e.g., Miranda ». Arizona,
supra, 384 U.S. at 475-76, 86 S.Ct. at 1628
29. We are no more persuaded by the
“estoppel” argument. Defendants in ap-
pellant’s position make no representations
or promises, either express or implied in
fact. And we think that the proper scope
of-any implied-in-law promise would be that
they would not object to the Government's
use of the “physical evidence” theory for
the same purpose of overcoming the hear-
say rule. The Fifth Amendment objection
would remain—especially since, as noted
above, the’ Supreme Court has explicitly
rejected the “physical evidence” theory in
that application.
All of these theories are easy game, but
it is not sporting to hunt them. The emi-
nent courts that put them forth intended
them, we think, not as explanations of the :
genuine reason for their result, but as de-
vices—no more fictional than many others
to be found—for weaving a result demand-
ed on policy grounds unobtrusively into the
fabric of the law. Whether they have describ-
ed this policy as the need to maintain a
“fair state-individual balance” (one of the
values underlying the Fifth Amendment
set forth in Murphy v. Waterfront Com-
mission, 378 U.S. 52, 55, 84 S.Ct. 1594,
1596, 12 L.Ed.2d 678 (1964) (citation omit-
ted), see, e.g., United States v. Albright,
supra, 388 F.2d at 724; United States v.
.Bohle, supra, 445 F.2d at 67, or as a mat-
ter of “fundamental fairness,” see, e.g.
Pope v. United States, supra, 372 F.2d at
720, or merely a function of “judicial com-
mon sense,” see, e.g., Alexander v. United
States, supra, 380 F.2d at 39; United
States v. Reifsteck, supra, 535 F.2d at
1034, they have denied the Fifth Amend-
ment claim primarily because of the unrea-
sonable and debilitating effect it would
have upon society’s conduct of a fair in-
quiry into the defendant’s culpability. As
expressed in Pope:
It would be a strange situation, indeed,
if, first, the government is to be com-
pelled to afford the defense ample psy-
chiatric service and evidence at govern-
ment expense and, second, if the govern-
ment is to have the burden of proof, ...
and yet it is to be denied the opportunity
to have its own corresponding and verify-
ing examination, a step which perhaps is
the most trustworthy means of attempt-
ing to meet that burden.
372 F.2d at 720. We agree with this con-
cern, and are content to rely upon it alone
as the basis for our rejection of the Fifth
Amendment claim. We share the dissent’s
solicitude for the “private enclave of the
- human personality,” Dissent at 1151. But
when, as here, a defendant appeals to the
nature of that enclave as the reason why
he should not be punished for murder, and
introduces psychiatric testimony for that
purpose, the state must be able to follow
where he has led.
1114
Appellant and amici would have us be-
lieve that the mere availability of cross-ex-
amination of the defendant’s experts is suf-
ficient to provide the necessary balance in
the criminal process. That would perhaps
be so if psychiatry were as exact a science
as physics, so that, assuming the defense
psychiatrist precisely described the data
(consisting of his interview with the de-
fendant), the error of his analysis could be
demonstrated. It is, however, far from
that. Ordinarily the only effective rebuttal
of psychiatric opinion testimony is contra-
dictory opinion testimony; and for that
purpose, as we said in Rollerson v. United
States, 343 F.2d 269, 274 (D.C.Cir.1964),
“[t]he basic tool of psychiatric study re-
mains the personal interview, which re-
quires rapport between the interviewer and
the subject.”
Our judgment that these practical consid-
erations of fair but effective criminal pro-
cess affect the interpretation and applica-
tion of the Fifth Amendment privilege
against self-incrimination is supported by
the long line of Supreme Court precedent
holding that the defendant in a criminal or
even civil prosecution may not take the
stand in his own behalf and then refuse to
consent to cross-examination. See, e.g.,
Fitzpatrick v. United States, 178 U.S. 304,
20 S.Ct. 944, 44 L.Ed. 1078 (1900) (criminal
prosecution); Brown v. United States, 356
U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958)
(civil denaturalization proceeding). The .
justification for this similarly “coerced”
9. This recording can consist of an audio- or
video-tape, or note-taking by counsel or a “de-
fense expert.” Id. at 1157 n. 116. Judge Ed-
wards would require only “complete notes of
the interview,” presumably made by the psychi-
atrist himself. Dissent at 1155 n.**. None of the
present dissenters opted for transcription by a
court reporter, but that is an intermediate posi-
tion which—along with an infinitude of other
variables, such as restrictions upon the location
and duration of the examination, see id. at 1152
—an approach such as the dissent’s ought to
take into account. These refinements presum-
ably await a later day.
"The dissent is confident that recording will
not distort the psychiatric interview, since “a
criminal defendant subject to a court-ordered
clinical interview ... know[s] that none of what
he says will be kept in confidence in any event,”
740 FEDERAL REPORTER, 2d SERIES
testimony is precisely that which we apply
to the present case. As said in Brown, a
defendant rer. :
cannot reasonably claim that the Fifth
Amendment gives him not only this
choice [whether to testify or not] but, if
he elects to testify, an immunity from
cross-examination on the matters he has
himself put in dispute. It would make of
the Fifth Amendment not only a humane
safeguard against judicially coerced self-
disclosure but a positive invitation to mu-
tilate the truth a party offers to tell. ...
The interests of the other party and re-
gard for the function of courts of justice
to ascertain the truth become relevant,
and prevail in the balance of considera-
tions determining the scope and limits of
the privilege against self-incrimination.
356 U.S. at 155-56, 78 S.Ct. at 626-27 (foot-
note & citation omitted).
In the dissent’s view, the process of de-
termining where the right to remain silent
ends and the society’s need to require testi-
mony begins is to be conducted not merely
on the basis of self-incrimination concerns,
but with an eye to unrelated constitutional
guarantees as well. The issue here, it as-
serts, is not whether the defendant who
wishes to bring forward psychiatric evi-
dence can decline psychiatric examination,
but rather whether he can decline such
examination in absence of tape recording,
Dissent at 1155-1157.° That safeguard, of
course, has nothing to do with the values
and concerns underlying the right not to
"and since in such circumstances no “sanctity of
the therapeutic relationship” exists. Id. at 1156.
This is inconsistent with the dissent’s la-
ter judgment that the defendant should receive a
Miranda warning before the psychiatric exami-
nation because he confronts “a variety of solici-
tous, confidence-inspiring mental health profes-
sionals” who “present[] a therapeutic facade
beneath which exists a real adversity of inter-
ests,” id. at 1158. Whichever of these incompati-
ble perceptions is correct, one must admire the
dissent’s courage in assessing the needs and
prescribing the details of psychiatric practice,
despite .its awareness that even our less refined
calculations in this field have left us (and, judg-
ing by the repeated legislative reversals of our
determinations, the people) “sorely disappoint-
ed.” Id at 1175.
which we apply
said in Brown, a
n that the Fifth
not only this
fy or not] but, if
immunity from
e matters he has
[t would make of
pt only a humane
plly coerced self-
invitation to mu-
pffers to tell. ...
er party and re-
courts of justice
pecome relevant,
ce of considera-
bpe and limits of
elf-incrimination.
at 626-27 (foot-
e process of de-’
to remain silent
to require testi-
cted not merely
ation concerns,
bd constitutional
bsue here, it as-
defendant who
psychiatric evi-
ic examination,
n decline such
tape recording,
t safeguard, of
ith the values
e right not to
es no “sanctity of
Xxists. Id. at 1156.
the dissent’s la-
t should receive a
bsychiatric exami-
h variety of solici-
tal health profes-
erapeutic facade
dversity of inter-
these incompati-
must admire the
Ek the needs and
chiatric practice,
our less refined
eft us (and, judg-
reversals of our
forely disappoint-
UNITED STATES v. BYERS 1115
Cite as 740 F.2d 1104 (1984) : incriminate oneself, but pertains instead to
the right not to be convicted on the basis of
unreliable ‘evidence. It is a due process
rather than a self-incrimination issue, and
there is no reason in law or logic why the
due process clause should be given special
application in cases that happen to involve
self-incrimination issues as well. Why, for
example, is videotaping a defendant's state-
ments to a psychiatrist any more important
than videotaping an oral confession, where
the same need exists to assure that the
statement is accurately reported at trial
and is not the product of suggestiveness?
Indeed, where the oral confession is made
to a police officer there would seem to be
much greater reason to insist upon such
protection; but there is no such rule. See,
e.g, Ashdown v. Utah, 3857 US. 426, 78
S.Ct. 1354, 2 L.Ed.2d 1443 (1958). What
the dissent does, in other words, is to seize
upon the self-incrimination issue as a
means of importing into this case unrelated
(and elsewhere nonexistent) constitutional
guarantees. The choice before us in the
Fifth Amendment aspect of this case—
whether or not to compel the defendant to
testify—is converted into a veritable consti-
tutional delicatessen, in which we can pick
and choose among various exotic protec-
tions for inclusion in the defendant's bas-
ket. We can of course decree that testimo-
ny will not be required unless a videotape
is made—just as we can decree that it will
not be required unless counsel is allowed to
be present, or unless the defendant’s state-
ments are corroborated by three indepen-
dent witnesses or the psychiatrist’s testi-
mony heard by an 18-person jury. But
such fiats would be appended to, rather
than contained within, the self-incrimina-
tion clause of the Fifth Amendment.
A particularly odd selection from among
the available constitutional savories is the
dissent’s requirement that a “Miranda
-type warning” be provided before the psy-
chiatric examination, Dissent at 1158-
1159. We are tempted to suggest that the
10. The guarantee provides: “In all criminal
prosecutions, the accused shall enjoy the right
. to have the Assistance of Counsel for his
defence.”
goal of erecting what the dissent considers
the necessary distrust might be more effec-
tively achieved by requiring the examining
psychiatrist to wear a police uniform. (As
the dissent notes, “[t]he Constitution . .. is
not wedded to particular technologies,” id.
at 1157 n. 116.) The proposal obviously has
the effect, if not the purpose, of depriving
the examination of whatever validity it
might contain. It has nothing whatever to
do with the rule of Miranda, which was
designed to assure the voluntariness of tes-
timony that was not required by law. If a
similar warning served any purpose here, it
would not be to induce the defendant to
remain silent where he has a right to do so,
but to induce him to withhold legally re-
quired testimony, or to dissemble.
[1,2] Accordingly, we reject appellant’s
claim that his privilege against compelled
self-incrimination was denied by Dr. Ku-
nev’s testimony. We hold that when a
defendant raises the defense of insanity, he
may constitutionally be subjected to com-
pulsory examination by court-appointed or
government psychiatrists without the ne-
cessity of recording; and when he intro-
duces into evidence psychiatric testimony
to support his insanity defense, testimony
of those examining psychiatrists may be
received (on that issue) as well.
SIXTH AMENDMENT
[3,4] In addition to the Fifth Amend-
ment objection, appellant claims that his
Sixth Amendment guarantee of assistance
of counsel! was violated when he was
examined at Springfield, without his lawyer
present, after commencement of criminal
proceedings. Because the availability of a
Sixth Amendment claim does not necessari-
ly turn upon the existence of a Fifth
Amendment right against compelled self-in-
crimination, United States », Wade, 388
U.S. 218, 223 228 #7 S.Ct 1926, 1930,
1931, 18 L.Ed.2d 1149 (1967), we must sepa-
rately consider this aspect of the appeal.!!
11. Neither at trial nor on appeal did appellant
raise this Sixth Amendment claim. Appellant
concedes that it was asserted for the first time
(by new counsel) in his Petition for Rehearing
E
a
N
E
IR
EA
N
E
B
lic
S
e
t
ima
1116 740 FEDERAL REPORTER, 2d SERIES
This court has never been presented with
this specific question. On a number of
"occasions, however, we have faced, but
found it unnecessary to decide, the claim
that a criminal defendant’s Sixth Amend-
ment rights were violated by failure to
permit his attorney to attend psychiatric
staff conferences leading to an evaluation
(for subsequent introduction at trial) of his
mental state at the time of the crime. See
United States v. Canty, 469 F.2d 114, 121
(D.C.Cir.1972); United States v. Marcey,
440 F.2d 281, 284-85 (D.C.Cir.1971); Unat-
ed States v. Eichberg, 439 F.2d 620, 621 n.
1 (D.C.Cir.1971); Thornton wv. Corcoran,
supra, 407 F.2d at 702. In the last cited of
these cases we opined that that claim—
which on its face would seem less substan-
tial than the current one, since it involved
proceedings in which the defendant himself
was not even a participant—was “anything
but frivolous,” and indeed of “constitution-
al dimensions” if the right to cross-exami-
nation could not be protected through any
other means.'? 407 F.2d at 702.
At the time this dictum was written, it
had credible support in Supreme Court
precedent. The governing case on the is-
sue of what constituted a “critical stage”
of prosecution, at which the right to assis-
tance of counsel applied, was United States
v. Wade, supra, which found the right ap-
plicable to a post-arraignment lineup. The
language of that opinion seemed to suggest
that counsel had to be permitted to attend
and Suggestion for Rehearing En Banc. Appel-
lees argue that we are therefore precluded from
considering it. It is true as a general rule that
appellate courts will not consider questions
raised for the first time on appeal, see, e.g,
Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct.
2868, 2877, 49 L.Ed.2d 826 (1976). However,
we are “bound to consider any change, either in
fact or in law, which has supervened since the
judgment [from which appeal is taken] was en-
tered,” Patterson v. Alabama, 294 U.S. 600, 607,
55 S.Ct. 575, 578, 79 L.Ed. 1082 (1935); see, e.g,
Pendergrast v. United States, 416 F.2d 776, 780-
81 (D.C.Cir.1969). We think that the Supreme
Court's decision in Estelle v. Smith, supra, hand-
ed down during our consideration of Byers’
Petition for Rehearing, which elevated Byers’
Sixth Amendment claim from completely unten-
able to plausible, see pages 1119-1120, infra,
invokes this limited exception.
pretrial proceedings in which the existence
of unfairness and inaccuracy could not oth-
erwise be detected and challenged at trial.
Thus, various other steps preparatory to
trial, such as “systematized or scientific
analyzing of the accused’s fingerprints,
blood sample, clothing, hair, and the like,”
where counsel is not required, were distin-
guished from lineups on the ground that
“[kInowledge of the techniques of science
and technology is sufficiently available ...
that the accused has the opportunity for a
meaningful confrontation of the Govern-
ment’s case at trial through the ordinary
processes of cross-examination of the
Government's expert witnesses and the
presentation of the evidence of his own
experts,” so that ‘there is minimal risk
that ... counsel's absence at such stages
might derogate from his right to a fair
trial.” 388 U.S. at 227-28, 87 S.Ct. at
1932-33. By contrast, the Court said, “the
accused’s inability effectively to recon-
struct at trial any unfairness that occurred
at the lineup may deprive him of his only
opportunity meaningfully to attack the
credibility of the witness’ courtroom identi-
fication,” id. at 231-32, 87 S.Ct. at 1934-35.
As the Court summarized its holding on
this aspect of the case:
Since it appears that there is grave
potential for prejudice, intentional or not,
“in the pretrial lineup, which may not be
capable of reconstruction at trial, and
since presence of counsel can often avert
12. Then Judge Burger objected to this discus-
sion, which he considered “plainly dicta and in
no sense authoritative.” Thornton, supra, 407
F.2d at 705. His dissent from this portion of
the opinion appended his dissent from an earli-
er order filed in the same case, in which he
rejected the contention that the staff conference
was a critical prosecutive stage invoking Sixth
Amendment protections. 407 F.2d at 711. The
Supreme Court cited this dissent approvingly in
Estelle, supra, 451 U.S. at 470 n. 14, 101 S.Ct. at
1876 n. 14.
A Sixth Amendment claim to presence of
counsel at a staff conference has been rejected
by our district court. United States v. Fletcher,
329 F.Supp. 160 (D.D.C.1971).
he existence
buld not oth-
ged at trial.
pparatory to
or scientific
fingerprints,
nd the like,”
were distin-
ground that
s of science
available ...
rtunity for a
the Govern-
the ordinary
jon of the
kes and the
of his own
minimal risk
such stages
ht to a fair
87 S.Ct. at
urt said, “the
ly to recon-
hat occurred
n of his only
attack the
troom identi-
t. at 1934-35.
s holding on
ere is grave
1tional or not,
h may not be
at trial, and
in often avert
| to this discus-
nly dicta and in
pron, supra, 407
this portion of
it from an earli-
be, in which he —
staff conference
- invoking Sixth
.2d at 711. The
t approvingly in
14,101 S.Ct. at
to presence of
as been rejected
tates v. Fletcher,
UNITED STATES v. BYERS 1117
Cite as 740 F.2d 1104 (1984)
prejudice and assure a meaningful con-
frontation at trial, there can be little
doubt that for Wade the post-indictment
lineup was a critical stage of the prosecu-
tion.
Id. at 236-37, 87 S.Ct. at 1937 (footnote
omitted). The Court neither mentioned any
distinctively legal decisions which the de-
fendant would have to make at the lineup,
for which the expert advice of counsel
would be needed, nor stressed the fact that
the lineup involves a personal confrontation
between the prosecution and the defendant
himself. The opinion was, in short, well
susceptible of the interpretation that our
dictum in Thornton gave it—that the Sixth
Amendment requires counsel's presence as
a witness at post-arraignment proceedings
whenever that is necessary to enable the
fairness or accuracy of those proceedings
to be effectively challenged at trial.
As we later learned, however, this inter-
pretation of Wade was mistaken—or in any
event superseded. In United States v.
Ash, 461 F.2d 92 (D.C.Cir.1972) (en banc),
we were confronted with the question
whether right to counsel obtained at a post-
indictment, pretrial photograph display for
witness identification of a suspected of-
fender. Relying upon the analysis of
Wade, the five-to-four majority opinion
held that it did. The Supreme Court re-
versed, United States v. Ash, 413 U.S. 300,
93 S.Ct. 2568, 37 1.Ed.2d 619 (1973), de-
scribing the essence of the majority's error
as follows:
We conclude that the dangers of mis-
taken identification, mentioned in Wade,
were removed from context by the Court
of Appeals and were incorrectly utilized
13. The dissent’s analysis of Ask omits all refer-
ence to the statements of the Court's conclu-
sions quoted in this paragraph, relying instead
upon the opinion’s earlier description of Wade
and upon Justice Brennan's dissent. Dissent at
1162-1163. As we acknowledge, the dictum in
Wade may be regarded as incompatible with the
holding of Ash. The dissent overlooks the fact
that Ash was the later case, and that Justice
Brennan's dissent was a dissent. The position
of the present dissent is in fact a faithful repro-
duction of the position of the majority of this
court in Ash, that “the difficulty of reconstruct-
ing” events, 461 F.2d at 100, calls forth the right
as a sufficient basis for requiring coun-
sel. Although Wade did discuss possibil-
ities for suggestion and the difficulty for
reconstructing suggestivity, this discus-
sion occurred only after the Court had
concluded that the lineup constituted a
trial-like confrontation, requiring the
“Assistance of Counsel” to preserve the
adversary process by compensating for
advantages of the prosecuting authori-
ties.
413 U.S. at 314, 93 S.Ct. at 2576. In the
case of the lineup involved in Wade, the
Court said, “[t]he similarity to trial was
apparent, and counsel was needed to ren-
der ‘Assistance’ in counterbalancing any
‘overreaching’ by the prosecution.” Id. In
the case of photo displays, on the other
hand, “[s]ince the accused himself is not
present ... no possibility arises that the
accused might be misled by his lack of
familiarity with the law or overpowered by
his professional adversary.” Id. at 317, 93
S.Ct. at 2577. The right to counsel there-
fore did not apply.!
[5] The dissenting Justices in Ash
claimed that the majority was rewriting
rather than applying Wade. 413 U.S. at
326-44, 93 S.Ct. at 2581-91 (Brennan, J.,
dissenting). Be that as it may, Ash sets
forth what is now unquestionably the gov-
erning test. See, e.g, Moore v. Illinois,
434 U.S. 220, 227 n. 3, 98 S.Ct. 458, 464 n.
3, 54 L.Ed.2d 424 (1977) (quoting extensive-
ly from Ash). It is a test under which, as
the initial criterion of Sixth Amendment
applicability, the accused must find himself
“confronted, just as at trial, by the proce-
dural system, or by his expert adversary,
to counsel. It is differentiated from that re-
versed opinion only in that it acknowledges (to
accommodate Ask) that the event must be one
at which the defendant was present. That dif-
ferentiation is of course utterly illogical. The
dissent does not explain why it is important to
have counsel present “to remedy the defendant's
comparative disadvantage as an observer,” Dis-
sent at 1163, when the defendant himself is
present at the unrecorded event, but not impor-
tant to have counsel present to remedy the de-
fendant’s absolute disadvantage as an observer
when he is not present, as in Ash.
1118
or by both.”
413 US. at 310, 93 S.Ct. at 2574.14 The
two elements of this criterion are repeated
several times later in the opinion, when the
Court says that “the accused [must] re-
quire[ ] aid in coping with legal problems or
assistance in meeting his adversary,” id. at
313, 93 S.Ct. at 2575, and that the Sixth
Amendment protection does not apply if
there is “no possibility ... that the accused
might be misled by his lack of familiarity
with the law or overpowered by his profes-
sional adversary,” id. at 317, 93 S.Ct. at
2577. Evidently, the defendant must be
confronted either with the need to make a
decision requiring distinctively legal ad-
vice—which may occur even in a context in
which the prosecutor or his agents are not
present—or with the need to defend him-
self against the direct onslaught of the
prosecutor—which may require some skills
that are not distinctively legal,’® such as
the quality mentioned in Wade, of being
“schooled in the detection of suggestive
influences,” 388 U.S. at 230, 87 S.Ct. at
1934 (footnote omitted).
[6] It is obvious that neither condition
exists here. Byers was confronted by the
14. If this initial criterion is met, yet a second
inquiry must be made before a constitutional
right to counsel can be found to exist: whether
“the subsequent trial would cure a one-sided
confrontation between prosecuting authorities
and the uncounseled defendant.” United States
v. Ash, supra, 413 U.S. at 315, 93 S.Ct. at 2576.
If so, the confrontation “cease[s] to be ‘crit-
ical,’ ” id. at 316, 93 S.Ct. at 2577, and counsel is
not required. It is this second step which the
Ash court said the Wade court was taking when
it distinguished the lineup from such other pre-
paratory stages as fingerprint or blood analysis
on the ground that cross-examination or rebut-
tal witnesses could remedy any defects in the
latter. Id. at 314-16, 93 S.Ct. at 2576-77.
15. Since this elaboration is part of the rationale
of Ash, it is difficult to understand why the
dissent believes United States v. Henry, 447 U.S.
264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), can
be regarded as modifying Ask by finding a right
to counsel “even though no legal advice was
required.” Dissent at 1163. Henry involved
placing in the defendant's jail cell an informer
who was to be compensated “only if he produc-
ed useful information.” 447 U.S. at 270, 100
S.Ct. at 2186. The Court said that “[e]ven if the
[federal] agent's statement that he did not in-
tend that Nichols [the informer] would take
affirmative steps to secure incriminating infor-
United States v. Ash, supra,
740 FEDERAL REPORTER, 2d SERIES
procedural system at the point at which he
had to decide whether to raise the insanity
defense, a determination that would have
several legal consequences, including the
likelihood of a court order that he undergo
psychiatric examination, see Fed.R.Crim.P.
12.2(c). At that stage, assistance of coun-
sel was provided. He was likewise con-
fronted by the procedural system at the
point at which he had to decide whether to
introduce psychiatric testimony on his own
behalf—which would have the effect of
permitting the Government to introduce
psychiatric testimony to the contrary.
There also, assistance of counsel was pro-
vided. But at the psychiatric interview it-
self, he was not confronted by the proce-
dural system; he had no decisions in the
nature of legal strategy or tactics to
make—not even, as we have seen, the deci-
sion whether to refuse, on Fifth Amend-
ment grounds, to answer the psychiatrist's
questions. The only conceivable role for
counsel at the examination would have
been to observe. Appellant acknowledges
as much. See Memorandum in Support of
Petition for Rehearing at 10.
mation is accepted, he must have known that
such propinquity likely would lead to that re-
sult.” Id. at 271, 100 S.Ct. at 2187. It noted that
“according to his own testimony, Nichols was
not a passive listener,” id., and rested its holding
upon the fact that “confinement may bring into
play subtle influences that will make [the de-
fendant] particularly susceptible to the ploys of
undercover Government agents,” id. at 274, 100
S.Ct. at 2188. In short, Henry found that a
lawyer would have been of assistance in detect-
ing and resisting tricks to elicit testimony not
required by law, just as a lawyer would have
been of assistance in Wade in detecting and
resisting suggestive influences. If, as the dis-
sent believes, the constitutionally required func-
tion of counsel can be merely to record rather
than to intervene in events, the Court's consider-
able inquiry into whether the informer sought
to elicit the confession would have been irrele-
vant. Surely an accurate record of the confes-
sion itself is at least as important as an accurate
record of whether it was obtained by a “ploy.”
Nor do we understand the dissent’s assertion
that the baiting of Henry by a paid government
informer did not constitute a “direct onslaught
of the prosecutor.” Qui facit per alium facit per
se.
int at which he
se the insanity
at would have
including the
at he undergo
Fed.R.Crim.P.
itance of coun-
likewise con-
ystem at the
ide whether to
ny on his own
the effect of
to introduce
the contrary.
nsel was pro-
¢ interview it-
by the proce-
cisions in the
or tactics to
seen, the deci-
Fifth Amend-
psychiatrist’s
rable role for
would have
acknowledges
in Support of
hve known that
lead to that re-
7. It noted that
y, Nichols was
sted its holding
may bring into
make [the de-
to the ploys of
id. at 274, 100
found that a
tance in detect-
testimony not
‘er would have
detecting and
If, as the dis-
required func-
record rather
ourt’s consider-
former sought
hve been irrele-
of the confes-
as an accurate
ed by a “ploy.”
ent's assertion
id government
irect onslaught
alium facit per
"UNITED STATES v. BYERS 1119
Cite as 740 F.2d 1104 (1984)
dissent in our opinion in Thornton v. Cor-
coran, supra. Id. at 470 n. 14.16
The foregoing discussion explains why
the holding of Estelle ». Smith, supra, has
relevance to this case. There counsel had
not been advised, in advance of his client's
pretrial psychiatric examination to deter-
mine competency to stand trial, that the
psychiatrist would attempt to assess in ad-
dition the accused’s future dangerousness,
for use in any subsequent sentencing hear-
ing—which use was later made. The ac-
cused had neither pleaded insanity nor giv-
en any notice of intent to plead insanity,
and clearly had a Fifth Amendment right
to decline to undergo the psychiatric in-
quiry for sentencing purposes. In that in-
- quiry, therefore, although the defendant
was not confronted by his adversary he
was confronted “by the legal system,” in
that he had a law-related choice before him,
and could have profited from the expert
advice of counsel “in making the signifi-
cant decision of whether to submit to the
examination and to what end the psychia-
trist’s findings could be employed,” 451
U.S. at 471, 101 S.Ct. at 1877. It was that,
and that alone which (given the importance
of the matter involved) caused the inter-
view “to be a ‘critical stage’ of the aggre-
gate proceedings against respondent,” id.
at 470, 101 S.Ct. at 1876—which is why the
Court described its holding as affirming a
Sixth Amendment right to assistance of
counsel “before submitting to the . .. psy-
chiatric interview,” id. at 469, 101 S.Ct. at
1876 (emphasis added). The Court specifi-
cally disavowed any implication of a “con-
stitutional right to have counsel actually
present during the examination,” citing the
16. It is clear from the context of this statement
in Estelle, as well as from the citation to the
dissent in Thornton, that the Court was disavow-
ing any Sixth Amendment right during the psy-
chiatric interview. The line it drew was one
between the right to counsel before the inter-
view and the right to counsel during the inter-
view—rather than, as the dissent would have it,
between the right to assistance of counsel in
person and the right to assistance of counsel
through the device of a tape recording. The
referenced page in then Judge Burger's Thorn-
ton dissent stated:
There is no legal basis for equating a Medi-
cal Staff Conference to a “confrontation”. . ..
As for the alternative condition for re-
quired assistance of counsel—that the de-
fendant find himself “confronted . . . by his
expert adversary” or “by his professional
adversary”’—that did not exist here either.
An examining psychiatrist is not an adver-
sary, much less a professional one. Nor is
he expert in the relevant sense—that is,
expert in “the intricacies of substantive
and procedural criminal law.” Kirby wv.
Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877,
1882, 32 L.Ed.2d 411 (1972) (plurality opin-
ion). Appellant asserts the contrary, on
the basis of language contained in that
portion of the Estelle opinion dealing with
the Fifth Amendment rather than the Sixth
Amendment claim. The irrelevance of that
language is apparent when it is quoted in
full:
That respondent was questioned by a
~ psychiatrist designated by the trial court
to conduct a neutral competency exami-
nation, rather than by a police officer,
government informant, or prosecuting at-
torney, is immaterial. When Dr. Grigson
went beyond simply reporting to the
court on the issue of competence and
testified for the prosecution at the penal-
ty phase on the crucial issue of respon-
dent's future dangerousness, his role
changed and became esSentially like that
of an agent of the State recounting un-
warned statements made in a postarrest
custodial setting. During the psychiatric
evaluation, respondent assuredly was
“faced with a phase of the adversary
The vice of requiring a sensitive diagnostic
process to be conducted as though it were an
adversary matter seems too obvious to need
discussion. The value of that process is un-
dermined by anything which inhibits the free
exchange of views; the integrity of the pro-
cess makes privacy imperative.
Thornton wv. Corcoran, 407 F.2d 695, 708, 711
(D.C.1969) (Burger, J., dissenting). Thus, in re-
lying upon Estelle to establish a Sixth Amend-
ment right, the dissent finds the Supreme Court
to have held what it specifically disavowed hold-
ing. See Dissent at 1161-1162.
1120
system” and was “not in the presence of
[a] perso[n] acting solely in his interest.”
Estelle v. Smith, supra, 451 U.S. at 467,
101 S.Ct. at 1875, quoting Miranda v. Ari-
zona, supra, 384 U.S. at 469, 86 S.Ct. at
1625. All this establishes is that the psy-
chiatrist’s “role changed” and became “like
that of an agent of the state” when he
testified. Far from proving that he was
the defendant's “expert adversary” during
the examination, it suggests just the oppo-
site. As for the observation that the psy-
chiatrist was not “acting solely in [the de-
fendant’s] interest” during the examina-
tion, and that the examination was “a
phase of the adversary system”: The same
can be said of us judges and of the proceed-
ings in which we participate—yet we are
surely not the “professional adversaries”
Ash had in mind, because we (like the ex-
amining psychiatrist up until the point of
his testimony) do not participate as adver-
saries. The fact is that the Fifth Amend-
ment issue under discussion in this portion
of Estelle, namely, whether the interroga-
tion was sufficiently “custodial” to require
warnings against self-incrimination, see Mi-
randa v. Arizona, supra, 384 U.S. at 444,
86 S.Ct. at 1612, is quite different from the
Sixth Amendment issue of whether the in-
terrogator is the defendant’s “professional
adversary.” The test used for the one
should not be expected to be the test used
for the other—as the language of Estelle
confirms. Even if the opinion had, in the
Fifth Amendment context, unrealistically
given psychiatrists the same “professional
adversary” label, one could not transfer
that label to the Sixth Amendment portion
of the opinion without attributing to the
Court a decision it simply did not have in
mind. Indeed, if the Fifth Amendment por-
tion of Estelle had established what the
dissent suggests, the Sixth Amendment
portion could have been significantly short-
ened, thusly: “Since, as noted above, the
defendant was confronted by his profes-
sional adversary, Sixth Amendment protec-
tions applied as well.” In fact, however,
the Court found it necessary to establish
another ground for application of the coun-
sel guarantee—explicitly noting, in the pro-
- 1171-1173,
740 FEDERAL REPORTER, 2d SERIES
cess, that it was not finding any right to
counsel during the psychiatric interview.
451 U.S. at 470 n. 14, 101 S.Ct. at 1876 n.
14. - an rt
Even if a psychiatric interview otherwise
met one of the two theoretical tests for
Sixth Amendment protection, it would be
relevant to consider the pragmatic effects
of presence of counsel upon the process.
The Sixth Amendment, like the Fifth (as we
have earlier discussed), is not oblivious to
practical consequences. In Wade, for ex-
ample, the Court felt constrained to note
that “[nJo substantial countervailing policy
considerations have been advanced against
the requirement of the presence of coun-
sel.” 388 U.S. at 237, 87 S.Ct. at 1937.
That is not so here. The “procedural sys-
tem” of the law, which is one justification
for the presence of counsel and which, by
the same token, the presence of counsel
brings in its train, is evidently antithetical
to psychiatric examination, a process infor-
mal and unstructured by design. Even if
counsel were uncharacteristically to sit si-
lent and interpose no procedural objections
or suggestions, one can scarcely imagine a
successful psychiatric examination in which
the subject’s eyes move back and forth
between the doctor and his attorney. Nor
would it help if the attorney were listening
from outside the room, for the subject's
attention would still wander where his eyes
could not. And the attorney’s presence in
such a purely observational capacity, with-
out ability to advise, suggest or object,
would have no relationship to the Sixth
Amendment’s “Assistance of Counsel.”
The last point is an additional reason for
rejecting the appellant’s and the dissent’s
suggestion that the Sixth Amendment re-
quires the psychiatric interview to be re-
corded. Memorandum in Support of Peti-
tion for Rehearing at 11-12; Dissent at
Whatever the feasibility of
such a practice, we can find no basis for it
in the Sixth Amendment. Its only utility
would be to record events (the precise
questions of the psychiatrist and the pre-
cise responses of the defendant) that are
otherwise difficult to reconstruct. But as
g any right to
htric interview.
R.Ct. at 1876 n.
iew otherwise
etical tests for
n, it would be
hgmatic effects
bn the process.
he Fifth (as we
ot oblivious to
Wade, for ex-
rained to note
ervailing policy
vanced against
sence of coun-
S.Ct. at 1937.
procedural sys-
ne justification
and which, by
ce of counsel °
tly antithetical
process infor-
sign. Even if
ically to sit si-
ural objections
cely imagine a
nation in which
ack and forth
attorney. Nor
were listening
the subject’s
where his eyes
's presence in
capacity, with-
est or object,
to the Sixth
Counsel.”
bnal reason for
the dissent’s
mendment re-
iew to be re-
pport of Peti-
2; Dissent at
feasibility of
no basis for it
ts only utility
(the precise
and the pre-
dant) that are
truct. But as
UNITED STATES v. BYERS 1121
Cite as 740 F.2d 1104 (1984)
Ash made completely clear, “lack of scien-
tific precision and inability to reconstruct
an event are not the tests” for application
of the Sixth Amendment guarantee.” 413
U.S. at 316, 93 S.Ct. at 2577. They are not
the tests because preservation of evidence
for trial is not the Amendment’s purpose.
In Wade, for example, the reason for re-
quiring attendance of counsel was not that
he might silently witness the lineup, but
that he might “serve both his client’s and
the pros. cution’s interests by objecting to
suggestive features of a procedure before
they influence a witness’ identification.”
Moore v. Illinois, 434 U.S. 220, 225, 98
S.Ct. 458, 463, 54 L.Ed.2d 424 (1977), citing
United States v. Wade, supra; 388 U.S. at
236, 238, 87 S.Ct. at 1937, 1938. See also
434 U.S. at 230, 98 S.Ct. at 465. Using the
guarantee of counsel for the purpose of
preserving evidence would make “[a] sub-
stantial departure from the historical test,”
and convert the Sixth Amendment into “a
generalized protection of the adversary
process.” United States v. Ash, supra,
413 U.S. at 317, 93 S.Ct. at 2577. If record-
ing the psychiatric examination here would
provide effective “Assistance of Counsel,”
in the constitutional sense, by simply help-
ing the defense attorney to establish the
true facts (both of the accuracy of the
psychiatrist's diagnosis and of the defend-
ant’s statements upon which that diagnosis
was based); so would the recording of all
witness interviews conducted by the prose-
cution, some of which can be even more
crucial to the defendant, because of the
risk of suggestiveness or coaching that can
fix the witness’s testimony and distort sub-
sequent recollection. If the discussion at
this point seems reminiscent of our earlier
discussion concerning the Fifth Amend-
ment, it is because the suggestion of re-
cording as a substitute for assistance of
counsel, like the suggestion of recording as
a substitute for testimonial immunity,
makes the consideration of one constitu-
17. As Ash went on to explain, the facility of
reconstructing an event is a consideration that
can eliminate a right to counsel that would
otherwise attach. When any mistakes which
counsel might have prevented are readily detect-
tional guarantee the occasion for creation
of limitations that serve an entirely unre-
lated constitutional purpose. See pages
1114-1115, supra.
Recording psychiatric interviews may be
a good idea, but not all good ideas have
been embodied in the Constitution in gener-
al or the Sixth Amendment in particular.
It is enough, as far as the constitutional
minima of the criminal process are con-
cerned, that the defendant has the opportu-
nity to contest the accuracy of witnesses’
testimony by cross-examining them at trial,
and introducing his own witness in rebut-
tal. And it is enough that Byers had the
opportunity to contest the accuracy of both
the details and the conclusion of Dr. Ku-
nev’s analysis by cross-examining him
(pointing out, as he did, that the crucial
statement on which Kunev based his con-
clusion was not reflected in the psychia-
trist’s summary of the interview), by him-
self denying the statements attributed to
him, by introducing other witnesses to
show that the statement Kunev attributed
to him was not true (as again he did, intro-
ducing his wife to testify that she had not
first suggested the theory of “spell”), and
by introducing the contrary conclusion of
other psychiatrists.
This Sixth Amendment claim, like the
Fifth Amendment claim we discussed earli-
er, has been squarely addressed and uni-
formly rejected by other circuits. See
United States v. Bohle, supra, 445 F.2d at
67, United States v. Smith, supra, 436
F.2d at 790; United States v. Baird, su-
pra, 414 F.2d at 711-12; United States .
Albright, supra, 388 F.2d at 726-27; ac-
cord, United States v. Cohen, supra, 530
F.2d at 48; United States v. Greene, 497
F.2d 1068, 1079-80 (7th Cir.1974), cert. de-
nied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d
839 (1975); United States v. Trapnell, 495
F.2d 22, 24-25 (2d Cir.1974); United States
ex rel. Wax v. Pate, 409 F.2d 498 (7th
able, “the opportunity to cure defects at trial
causes the confrontation to cease to be ‘crit-
ical” for Sixth Amendment purposes. 413 U.S.
at 316, 93.5.C1. at 2577.
a
1122
Cir.1969). We join them for de reasons
set forth above.
THE SUPERVISORY POWER
[7] Explicit appeal to the court’s super-
visory power to exclude evidence was not
made in the trial court, and the issue has
been briefed here only by our express invi-
tation. In our view the issue is not proper-
ly before us, since the defendant did not
even raise below any concerns that are the
proper object of that power. We add this
section to our opinion to demonstrate the
latter point, which demonstration is simul-
taneously a response to the dissent’s argu-
ment on the merits.
The d “sent argues that we have authori-
ty to implement “good ideas” under our
supervisory power, Dissent at 1173, and
proceeds to discuss this issue as though the
question were whether a district judge,
when ordering required psychiatric inter-
views, could and should require taping (or,
as Judge Edwards would have it, merely
some record). Whatever may be the prop-
er resolution of that question—for which
purpose there should be considered not
only the majority’s dictum in Thornton wv.
Corcoran, 407 F.2d 695, 702 (D.C.Cir.1969),
which the dissent cites, but also the dissent
of then Judge Burger in the same case, 1d.
at 703-04, 709-11, which was cited approv-
ingly by the Supreme Court in Estelle,
supra, 451 U.S. at 470 n. 14, 101 S.Ct. at
1876 n. 14—it happens not to be the ques-
tion before us here. Any supervisory pow-
er the district court may possess with re-
gard to the ordering of psychiatric exami-
nations was in fact not used to implement
the dissent’s “good idea,” and the issue
here presented is whether the district
court’s supervisory power with regard to
the conduct of trial could and must have
been used to exclude incriminating evi-
dence because of lack of taping. That is-
sue is not even doubtful.
[T]he court’s inherent power to refuse to
receive material evidence is a power that
must be sparingly exercised. ...
The function of a criminal trial is to
seek out and determine the truth or falsi-
740 FEDERAL REPORTER, 2d SERIES
oe of the charges brought against the
defendant. Proper fulfillment of this
function ‘requires that, constitutional
limitations aside, all relevant, competent
evidence be admissible, unless the man-
ner in which it had been obtained—for
‘example, by violating some statute or
rule of procedure—compels the formula-
tion of a rule excluding its introduction
in a federal court.
Lopez v. United States, 373 U.S. 421, 440,
83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963).
The Supreme Court’s last holding sanction-
ing the use of the supervisory power to
exclude evidence is now almost twenty-five
years old. Elkins v. United States, 364
U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669
(1960). That case involved evidence ac-
quired by the government through uncon-
stitutional means. More recent cases make
it clear that not even all cases of illegal
acquisition—and indeed not even all cases
of unconstitutional acquisition—justify ex-
clusion. In United States v. Payner, 447
U.S. 727, 735, 100 S.Ct. 2439, 2446, 65
L.Ed.2d 468 (1980), the Court held that “the
supervisory power does not authorize a
federal court to suppress otherwise admis-
sible evidence on the ground that it was
seized unlawfully from a third party not
before the court.” That opinion contains
the following analysis relevant to the
present question (and perhaps relevant as
well to the quite different exercise of the
supervisory power which the dissent ad-
dresses):
The values assigned to the competing
interests do not change because a court
has elected to analyze the question under
the supervisory power instead of the
Fourth Amendment." In either case, the
need to deter the underlying conduct and
the detrimental impact of excluding the
evidence remain precisely the same.
Id. at 736, 100 S.Ct. at 2447. Here the
dissent seeks to make up the deficiencies in
its Fifth and Sixth Amendment analysis by
shifting the context of the discussion to the
supervisory power. Payner holds that can-
not be done.
against the
ent of this
onstitutional
, competent
ss the man-
btained—for
p statute or
he formula-
introduction
S. 427, 440,
H 462 (1963).
ng sanction-
ry power to
twenty-five
States, 364
.Ed.2d 1669
evidence ac-
ough uncon-
cases make
es of illegal
en all cases
justify ex-
Payner, 447
89, 2446, 65
eld that “the
authorize a
rwise admis-
that it was
d party not
lion contains
ant to the
b relevant as
ercise of the
dissent ad-
e competing
ause a court
hestion under
tead of the
er case, the
conduct and
xcluding the
e same.
[. Here the
leficiencies in
t analysis by
fussion to the
lds that can-
UNITED STATES v. BYERS
1123
Cite as 740 F.2d 1104 (1984)
It is in fact difficult to imagine a less
auspicious case for invocation of the super-
visory power to exclude evidence. In the
first case in which the Supreme Court in-
voked the doctrine, applying it to exclude
testimony based upon unconstitutionally
seized evidence, the expressed justification
was that only by depriving unlawful police
conduct of its benefits could it be deterred.
McNabb v. United States, 318 U.S. 332,
340-47, 63 S.Ct. 608, 612-16, 87 L.Ed. 819
(1943). Here, by contrast, the dissent (to
the extent it is addressing concerns other
than Fifth and Sixth Amendment concerns
impermissibly smuggled in under the cover
of supervisory power) proposes that we set
a convicted murderer free in order to de-
ter ourselves from inadequate use of our
supervisory power over psychiatric exami-
nations.
In sum: Assuming (as we do not believe
to be true) that it was an abuse of discre-
tion for the district court not to have used
supervisory power over court-ordered psy-
chiatric examinations to require taping (or
recording), a challenge could have been
raised by resisting the allegedly improper
examination on that ground. That was not
done. The only issues now before the
court are (1) whether a Fifth or Sixth
Amendment violation has occurred—ac-
knowledged bases for excluding the evi-
dence thus obtained, and (2) whether the
permissible purposes for use of the super-
visory power over trial, i.e., purposes other
than meeting the same concerns addressed
by the Fifth and Sixth Amendments, see
United States v. Payner, supra, required
its application to exclude the evidence here.
We addressed the first issue in the earlier
sections of this opinion. As to the latter,
no conceivable permissible purpose exists
in this case (where no unlawful activity has
occurred) except self-deterrence. One can
hardly consider that.enough to comply with
the Supreme Court’s instruction that the
exclusionary rule should be “restricted to
those areas where its remedial objectives
1. See Supplemental Brief for Appellant at 30-38;
Supplemental Brief for Appellee at 1-16.
2. Supplemental Brief for Appellant at 30.
are thought most efficaciously served.”
United States v. Calandra, 414 U.S. 338,
348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561
(1974). Even if one believes that mandat-
ing taping (or recording) of psychiatric in-
terviews would be a “good idea,” setting
aside this murder conviction for the failure
to implement that idea would seem to us a
prime example of what the Supreme Court
has disapprovingly called “unbending appli-
cation of the exclusionary sanction to en-
force ideals of governmental rectitude.”
United States v. Payner, supra, 447 U.S.
at 734, 100 S.Ct. at 2445.
Affirmed.
SPOTTSWOOD W. ROBINSON, III,
Chief Judge, with whom J. SKELLY
WRIGHT, Circuit Judge, joins, concurring
in the judgment:
Two principal issues have been placed
before the court. One is whether the
Government contravened the Sixth Amend-
ment by conducting Byers’ court-ordered
psychiatric examination in the absence of
his lawyer and without recording his inter-
views with the governmentally-employed
psychiatrist.! Byers argues that these
omissions eviscerated his right to assist-
ance of counsel by stripping his attorney of
any meaningful opportunity to cross-exam-
ine the psychiatrist at trial? The second
issue proffered is whether the Fifth
Amendment was infringed by testimony of
the psychiatrist which significantly imped-
ed Byers’ attempt to negate criminal
charges by establishing an insanity de-
fense.?
Though the court splits sharply on deci-
sion of these questions, the great majority
of my colleagues believe they are properly
before us. I am unable to concur in this
determination. Because Byers neglected
"to raise either the Fifth or Sixth Amend-
ment issue before the District Court, I
would adhere to traditional canons of feder-
3. See Supplemental Brief for Appellant at 14-29;
Supplemental Brief for Appellee at 1-16.
1124
al jurisprudence and decline to entertain
them now.
I. OBJECTIONS IN THE DisTrICT COURT
During the course of the District Court
proceedings, Byers made three objections
implicating significantly the psychiatric ex-
amination of which he now complains. The
first occurred several months before trial
when the Government moved for, and the
court ordered, Byers’ temporary commit-
ment to a federal facility at Springfield,
Missouri, for such an examination. Byers
resisted the motion on the grounds that
this was unnecessary in light of his earlier
examination at Saint Elizabeths’ Hospital,
in Washington, D.C., and that the remote-
ness of Springfield would subject him to
needless hardship.*
During trial, an objection was registered
against the introduction of testimony by
Dr. Nicola Kunev, a psychiatrist employed
at Springfield, which hinted strongly that
Byers may, at his wife’s suggestion, have
concocted the theory of his insanity plea.
Byers opposed this testimony primarily on
the grounds that it lacked probative value
and was extremely prejudicial,’ and he at-
tempted to demonstrate that it was unrelia-
ble s—in his words, “total speculation.” ’
Transcript (Tr.) 5-7 (Jan. 27, 1977).
Tr. 69 (Feb. 7, 1978).
Tr. 68-133 (Feb. 7, 1978).
Tr. 89 (Feb. 7, 1978).
4
5
6
7. Tr. 88 (Feb. 7, 1978).
8
9 Record on Appeal (R.) 59 at 2.
10. 18 U.S.C. § 4244 (1982).
11. Byers previously had conceded that “[t]he
‘Sixth Amendment argument was first raised by
new counsel in the Petition for Rehearing.”
Memorandum in Support of Petition for Re-
hearing (filed July 28, 1981) at 24; accord, Peti-
tion for Rehearing and Suggestion for Rehear-
ing En Banc (filed Mar. 10, 1981) at 12 n. 5.
12. See Supplemental Brief for Appellant at 38.
13. Fed.R.Crim.P. 51, providing in full: Excep-
tions to rulings or orders of the court are
unnecessary and for all purposes for which an
exception has heretofore been necessary it is
740 FEDERAL REPORTER, 2d SERIES
Byers’ counsel also remarked briefly upon
the difficulty of cross-examination occa-
sioned by destruction of Dr. Kunev’s inter-
view notes and silence of the official inter-
view reports on this aspect of his testimo-
nyt oiroive: ? ; :
The third objection came at the close of
trial when, in support of a motion for a new
trial, Byers contended that the District
Court had admitted Dr. Kunev’s testimo-
ny ? in violation of a statute admonishing
that statements made by an accused to his
psychiatrist during an examination con-
ducted pursuant to its provisions “shall
[not] be admitted into evidence against the
accused on the issue of guilt in any crimi-
nal proceeding.” 1°
Contrary to an earlier representation to
this court,!! Byers now would have us find
that these three objections, cumulatively if
not singly, tendered his present constitu-
tional claims to the District Court suffi-
ciently to warrant their consideration on
appeal.’ In my view, they are wholly inad-
equate to that end.
Federal Criminal Rule 51 directs a party
not only to “make[ ] known to the court the
action which he desires the court to take or
his objection to the action of the court,” but
also to explicate “the grounds therefor.” 3
sufficient that a party, at the time the ruling
or order of the court is made or sought,
makes known to the court the action which he
desires the court to take or his objection to
the action of the court and the grounds there-
- for; but if a party has no opportunity to
object to a ruling or order, the absence of an
objection does not thereafter prejudice him.
In addition to promotion of the orderly admin-
istration of justice, see text infra at notes 29-38,
and prevention of “unfair prejudice to the
Government, see text infra at notes 39-42, this
rule was adopted to prevent defendants from
withholding objections for purposes of appeal
and meanwhile gambling on acquittal. See,
e.g., United States v. Smith, 160 U.S.App.D.C.
221, 226-227, 490 F.2d 789, 794-795 (1974);
United States v. Bamberger, 456 F.2d 1119, 1131
(3d Cir.1972), cert. denied, 413 U.S. 919, 93 S.Ct.
3067, 37 L.Ed.2d 1040 (1973), and sub nom.
"Elam v. United States, 406 U.S. 969, 92 S.Ct.
2424, 32 L.Ed.2d 668 (1972); United States v.
Greene, 578 F.2d 648, 654 (5th Cir.1978), cert.
denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d
96 (1979); McNeely v. United States, 353 F.2d
913, 917 (8th Cir.1965); United States v. Peter-
d briefly upon
hination occa-
Kunev’s inter-
official inter-
pf his testimo-
t the close of
tion for a new
the District
ev’s testimo-
admonishing
hccused to his
ination con-
isions ‘“‘shall
e against the
in any crimi-
resentation to
have us find
mulatively if
bent constitu-
Court suffi-
sideration on
p wholly inad-
rects a party
the court the
rt to take or
e court,” but
therefor.” 13
ime the ruling
de or sought,
ction which he
is objection to
grounds there-
ppportunity to
absence of an
prejudice him.
brderly admin-
pt notes 29-38,
judice to the
tes 39-42, this
fendants from
ses of appeal
quittal. See,
) U.S.App.D.C.
4-795 (1974);
.2d 1119, 1131
5.919, 93 S.Ct,
ind sub nom.
969, 92:8.1.
ted States v.
[ir.1978), cert.
h6, 59 L.Ed.2d
ates, 353 F.2d
tates v. Peter-
UNITED STATES v. BYERS 1125
Cite as 740 F.2d 1104 (1984)
This provision and its forerunners have
consistently been interpreted to require an
objection sufficiently clear and specific to
apprise the trial court and opposing counsel
of the claim distinctly, in order that the
purported error may be addressed and
hopefully cured at that time.!® Of equal
importance to this litigation are holdings of
the Supreme Court and other federal tribu-
nals that vague or general objections do
not suffice to preserve constitutional
sen, 611 F.2d 1313, 1332-1333 (10th Cir.1979),
cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64
L.Ed.2d 854 (1980); United States v. Stout, 667
F.2d 1347, 1354 (11th Cir.1982).
14. E.g., United States v. Lewis, 140 U.S.App.D.C.
40, 46, 433 F.2d 1146, 1152 (1970); Miller v.
Avirom, 127 U.S.App.D.C. 367, 370, 384 F.2d
319, 322 (1967); Johnston v. Reily, 82 U.S.App.
D.C. 6, 7, 160 F.2d 249, 250 (1947); Skiskowski
v. United States, 81 U.S.App.D.C. 274, 279, 158
F.2d 177, 182 (1946), cert. denied sub nom.
Quinn v. United States, 330 U.S. 822, 67 S.Ct.
769, 91 L.Ed. 1273 (1947); DeForest v. United
States, 11 App.D.C. 458, 460 (1897); Harney wv.
United States, 306 F.2d 523, 534 (1st Cir.), cert.
denied sub nom. O'Connell v. United States, 371
US. 911, 83 S.Ct. 254, 9 L.Ed.2d 171 (1962);
United States v. Bryant, 480 F.2d 785, 792 (2d
Cir.1973); United States v. Adamson, 665 F.2d
649, 660 (Sth Cir. en banc 1982), cert. denied, —
US. —, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983);
United States v. Rizzo, 418 F.2d 71, 78 (7th
Cir.1969), cert. denied sub nom. Tornabene v.
United States, 397 U.S. 967, 90 S.Ct. 1006, 25
L.Ed.2d 260 (1970); Dranow v. United States,
307 F.2d 545, 568 (8th Cir.1962); United States
v. Hubbard, 603 F.2d 137, 142 (10th Cir.1979).
15. Eg, Johnston v. Reily, supra note 14, 82
U.S.App.D.C. at 8, 160 F.2d at 251; DeForest v.
United States, supra note 14, 11 App.D.C. at 460;
Harney v. United States, supra note 14, 306 F.2d
at 534; United States v. Bryant, supra note 14,
480 F.2d at 792; United States v. Greenfield, 554
F.2d 179, 186 (5th Cir.1977), cert. denied, 439
US. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978);
United States v. Hubbard, supra note 14, 603
F.2d at 142. Fed.R.Civ.P. 46, by reference to
which interpretation of Fed.R.Crim.P. Rule 51 is
informed, see Notes of Advisory Committee on
Fed.R.Crim.P. 51; 3A C. Wright, Federal Prac-
tice § 841 at 284 (2d ed. 1982), similarly calls
for reasonably specific objections during trial
proceedings to preserve claims on appeal. Eg,
Koshorek v. Pennsylvania R.R., 318 F.2d 364,
371 (3d Cir.1963); Colonial Refrigerated Transp.,
Inc. v. Mitchell, 403 F.2d 541, 551-552 (5th Cir.
1968); Employers Mut. Cas. Co. v. Johnson, 201
F.2d 153, 155-156 (5th Cir.1953). These re-
claims; '® in such cases, “the orthodox rule
of evidence requiring specification of the
objection is buttressed by the uniform poli-
cy requiring constitutional questions to be
raised at the earliest possible stage in the
litigation.” 17 Tested by these standards, it
simply is not enough to say merely that
objections tendered to the District Court
may in some sense have “reflect[ed]’ 8
some of the concerns implicated by the
constitutional provision relied on.!?
quirements have long been deemed vital to
sound appellate practice:
The rule is universal that, where an objection
is so general as not to indicate the specific
grounds upon which it is made, it is unavail-
ing on appeal, unless it be of such a character
that it could not have been obviated at the
trial. The authorities on this point are all one
way. Objections to the admission of evidence
must be of such a specific character as to
indicate distinctly the grounds upon which
the party relies, so as to give the other side
full opportunity to obviate them at the time, if
under any circumstances that can be done.
Noonan v. Caledonia Mining Co., 121 U.S. 393,
400, 7 S.Ct. 911, 915, 30 L.Ed. 1061, 1063 (1887).
16. On Lee v. United States, 343 U.S. 747, 750 n.
3, 72 S.Ct. 967, 970 n. 3, 96 L.Ed. 1270, 1273 n.3
(1952) (“a general objection ... is insufficient to
preserve such a specific claim as violation of a
constitutional provision in obtaining the evi-
dence”), quoted in, e.g., United States v. Indivig-
lio, 352 F.2d 276, 279 (2d Cir.1965), cert. denied,
383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663
(1966); United States v. Lazarus, 425 F.2d 638,
642 (9th Cir.), cert. denied, 400 U.S. 869, 91 S.Ct.
102, 27 L.Ed.2d 108 (1970); Ignacio v. Territory
of Guam, 413 F.2d 513, 517 (9th Cir.1969), cert.
denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d
124 (1970). See also United States v. Lazarus,
supra, 425 F.2d at 642 (“[a] general objection is
not sufficient to raise a constitutional ques-
tion”). .
17. On Lee v. United States, supra note 16, 343
US. at 750 n. 3, 72 S.Ct. at 970 n. 3, 96 L.Ed. at
1273 n. 3, quoted in, e.g, United States v. Indi-
viglio, supra note 16, 352 F.2d at 279.
18. See Appellant's Supplemental Brief at 38.
19. There is an additional reason for declining
examination of Byers’ Fifth Amendment protest.
Not only did Byers fail to pursue this line of
attack in the District Court, but his cryptic allu-
sion to the Fifth Amendment in his first brief
before this court, see Brief for Appellant at
23-24, was insufficient even to raise the point
prior to submission of the appeal at the panel
level. See Fed.R.App.P. 28(a)(2), (b); D.C.Cir.R.
1126
Byers urges us to acknowledge Fifth and
Sixth Amendment rights which have yet to
be recognized by any federal court, and
which, if validated, would impose substan-
tial affirmative duties upon the Govern-
ment: Of the three objections proffered by
Byers to support the contention that he
presented his current claims to the District
Court, two may be dismissed out of hand.
Neither Byers’ objection to the Govern-
ment’s motion for commitment for the
Springfield examination nor his motion for
a new trial predicated on the alleged statu-
tory violation even remotely revealed or
suggested either of the constitutional thes-
es he now advances.
The third objection upon which Byers
relies—that particular testimony of Dr. Ku-
nev was inadmissible because it lacked pro-
bative value and was prejudicial—merits
closer scrutiny, but ultimately proves to be
no more beneficial to his cause. At no time
did Byers invoke either the Fifth or Sixth
Amendment eo nomine, or even hint that
he intended an objection of constitutional
dimensions. His counsel did observe brief-
ly that cross-examination of Dr. Kunev
would be hampered by the latter’s failure
either to preserve his interview notes or to
refer in official reports to the challenged
topic of the testimony. This was hardly
sufficient, however, to communicate the na-
ture and scope of Byers’ constitutional
claims to the court, or even to intimate that
- he thought the testimony would derogate
his privilege against self-incrimination or
trammel his right to assistance of coun-
sel.?? Indeed, if Byers had in mind a Fifth
8(b) (1980); Andrews v. Louisville & N. R.R,,
406 U.S. 320, 324-325, 92 S.Ct. 1562, 1565, 32
L.Ed.2d 95, 100 (1972); New York v. Kleinert,
268 U.S. 646, 651, 45 S.Ct. 618, 619, 69 L.Ed.
1135, 1137 (1925); .May v. United States, 84
U.S.App.D.C. 233, 328, 175 F.2d 994, 999, cert.
denied, 338 U.S. 830, 70 S.Ct. 58, 94 L.Ed. 505
(1949). Courts traditionally have refused to
consider issues presented for the first time on
rehearing, absent exceptional circumstances.
See, e.g., Bullock v. Mumford, 166 U.S.App.D.C.
51, 55, 509 F.2d 384, 388 (1974); Moore v. Unit-
ed States, 598 F.2d 439, 441 (5th Cir.1979); Unit-
ed States v. Sutherland, 428 F.2d 1152, 1158 (5th
Cir.1970), cert. denied, 409 U.S. 1078, 93 S.Ct.
698, 34 L.Ed.2d 668 (1972); United States v.
740 FEDERAL REPORTER, 2d SERIES
: ot Sixth Amendment foundation for the
objection, he could appropriately and much
more beneficially have made it before Dr.
Kunev began to testify.
Given these circumstances, I cannot be-
lieve that Byers presented the objection
with sufficient clarity and particularity to
apprise trial participants of the specific
constitutional components now claimed for
it. From all appearances, the objection
arose simply pursuant to Federal Evidence
Rule 403, which authorizes trial judges to
exclude relevant evidence “if its probative
value is substantially outweighed by the
danger of unfair prejudice.” 2! We should
not, by indulgence in vastly overgenerous
hindsight, construe it to germinate and pre-
serve Byers’ current Fifth and Sixth
Amendment positions.
II. APPLICATION OF FEDERAL CRIMINAL
RULE 52(b): THE PLAIN
ERROR DOCTRINE
Since Byers did not advance his constitu-
tional claims in the District Court, we are
not at liberty to consider them on appeal
unless the record discloses “plain error”
within the meaning of Federal Criminal
Rule 52(b). I am not persuaded that either
of the constitutional violations asserted by
Byers—if indeed they were that—rises to
the level of “plain” error. Consequently, I
would not entertain either the Fifth or the
Sixth Amendment arguments.
The Supreme Court and numerous other
federal courts have stated time and again
that the plain-error doctrine is to be used
Bohlmann, 625 F.2d 751, 754 (6th Cir.1980);
Stephens v. Arrow Lumber Co., 354 F.2d 732,
734 (9th Cir.1966); General Ins. Co. v. Pathfin-
der Petroleum Co., 145 F.2d 368, 373 (9th Cir.
1944), cert. denied, 324 U.S. 844, 65 S.Ct. 679, 89
L.Ed. 1406 (1945).
20. This conclusion is bolstered by the fact that
defense counsel's remarks, Tr. 89 (Feb. 7, 1978),
constituted only a tiny segment of a lengthy voir
dire. Tr. 68-133 (Feb. 7, 1978).
21. The Government appears to have so per-
ceived the objection, Tr. 90 (Feb. 7, 1978), and
defense counsel at no time indicated disagree-
ment with that understanding.
dation for the
jately and much
He it before Dr.
ps, I cannot be-
H the objection
particularity to
of the specific
ow claimed for
, the objection
ederal Evidence
trial judges to
if its probative
eighed by the
21 We should
ly overgenerous
minate and pre-
th and Sixth
RAL CRIMINAL
PLAIN
E
ce his constitu-
Court, we are
hem on appeal
“plain error”
deral Criminal
ded that either
bns asserted by
that—rises to
onsequently, I
he Fifth or the
S.
umerous other
ime and again
bis to be used
4 (6th Cir.1980);
p,,334F. 24 732,
s. Co. v. Pathfin-
68, 373 (9th Cir.
HH, 65 S.Ct. 679, 89
| by the fact that
89 (Feb. 7, 1978),
of a lengthy voir
).
to have so per-
eb. 7, 1978), and
dicated disagree-
UNITED STATES v. BYERS 1127
Cite as 740 F.2d 1104 (1984)
sparingly,?? and only in exceptional circum-
stances.” Advertently to this caveat, as
well as to the commonsense meaning of the
words “plain error,” these courts have rec-
ognized that obviousness of an alleged im-
propriety figures crucially in any plain-er-
ror determination. The instant case, I
submit, hardly qualifies for special treat-
ment on this score. Whatever constitution-
al transgression the District Court may
have tolerated during the trial proceedings,
it cannot fairly be characterized as obvious.
That the court today encounters difficul-
ty with both the Fifth and Sixth Amend-
ment question is itself proof that any con-
stitutional infirmity in the Springfield ex-
amination procedures or their testimonial
products is far from clear. Additionally,
no federal court has yet accepted the iden-
tical or any substantially similar Fifth
Amendment argument,” and every such
court reaching the Sixth Amendment issue
22. United States v. Frady, 456 U.S. 152, 163 n.
14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816,
827 n. 14 (1982); United States v. Blackwell, 224
U.S.App.D.C. 350, 366, 694 F.2d 1325, 1341
(1982); United States v. King, 505 F.2d 602, 605
(Sth Cir.1974); United States v. Greene, 497 F.2d
1068, 1077 (7th Cir.1974), cert. denied, 420 U.S.
909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United
States v. Van Horn, 553 F.2d 1092, 1094 (8th
Cir.1977); 3A C. Wright, supra note 15, § 856 at
338.
23. United States v. Frady, supra note 22, 456
U.S. at 163 n. 13, 102 S.Ct. at 1592 n. 13, 71
L.Ed.2d at 827 n. 13; United States v. Atkinson,
297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed.
555, 557 (1936); United States v. Blackwell, su-
pra note 22, 224 U.S.App.D.C. at 366, 694 F.2d at
1341; McMillen v. United States, 386 F.2d 29, 35
(1st Cir.1967), cert. denied, 390 U.S. 1031, 88
S.Ct. 1424, 20 L.Ed.2d 288 (1968); United States
v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981);
United States v. Rudinsky, 439 F.2d 1074, 1076
(6th Cir.1971); United States v. Greene, supra
note 22, 497 F.2d at 1077; Petschl v. United
States, 369 F.2d 769, 773 (8th Cir.1966); United
States v. Sims, 617 F.2d 1371, 1377 (9th Cir.
1980); 3A C. Wright, supra note 15, § 856 at
338.
24. E.g, United States v. Frady, supra note 22,
456 U.S. at 163 & n. 13, 102 S.Ct. at 1592 & n.
13, 71 L.Ed.2d at 827 & n. 13; United States v.
Atkinson, supra note 23, 297 U.S. at 160, 56 S.Ct.
at 392, 80 L.Ed. at 557; United States v. Black-
well, supra note 22, 224 U.S.App.D.C. at 367, 694
F.2d at 1342; United States v. McCord, 166 U.S.
App.D.C. 1, 8 n. 10, 509 F.2d 334, 341 n. 10 (en
Byers tenders has resolved it adversely to
his position #—facts further confirming
that the validity of his claims is not obvi-
ous.” We ourselves have held that pur-
ported constitutional error is not made
“plain,” within the meaning of Rule 52(b),
simply by the circumstance that the claim
is novel. If asserted error is not “plain”
merely because no federal court has yet
addressed the issue, surely it cannot be
“plain” when federal courts repeatedly and
uniformly have resolved the issue unfavor-
ably to the claimant.
Complementary to lack of obviousness,
an even more fundamental principle impels
me to the conclusion that Byers’ belatedly-
posed constitutional issues should not be
examined under the plain-error doctrine.
As I had recent occasion to observe,? it is a
well-established principle of federal juris-
prudence that courts will not decide a ques-
banc 1974), cert. denied, 421 U.S. 930, 95 S.Ct.
1656, 44 L.Ed.2d 87 (1975); United States v.
Edgewood Health Care Center, 608 F.2d 13, 14
(1st Cir.1979), cert. denied, 444 U.S. 1046, 100
S.Ct. 734, 62 L.Ed.2d 732 (1980); United States
v. O'Connor, 237 F.2d 466, 472 (2d Cir.1956);
United States v. Rad-O-Lite of Philadelphia, 612
F.2d 740, 743 (3d Cir.1979); United States v.
Chaney, supra note 23, 662 F.2d at 1152; United
States v. Greene, supra note 22, 497 F.2d at 1677;
United States v. Stout, supra note 13, 667 F.2d at
1354.
25. United States v. Weiser, 428 F.2d 932, 936 (2d
Cir.1969), cert. denied, 402 U.S. 949, 91 S.Ct.
1606, 29 L.Ed.2d 119 (1971); United States v.
Reifsteck, 535 F.2d 1030, 1033 (8th Cir.1976);
United States v. Handy, 454 F.2d 885, 888-889
(9th Cir.1971), cert. denied, 409 U.S. 846, 93 S.Ct.
49, 34 L.Ed.2d 86 (1972).
26. E.g., United States v. Baird, 414 F.2d 700,
711-712 (2d Cir.1969), cert. denied, 396 U.S.
1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970); Unit-
ed States v. Albright, 388 F.2d 719, 726 (4th
Cir.1968); United States v. Cohen, 530 F.2d 43,
48 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct.
149, 50 L.Ed.2d 130 (1976).
27. See Page v. United States, 282 F.2d 807, 811
(8th Cir.1960).
28. Blackwell v. United States, supra note 22, 224
U.S.App.D.C. at 367, 694 F.2d at 1342.
29. Id. at 369, 694 F.2d at 1344 (concurring opin-
ion).
1128
tion raised initially on appeal absent a
record adequate enough to ensure its
sound resolution.?® The concerns prompt-
ing this salutary rule are apparent. Our
duty to the parties, as well as allegience to
the adjudicative process, demands that we
strive continually for sensitive, informed
and accurate decisionmaking, especially
with respect to complex constitutional is-
sues.3! Beyond that, it would unjustifiably
penalize the Government to resolve any
matter adversely to its interests when the
accused’s procedural default has robbed it
30. United States v. Lewis, supra note 14, 140
U.S.App.D.C. at 46, 433 F.2d at 1152; Wash-
ington v. United States, 134 U.S.App.D.C. 223,
225-226, 414 F.2d 1119, 1121-1122 (1969); Gray
v. United States, 114 U.S.App.D.C. 77, 78, 311
F.2d 126, 127 (1962), cert. denied, 374 U.S. 838,
83 S.Ct. 1886, 10 L.Ed.2d 1057 (1963); United
States v. Bryant, supra note 14, 480 F.2d at
792-793; United States v. D'Amico, 408 F.2d 331,
332 (2d Cir.1969); United States v. Weldon, 384
F.2d 772, 775 (2d Cir.1967); United States v.
Gitlitz, 368 F.2d 501, 504 (2d Cir.1966), cert.
denied, 386 U.S. 1038, 87 S.Ct. 1492, 18 L.Ed.2d
602 (1967); United States v. Sten, 342 F.2d 491,
493 (2d Cir.), cert. denied, 382 U.S. 854, 86 S.Ct.
103, 15 L.Ed.2d 91 (1965); United States v.
Meadows, 523 F.2d 365, 368 (Sth Cir.1975), cert.
denied, 424 U.S. 970, 96 S.Ct. 1469, 47 L.Ed.2d
738 (1976); Sykes v. United States, 373 F.2d 607,
612-613 (5th Cir.1966), cert. denied, 386 U.S.
977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967); Unit-
ed States v. Easter, 539 F.2d 663, 665 (8th Cir.
1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54
L.Ed.2d 109 (1977); Clay v. United States, 394
F.2d 281, 283-284 (8th Cir.1968), cert. denied,
393 U.S. 926, 89 S.Ct. 260, 21 L.Ed.2d 262
(1968); Robinson v. United States, 327 F.2d 618,
623 (8th Cir.1964); Spahr v. United States, 409
F.2d 1303, 1306 (9th Cir.), cert. denied, 396 U.S.
840, 90 S.Ct. 102, 24 L.Ed.2d 91 (1969); York v.
United States, 389 F.2d 761, 762 (9th Cir.1968);
United States v. Lepinski, 460 F.2d 234, 239 (10th
Cir.1972).
31. See generally Kennedy v. Silas Mason Co.,
334 U.S. 249, 257, 68 S.Ct. 1031, 1034, 92 L.Ed.
1347, 1351 (1948) (refusing to address important
legal question because, “[w]hile we might be
able, on the present [inadequate] record, to
reach a conclusion that would decide the case, it
might well be found later to be lacking in the
thoroughness that should precede judgment of
this importance and which it is the purpose of
the judicial process to provide”); United States
v. Lewis, supra, note 14, 140 U.S.App.D.C. at 46,
433 F.2d at 1152 (“[t]he rationale for [the specif-
ic-objection requirement [] includes important-
ly the need for a record, developed by adversary
processes, upon which appellate consideration
740 FEDERAL REPORTER, 2d SERIES
of the potential opportunity to build a
record favorable to its cause. An assess-
ment of Byers’ constitutional contentions in
light of these concerns makes it further
evident that the rule precluding considera-
tion of an untimely issue on a materially
flawed record applies squarely to the case
at bar.
Record deficiencies militate with special
force against attempted resolution of the
Fifth Amendment controversy here.
Byers’ self-incrimination claim calls for ju-
and resolution can safely proceed”); Lee v. Ha-
bib, 137 U.S.App.D.C. 403, 409, 424 F.2d 891, 897
(1970) (“[t]here can never be effective appellate
review if the reviewing court is not able to
obtain a clear picture of the precise nature of
the alleged errors in the court below”).
Even aside from Rule 52(b), the well-en-
trenched rule is that courts will not resolve
constitutional issues on a deficient record.
Kleppe v. New Mexico, 426 U.S. 529, 546, 96 S.Ct.
2285, 2295, 49 L.Ed.2d 34, 47-48 (1976), quoting
Public Affairs Assocs. v. Rickover, 369 U.S. 111,
113, 82 S.Ct. 580, 582, 7 L.Ed.2d 604, 607 (1962)
(holding that courts should not decide impor-
tant constitutional questions on less than an
“‘adequate and full-bodied record’ ”); Tennessee
Publishing Co. v. American Nat'l Bank, 299 U.S.
18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13, 15 (1936)
(“[i]t is a familiar rule that the court will not
anticipate the decision of a constitutional ques-
tion upon a record which does not appropriate-
ly present it”). See also Wheeler v. Barrera, 417
U.S. 402, 426-427, 94 S.Ct. 2274, 2288, 41
L.Ed.2d 159, 178 (1974); Alabama State Fed'n of
Labor v. McAdory, 325 U.S. 450, 461-462, 65
S.Ct. 1384, 1389-1390, 89 L.Ed. 1725, 1734-1735
(1945); Allen-Bradley Local 1111, United Elec.
Workers v. Wisconsin Employment Relations
Bd., 315 U.S. 740, 746, 62 S.Ct. 820, 824, 86 L.Ed.
1154, 1163 (1942); Wilshire Oil Co. v. United
States, 295 U.S. 100, 102-103, 55 S.Ct. 673, 674,
79 L.Ed. 1329, 1331 (1935); Bandini Petroleum
Co. v. Superior Court, 284 US. 8, 22, 52 S.Ct.
103, 108, 76 L.Ed. 136, 145 (1931). See general-
ly Socialist Labor Party v. Gilligan, 406 U.S. 583,
S83 & n.:2,.92:S.Ct. 1716, 1719 & n..2, 32
L.Ed.2d 317, 322 & n. 2 (1972) (court should not
decide constitutional question unless it is
“presented with the clarity needed for effective
adjudication”); Rescue Army v. Municipal
Court, 331 U.S. 549, 584, 67 S.Ct. 1409, 1427, 91
L.Ed. 1666, 1686 (1947) (court should not decide
constitutional question unless it is presented in
“clean-cut and concrete form”); Associated Press
v. NLRB, 301 U.S. 103, 132, 57 S.Ct. 650, 655, 81
L.Ed. 953, 960 (1937) (court will not resolve
constitutional question on basis of hypothetical
facts).
nity to build a
use. An assess-
al contentions in
akes it further
fuding considera-
on a materially
hrely to the case
ate with special
esolution of the
troversy here.
aim calls for ju-
bceed”); Lee v. Ha-
D, 424 F.2d 891, 897
effective appellate
rt is not able to
P precise nature of
rt below”).
2(b), the well-en-
s will not resolve
deficient record.
S. 529, 546, 96 S.Ct.
8 (1976), quoting
over, 369 U.S. 111,
.2d 604, 607 (1962)
not decide impor-
Eb on less than an
cord'"”); Tennessee
at’l Bank, 299 U.S.
Ed. 13, 15 (1935)
the court will not
onstitutional ques-
Ss not appropriate-
bler v. Barrera, 417
2274. 2238. 4)
ama State Fed'n of
450, 461-462, 65
4.1725, 1734-1735
111, United Elec.
oyment Relations
820, 824, 86 L.Ed.
Oil Co. v. United
53 S.Ct. 673, 674,
Bandini Petroleum
8. 5,122,532. 8.Ct.
P31). See general-
gan, 406 U.S. 583,
3719 & n. 2, 32
(court should not
on unless it is
eded for effective
y v. Municipal
Ct. 1409, 1427, 91
should not decide
it is presented in
); Associated Press
S.Ct. 650, 655, 81
will not resolve
is of hypothetical
UNITED STATES v. BYERS 1129
Cite as 740 F.2d 1104 (1984)
dicial assessment of the totality of a di-
verse group of facts and circumstances,
and, as even Byers concedes, 3? the record
before us has not been developed suffi-
ciently in this regard. Resolution of Byers’
Sixth Amendment claim requires an evalua-
tion of sparse and contradictory empirical
data, necessitates a delicate accommodation
of competing values in the context of a
wide range of potentially suitable procedur-
al protections, and, if favorable to Byers,
might possibly involve the erection of a
formidable structure of interrelated rights
and duties.
Despite these aspects of the claims, how-
ever, Byers’ failure to assert them season-
ably before the District Court has imbued
the record with no more than a sketchy
description of the circumstances surround-
ing his Springfield examination,3* and has
left it entirely devoid of any adversary
presentation—testimony, analysis or dis-
cussion—on the extant empirical informa-
tion and professional literature, an in-
formed appraisal of which is so essential to
an intelligent disposition. It would seem a
gross disregard of the gravity and delicacy
with which constitutional matters are to be
treated * to proceed to the merits of Byers’
claim in the face of such deficiencies. And
32. Supplemental Brief for Appellant at 45.
33. That a highly similar Sixth Amendment issue,
see note 37 infra, required consideration of a
“broad range” of alternative procedural safe-
guards was found in Thornton v. Corcoran, 132
U.S.App.D.C. 232, 239, 407 F.2d 695, 702 (1969),
to be a particularly persuasive reason for not
resolving it in the absence of a “full factual
record.”
34. See Supplemental Brief for Appellant at 45-
46.
35. See Kremens v. Bartley, 431 U.S. 119, 127-
128, 97 S.Ct. 1709, 1714, 52 L.Ed.2d 184, 192
(1977); Wheeler v. Barrera, supra note 31, 417
U.S. at 426, 94 S.Ct. at 228, 41 L.Ed.2d at 178:
Ashwander v. TVA, 297 U.S. 288, 345, 56 S.Ct.
466, 482, 80 L.Ed. 688, 710 (1936) (concurring
opinion). The Supreme Court has long adhered
to the general rule that courts must not fashion
principles of constitutional law more expansive
than required by the facts of the case. Eg,
it would seem highly ironic to levy a sub-
stantial = constitutional duty upon the
Government and to justify the imposition
by an ad hoc evaluation of empirical infor-
mation badly in need of testing and analy-
sis in the crucible of the adversary process.
More than a decade ago, this court
viewed a strikingly similar constitutional
challenge presented by a mandamus peti-
tion and declined to consider the merits of
the claim on so barren a record, reasoning
that
the complexity of the issues involved and
the uncertain factual matrix within which
they must be resolved persuades us that
a solution should not be attempted in the
context of this petition for a writ of
mandamus.36
The court has also made clear that this
rationale extends fullforce to cases in
which the record deficiency was the result
of the claimant’s failure reasonably to raise
the issue:
[A] party asserting the unconstitutionali-
ty of governmental action has the burden
of demonstrating it. That burden ex-
tends to production of the facts essential
to a determination respecting the consti-
tutional claim. [Appellant's] trial coun-
sel made no effort in that direction. We
Kremens v. Bartley, supra, 431 U.S. at 136-137,
97 S.Ct. at 1719, 52 L.Ed.2d at 197; Alabama
State Fed'n of Labor v. McAdory, supra note 31,
325 U.S. at 461-462, 65 S.Ct. at 1389-1390, 89
L.Ed. at 1734-1735; Ashwander v. TVA, supra,
297 U.S. at 347, 56 S.Ct. at 483, 80 L.Ed. at 711
(concurring opinion); Liverpool, N.Y. & Phila-
delphia S.S. Co. v. Commissioners, 113 U.S. 33,
39, 5 S.Ct. 352, 355, 28 L.Ed. 899, 901 (1885). It
would seem a logical outgrowth of these hold-
ings that when, as here, the record is materially
deficient, the court should not undertake any
constitutional pronouncement at all.
36. Thornton v. Corcoran, supra note 33, 132
U.S.App.D.C. at 239, 407 F.2d at 702. There the
petitioner contended that the Sixth Amendment
required Saint Elizabeths’ Hospital, to which he
had been committed for a psychiatric examina-
tion to determine his competency to stand trial
and his mental condition at the time of an
alleged offense, to permit his attorney and an
independent psychiatrist to attend the staff con-
ference integral to preparation of the report the
hospital would submit to the District Court.
1130
do not in these circumstances pursue the
abstract right-to-counsel question which
[appellant] urges.* ;
I do not believe that the case sub judice
presents us with a record materially better
than that then confronting the court, and
accordingly would likewise decline to ad-
dress Byers’ constitutional contentions.?
Furthermore, I cannot be certain that the
Government would not have been able to
show that it did not tread upon any consti-
tutionally-protected interests of Byers if it
had been afforded a meaningful opportuni-
ty to present its side of the issues during
the trial proceedings. As but one example,
Byers himself admits that whether he vol-
untarily waived his right to counsel is a
matter that cannot be resolved on the
record before us.?® Beyond that, the
present state of the record forecloses any
accurate forecast on any of a number of
justifications presumably open to the
Government. It thus is premature and un-
sound, as well as unfair to the Government,
to venture opinions on whether Byers’ con-
stitutional rights, even as he perceives
37. United States v. Canty, 152 U.S.App.D.C. 103,
109-110, 469 F.2d 114, 120-121 (1972). Canty
involved the very issue discussed by the Thorn-
ton court.
38. Federal courts on occasion have manifested a
willingness more readily to find plain error for
constitutional claims. See, e.g., United States v.
Tobias, 662 F.2d 381, 388 (Sth Cir.1981), cert.
denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d
1317 (1982); 3A C. Wright, supra note 15, § 856
at 342. This proclivity, however, must be tem-
pered by the Supreme Court's unambiguous pro-
nouncement that “[n]Jo procedural principle is
more familiar to this Court than that a constitu-
tional right may be forfeited in criminal ...
cases by the failure to make timely assertion of
the right.” Yakus v. United States, 321 U.S. 414,
444, 64 S.Ct. 660, 677, 88 L.Ed. 834, 859 (1944);
accord, e.g., United States v. Indiviglio, supra
note 16, 352 F.2d at 280; United States v. Pope-
joy, 578 F.2d 1346, 1350 (10th Cir.), cert. denied,
439 U.S. 896, 99 S.Ct. 257, 58 L.Ed.2d 243
(1978). It also is constrained by the traditional
doctrine that courts will “never ... anticipate a
question of constitutional law in advance of the
necessity of deciding it.” Liverpool, N.Y. and
Philadelphia S.S. Co. v. Commissioners, supra
note 35, 113 U.S. at 39, 5 S.Ct. at 355, 28 L.Ed. at
901; accord, e.g., Kremens v. Bartley, supra note
35, 431 U.S. at 136, 97 S.Ct. at 1719, 52 L.Ed.2d
740 FEDERAL REPORTER, 2d SERIES
them, have been invaded. Put another
way, we cannot possibly know that error,
much less plain error, has occurred here.
The general rule counseling against ap-
pellate resolution of issues unraised at the
trial level finds still another foundation in
this case. Were we to accept Byers’ argu-
ments and hold that the Springfield exami-
nation was fatally flawed, the appropriate
remedy would be disallowance of any testi-
mony by Springfield psychiatrists thereon.
That outcome, however, would deprive the
Government of any real opportunity to op-
pose Byers’ insanity plea, for it is highly
unlikely that a psychiatric examination con-
ducted now would shed light on Byers’
mental state more than seven years ago,
when the charged offenses were commit-
ted. We would then, in effect, let Byers’
procedural lapses subvert the Govern-
ment’s capacity to rebut the insanity de-
fense by ensuring its inability to use an
efficacious expert witness when proper ob-
jections might well have allowed it to sub-
stitute adequately for the challenged testi-
mony. In my view, Byers should not be
at 197, quoting Regional Rail Reorganization Act
Cases} 419 ‘U.S. 102, 138,95 S.Ct. 335, 336, 42
L.Ed.2d 320, 350 (1974); Bush v. Texas, 372 U.S.
586, 590, 83 S.Ct. 922, 925, 9 L.Ed.2d 958, 960
(1963); Peters v. Hobby, 349 U.S. 331, 338, 75
S.Ct. 790, 794, 99 L.Ed. 1129, 1137 (1955); Alma
Motor Co. v. Timken-Detroit Axle Co., 329 U.S.
129, 136-137, 67 S.Ct. 231, 234, 91 L.Ed. 128, 133
(1946); Ashwander v. TVA, supra note 35, 297
U.S. at 346-347, 56 S.Ct. at 482-483, 80 L.Ed. at
711 (concurring opinion).
39. See Petition for Rehearing and Suggestion
for Rehearing En Banc (filed Mar. 10, 1981) at
14; Memorandum in Support of Petition for
Rehearing (filed July 28, 1981) at 13.
40. 1 note additionally that federal courts have
required the plain-error determination to be
made on the basis of the entire record. See,
e.g., United States v. Del Llano, 354 F.2d 844, 848
(2d Cir.1965); United States v. Montgomery, 582
F.2d 514, 519 (10th Cir.1978), cert. denied, 439
U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979);
United States v. Williams, 445 F.2d 421, 424
(10th Cir.), cert. denied, 404 U.S. 966, 92 S.Ct.
342, 30 L.Ed.2d 286 (1971). It would violate the
purpose if not the letter of this requirement to
find plain error on the materially defective
record before us.
Put another
ow that error,
becurred here. 40
ing against ap-
unraised at the
r foundation in
pt Byers’ argu-
ingfield exami-
he appropriate
ce of any testi-
htrists thereon.
Id deprive the
portunity to op-
or it is highly
kamination con-
ght on Byers’
en years ago,
were commit-
fect, let Byers’
the Govern-
e insanity de- .
lity to use an
‘hen proper ob-
pwed it to sub-
allenged testi-
should not be
feorganization Act
Ct. 335,:356, 42
v. Texas, 372° U.S.
L.Ed.2d 958, 960
13.8. 331,5338, 75
137 (1955); Alma
xle Co, 320 U.S,
91 L.Ed. 128, 133
pra note 35, 297
P-483, 80 L.Ed. at
r and Suggestion
Mar. 10, 1981) at
t of Petition for
y at 13.
eral courts have
rmination to be
ire record. See,
354 F.2d 844, 848
Montgomery, 582
cert. denied, 439
Ed.2d 42 (1979);
5 F.2d "421, 424
1.5. 966,92 S.Ct.
would violate the
s requirement to
lerially defective
UNITED STATES v. BYERS 1131
Cite as 740 F.2d 1104 (1984)
permitted to reap such rewards from his
own neglect. Courts have refused to
reach untimely issues on inadequate
records even without inquiry as to whether
the Government on remand would have am-
ple opportunity to adduce facts favorable
to its position.? Surely, then, we should
decline to consider Byers’ belatedly-raised
constitutional claims when any decision
against the Government would leave it
without important testimony it might have
been able to procure absent Byers’ proce-
dural defaults.
The court relies upon an aspect of the
Fifth Circuit's decision in Smith v. Es-
telle** in reaching the conclusion that
Byers’ Fifth Amendment argument should
be entertained despite his failure to ad-
vance it before the District Court.* In
Smith, the prosecution had introduced psy-
chiatric testimony at the sentencing stage
of a trial after representing to the court
and opposing counsel that the testimony
would not be used. The court held that
the state, by surprising defense counsel in
this way, had frustrated effective cross-ex-
amination of the witness and significantly
impaired the “interest in reliability” of the
judicial process.*® The court then allowed
the accused to litigate Fifth and Sixth
Amendment claims, noting that defense
41. In an attempt to mitigate the danger of un-
fair prejudice to the Government, Byers’ counsel
at oral argument appeared to represent that,
should Byers win, he would not object generally
to testimony by Dr. Kunev at a new trial. He
would, however, insist upon exclusion of testi-
mony that Byers had in effect admitted the
invalidity of his insanity plea. See text supra at
notes 5-8. This offer, I submit, is insufficient to
discount the danger of prejudice to the Govern-
ment. If Byers were to prevail, any and all
testimony by Dr. Kunev would be the product of
a constitutionally-tainted examination and,
hence, outlawed. It would be highly injudicious
in these circumstances to permit Byers to allay
this concern by waiving his objection to the
least potent testimony available to the Govern-
ment, all the while secure in the knowledge that
the evidence most beneficial to the Govern-
ment’s cause would be excluded. The Govern-
ment has no real opportunity to oppose an in-
sanity plea when the accused himself controls
the evidence it can offer.
counsel, as a result of the “surprise,” could
“scarcely be faulted for failing to enumer-
ate all of the many constitutional rights
that the state violated” when it unexpected-
ly presented the testimony.¥
In the case at bar, there was neither
such a surprise nor such detrimental conse-
quences. Byers knew well in advance that
Dr. Kunev would testify and, in fact, regis-
tered several nonconstitutional objections
to the testimony during the trial proceed-
ings.*® A litigant does not gain entitlement
to the Fifth Amendment merely because
his adversary’s witness blurts out some-
thing unanticipated. And although the
challenge here is to testimonial reproduc-
tion of a statement allegedly made by
Byers during Dr. Kunev’s examination, an
important element of Estelle is lacking.
There the defendant was left without any
opportunity to ‘prepare an effective re-
sponse to [the] testimony or to impeach it
in any significant way.” * Here, on the
other hand, there was much that could
have been utilized in Byers’ behalf.
In sum, the absence of obvious error in
the trial proceedings, the seriously defi-
cient record, and the unfair and prejudicial
effect on the Government of any decision
adverse to it convinces me that this case
does not threaten the “miscarriage of jus-
42. See cases cited supra note 31.
43. 602 F.2d at 694, 708 n. 19 (5th Cir.1979),
affd, 451 U.S. 454, 468 n. 12, 101 S.Ct. 1866,
1876 n. 12, 68 L.Ed.2d 359, 372 n. 12 (1981).
44. Majority Opinion (Maj. Op.) at 1106 n. 3.
45. Smith v. Estelle, supra note 43, 602 F.2d at
699. Lu
46. Id. at 701; see Gardner v. Florida, 430 U.S.
349, 360, 97 S.Ct. 1197, 1205-1206, 51 L.Ed.2d
393, 403 (1977).
47. Smith v. Estelle, supra note 43, 602 F.2d at
708 n. 19.
48. See text supra at notes 4-10.
49. Smith v. Estelle, supra note 43, 602 F.2d at
701.
50. See note 51 infra.
1132
tice” ®! necessary to support a determina-
tion of plain error under Rule 52(b).
III. THE SUPERVENING-DECISION DOCTRINE
AND ESTELLE Vv. SMITH
Federal appellate courts often forgive a
litigant’s failure to raise an issue season-
ably when at that time it would have been
futile to do so, but a substantial change in
or clarification of the law occurs in the
litigant’s favor after final judgment in the
trial court.’ This dispensation has some-
times been justified by reference to the
court’s statutory authority to effect such
51. See United States v. Frady, supra note 22, 456
U.S. at 163 & n. 14, 102 S.Ct. at 1592 & n. 14, 71
L.Ed.2d at 827 & n. 14; United States v. Grasso,
437 F.2d 317, 319 (3d Cir.1970), cert. denied, 403
U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971);
United States v. Chaney, supra note 23, 662 F.2d
at 1152; United States v. Rudinsky, supra note
23, 439 F.2d at 1076; United States v. Millpax,
Inc., 313 F.2d 152, 156 (7th Cir.), cert. denied,
373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 198
(1963); United States v. Van Horn, supra note
22, 553 F.2d at 1094; United States v. Sims,
supra note 23, 617 F.2d at 1377. My conclusion
that this case does not present a clear “miscar-
riage of justice” is fortified by the fact that
Byers was not entirely bereft of means by which
to discredit Dr. Kunev's damaging testimony
relating an oral statement, allegedly made by
Byers, suggesting that his insanity defense had
been concocted. See text supra at notes 5-8.
Although Byers asserts that his cross-examina-
tion was hindered because he had neither coun-
sel at nor transcripts of the interviews in ques-
tion, the very factors Byers advances to demon-
strate the unreliability of this testimony—that
Dr. Kunev's interview notes had been destroyed;
that the official reports were silent on this topic;
that Dr. Kunev recounted the oral statement,
originally believed to be of no significance,
from memory after lapse of a year; that the
environment in which Byers allegedly made the
statement was inherently coercive; that Dr. Ku-
nev was employed by the Government; that Dr.
Kunev had given varying versions of the state-
ment to different persons; that no third party
attended the interview; and that the statement
as related by Dr. Kunev was in some respects
ambiguous—all were available at trial to im-
peach the challenged testimony or the conclu-
sions sought to be drawn therefrom.
52. See Singleton v. Wulff, 428 U.S. 106, 121, 96
S.Ct. 23868, 2877, 49 1.Ed.2d 826, 837 (1976);
Standard Indus., Inc. v. Tigrett Indus., 397 U.S.
586,- 587-588, 90:S.Ct. 1310, 1311, 25 L.Ed.2d
590, 591 (1970) (dissenting opinion); Leary v.
United States, 395 U.S. 6, 27-28, 89 S.Ct. 1532,
740 FEDERAL REPORTER, 2d SERIES
disposition “as may be just under the cir-
cumstances.” 3 On this basis, the court
holds that the Supreme Court’s decision in
Estelle v. Smith 3 provided such an eluci-
dation of Sixth Amendment principles as to
excuse Byers’ procedural default respect-
ing the right-to-counsel claim.’ That E's-
telle refined some facets of Sixth Amend-
ment doctrine cannot be doubted; there the
Supreme Court, for the first time, held a
psychiatric examination to be a “critical
stage” for Sixth Amendment purposes,®®
and indicated that the Sixth Amendment
does not inexorably require the presence of
1543, 23 L.Ed.2d 57, 76-77 (1969); Grosso v.
United States, 390 U.S. 62, 70-71, 88 S.Ct. 709,
715, 19 L.Ed.2d 906, 913-914 (1968); Hormel v.
Helvering, 312 U.S. 552, 557-559, 61 S.Ct. 719,
721-723, 85 L.Ed. 1037, 1041-1042 (1941); Pat-
terson v. Alabama, 294 U.S. 600, 607, 55 S.Ct.
575, 578, 79 L.Ed. 1082, 1085-1086 (1935); Alex-
ander v. United States, 135 U.S.App.D.C. 367,
370, 418 F.2d 1203, 1206 (1969); Pendergrast v.
United States, 135 U.S.App.D.C. 20, 24-25, 416
F.2d 776, 780-781, cert. denied, 395 U.S. 926, 89
S.Ct. 1782, 23 L.Ed.2d 243 (1969); Wright v.
United States, 131 U.S.App.D.C. 279, 283 & n. 22,
404 F.2d 1256, 1260 & n. 22 (1968); In re El-
more, 127 U.S.App.D.C. 176, 178, 382 F.2d 125,
127 (1967); Schaff v. RW. Claxton, Inc., 79
U.S.App.D.C. 207, 208, 144 F.2d 532, 533 (1944);
United States v. Indiviglio, supra note 16, 352
F.2d at 280 n. 7; Harris v. United States, 390
F.2d 616, 616-617 (8th Cir.1968); United States
v. Patrin, 575 F.2d 708, 712 (9th Cir.1978); Ko-
hatsu v. United States, 351 F.2d 898, 901 n. 4
(9th Cir.1965), cert. denied, 384 U.S. 1011, 86
S.Ct. 1915, 16 L.Ed.2d 1017 (1966).
53. 28 U.S.C. § 2106 (1982). For cases justifying
the supervening-decision doctrine on the basis
of this section, see, e.g., Grosso v. United States,
supra note 52, 390 U.S. at 71, 88 S.Ct. at 715, 19
L.Ed.2d at 914; Pendergrast v. United States,
supra note 43, 135 U.S.App.D.C. at 24-25 & n.
19, 416 F.2d at 780-781 & n. 19; In re Elmore,
supra note 52, 127 U.S.App.D.C. at 178 & n. 12,
386 F.2d at 127 & n. 12. Some courts have
treated supervention of a decision simply as a
factor entering into the plain error determina-
tion under Fed.R.Crim.P. 52(b). See, e.g., Ko-
hatsu v. United States, supra, note 52, 351 F.2d
at 901 n. 4.
54. Supra note 43.
55. See Maj. Op. at 1110 n. 7.
56. Estelle v. Smith, supra note 43, 451 U.S. at
470, 101 S.Ct. at 1877, 68 L.Ed.2d at 374.
inder the cir-
is, the court
’s decision in
uch an eluci-
inciples as to
ault respect-
55 That Es-
pixth Amend-
ed; there the
time, held a
e a “critical
purposes,®®
Amendment
p presence of
659); Grosso v.
, 88 S.Ct. 709,
68); Hormel v.
.61'S.Ct.:. 719,
12 (1941); Pat-
, 3607, 38 S.Ct.
6 (1935); Alex-
.App.D.C. 367,
Pendergrast v.
0, 24-25, 416
PS U.S. 926, 89
9); Wright v.
9,283 &n. 22,
68); In re El-
382 F.2d 12S,
xton, Inc., 79
32, 533 (1944);
note 16, 352
ed States, 390
United States
ir.1978); Ko-
898, 901 n. 4
U.S, 1011,.85
)
ases justifying
on the basis
United States,
s.Ct.at 715, 19
United States,
at 24-25 & n.
In re Elmore,
t 178 & n.' 12,
courts have
simply as a
or determina-
See, e.g, Ko-
p52, 351 F.2d
UNITED STATES v. BYERS 1133
Cite as 740 F.2d 1104 (1984)
counsel at “critical stages.” 5 The impor-
tance of this clarification, it might be ar-
gued, is underscored by the fact that feder-
al courts theretofore held uniformly that
Byers’ Sixth Amendment contention lacked
merit, and this, as a strong indication of
likely futility of an objection,’ might have
been at least partly responsible for Byers’
procedural default. Despite these consid-
erations, however, I am not persuaded that
we could soundly resolve that contention on
this appeal.
Like the inquiry as to whether the trial
proceedings disclose “plain error,” the rul-
ing on whether to excuse a procedural
lapse because of a supervening decision is
entrusted largely to sound judicial discre-
tion.® The similarities between these two
determinations do not end here, for in each
the objective guiding the exercise of discre-
tion is achievement of a just disposition of
the case.®® It stands to reason, then, that
the factors central to plain-error delibera-
tions should also figure prominently in the
decision on whether to regard Estelle as
sufficient reason to overlook Byers’ proce-
dural neglect. Here, as already observed,
the absence of obvious error, the defective
record and the danger of prejudice to the
Government militate strongly against con-
57. Id. at 471, 101 S.Ct. at 1877, 68 L.Ed.2d at
374.
58. For cases stating that futility of an objection
might itself constitute ground for excusal of a
failure to make it, see, e.g., Smith v. Estelle,
supra note 43, 602 F.2d at 708 & n. 19; United
States v. Scott, 425 F.2d 55, 57-58 (9th Cir. en
banc 1970); Meadows v. United States, supra
note 30, 420 F.2d at 797. This rationale may
have been a primary animus behind adoption of
the supervening-decision doctrine. See, eg,
Standard Indus. v. Tigrett Indus., supra note 52,
397 U.S. at 588, 90 S.Ct. at 1311, 25 L.Ed.2d at
591 (dissenting opinion); United States v. Indi-
viglio, supra note 16, 352 F.2d at 280 n. 7. That
consideration of Byers’ Sixth Amendment claim
cannot be supported on the theory of futility of
objection is discussed in text infra at notes 72-
81. :
59. See, eg, Singleton v. Wulff, supra note 52,
428 U.S. at 121, 96 S.Ct. at 2877, 49 L.Ed.2d at
837; United States v. Patrin, supra note 52, 575
F.2d at 712. For cases relegating the plain-error
determination to judicial discretion, see Wash-
ington v. United States, supra note 30, 134 U.S.
sideration of the merits on any notion of
plain error.®® Moreover, I am not per-
suaded that Estelle engendered a signifi-
cant clarification of Sixth Amendment doc-
trine favorable to Byers, or that there was
sufficient reason to believe an objection at
trial would be futile. .I cannot see that
these factors are any the less dispositive
with respect to the determination on wheth-
er, under the supervening-decision doctrine,
an examination of the merits of Byers’
claim is essential to a just determination.
Estelle v. Smith involved a defendant in
a state capital prosecution who underwent
a court-ordered psychiatric examination to
determine whether he was competent to
stand trial. A dispute arose at the penalty
phase of the bifurcated proceeding when
the examining psychiatrist, on the basis of
the examination, gave testimony indicating
that the defendant had a violent nature and
posed a continuing threat to society. The
Supreme Court held that admission of this
testimony violated the defendant’s Fifth
Amendment privilege against self-incrimi-
nation because the state had not informed
him that he had the right to remain silent
during the examination and that any state-
ment might be used against him at a sen-
App.D.C. at 225, 414 F.2d at 1121; United States
v. Indiviglio, supra note 16, 352 F.2d at 280:
United States v. Grasso, supra note 51, 437 F.2d
at 319; Gendron v. United States, 295 F.2d 897,
902 (8th Cir.1961); United States v. Bacall, 443
F.2d 1050, 1063 (9th Cir.), cert. denied, 404 U.S.
1004, 92 S.Ct. 565, 30 L.Ed.2d 557 (1971); Gil
bert v. United States, 307 F.2d 322, 325:(9th
Cir.1962), cert. denied, 372 U.S. 969, 83 S.Ct.
1095, 10 L.Ed.2d 132 (1963).
60. Just as courts will utilize plain error only to
prevent a “miscarriage of justice,” see text supra
at note 51, so will they excuse procedural lapses
under the supervening-decision doctrine only as
required by the interests of justice. See cases
cited supra note 53; see also Singleton v. Wulff,
supra note 52, 428 U.S. at 121, 96 S.Ct. at 2877,
49 L.Ed.2d at 837; Hormel v. Helvering, supra
note 52, 312 U.S. at 557-558, 61 S.Ct. at 721-722,
85 L.Ed. at 1041-1042; Patterson v. Alabama,
supra note 52, 294 U.S. at 607, 55 S.Ct. at 578, 79
L.Ed. at 1085-1086; Schaff v. RW. Claxton,
Inc., supra note 52, 79 U.S.App.D.C. at 208, 144
F.2d at 533.
61. See text supra at notes 22-51.
1134
tencing proceeding.%? The Court further
held that the state had also infringed the
defendant’s Sixth Amendment right to as-
sistance of counsel when, by failing to tell
him that the psychiatrist might testify at
the sentencing phase, it deprived him of
any meaningful opportunity to consult with
his attorney before deciding whether to
submit to the examination.
In its opinion, the Court made clear that
a psychiatric examination is a “critical
stage” in a criminal proceeding,’ and that
as such it might warrant Sixth Amendment
protections, albeit other than presence of
counsel.’ Despite this subsidiary pro-
nouncement, however, I regard Estelle,
viewed in light of its primary holdings, as
not a significant doctrinal clarification help-
ful to the position Byers espouses. In the
first place, the Court expressly limited its
decision to criminal cases in which the de-
fendant, unlike Byers, does not offer psy-
chiatric evidence in his own behalf.®® The
Court suggested that a defendant who in-
terposes an insanity defense has no right to
remain silent during a psychiatric examina-
tion ordered to afford the Government a
fair chance to oppose the defense.” I
think this rationale seriously undermines
Byers’ Sixth Amendment claim.
Second, the Estelle Court extended Sixth
Amendment protections only to the degree
necessary to ensure intelligent exercise of
the defendant's right to remain silent dur-
ing the examination.® Since the Court in-
62. Estelle v. Smith, supra note 43, 451 U.S. at
466-469, 101 S.Ct. at 1875-1876, 68 L.Ed.2d at
371-373.
63. Id. at 469-471, 101 S.Ct. at 1876-1877, 68
L.Ed.2d at 373-374. —
64. See text supra at notes 54-57.
65. Estelle v. Smith, supra note 43, 451 US. at
470 n. 14, 101 S.Ct. at 1877 n. 14, 68 L.Ed.2d at
374 n. 14.
66. Id. at 465-466, 468, 472, 101 S.Ct. at 1874,
1876, 1877-1878, 68 L.Ed.2d at 370-371, 372,
375.
67. Id. at 465-466 & n. 10, 101 S.Ct. at 1874 & n.
10, 68 L.Ed.2d at 370-371 & n. 10.
740 FEDERAL REPORTER, 2d SERIES
dicated that defendants, such as Byers, for-
feit the privilege of silence by entering an
insanity plea,’ the existence of concomi-
tant Sixth Amendment protections would
appear to be problematic. The only theory
upon which Byers’ Sixth Amendment claim
might become acceptable—that an observer
at or a transcript of the psychiatric inter-
views is vital to effective cross-examina-
tion—was available to the Court in Estelle.
That it did not invoke or even refer to this
rationale might well portend a Sixth
Amendment construction too narrow to
benefit Byers.
Noteworthy, too, as Byers acknowledges,
the Estelle Court, far from breaking new
constitutional ground or enunciating new
Sixth Amendment principles, did no more
than decide the case before it by logically 7°
applying “well-established doctrines con-
cerning the right to counsel.” 7! It is, then,
more than a trifle inconsistent to maintain
that Estelle achieved such a substantial
clarification of extant law to warrant fore-
giveness of Byers’ procedural irregulari-
ties. Taken as a whole, Estelle seems nei-
ther to have developed Sixth Amendment
principles significantly nor to have in-
creased measurably, if at all, the likelihood
that Byers’ Sixth Amendment argument
has merit. :
I shy away from the intervening-decision
doctrine also because I am not convinced
that Byers reasonably could have assumed
that an objection would have been futile
68. Id. at 470-471, 101 S.Ct. at 1877, 68 L.Ed.2d
at 374.
69. Id. at 465-466 & n. 10, 101 S.Ct. at 1874 & n.
10, 68 L.Ed.2d at 370-371 & n. 10. Equally
significantly, the Court indicated that a defend-
ant has no constitutional right to have his law-
yer present during a compulsory psychiatric ex-
amination. Id. at 470 n. 14, 101 S.Ct. at 1877 n.
14, 68 L.Ed.2d at 374 n. 14. 3
70. Id. at 471, 101 S.Ct. at 1877, 68 L.Ed.2d at
374. This point is underscored by the Court's
extensive reliance upon prior caselaw to justify
its Sixth Amendment holding. Id. at 469-471,
101 S.Ct. at 1876-1877, 68 L.Ed.2d at 373-374.
71. Memorandum in Support of Petition for Re-
hearing (filed July 28, 1981) at 2.
as Byers, for-
py entering an
e of concomi-
ections would
e only theory
endment claim
at an observer
Fchiatric inter-
ross-examina-
urt in Estelle.
refer to this
end a Sixth
bo narrow to
hcknowledges,
breaking new
nciating new
did no more
by logically 7°
octrines con-
Nn 1tis, then,
t to maintain
a substantial
warrant fore-
ral irregulari-
lle seems nei-
Amendment
to have in-
the likelihood
ent argument
ening-decision
not convinced
have assumed
e been futile
877, 68 L.Ed.2d
.Ct. at 1874 & n.
n. 10. Equally
d that a defend-
to have his law-
y psychiatric ex-
S.Ct. at 1877 n.
J, 68 L.Ed.2d at
by the Court's
aselaw to justify
Id. at 469-471,
d.2d at 373-374.
Petition for Re-
2.
prior to Estelle. To be sure, the Sixth
Amendment claim he now asserts had been
rejected by a number of federal courts,’
but it or similar claims had been accepted
by several state courts,’ and neither the
Supreme Court nor this circuit had ruled
definitively on the issue. Quite significant-
ly, in Thornton v. Corcoran,’ a Sixth
Amendment contention closely similar to
Byers’ had experienced a friendly reception
by this court. There we analyzed the com-
plexities of the claim in light of relevant
caselaw,” expressed reservation concern-
ing the validity of the reasoning by which
other courts had denied similar claims,’
and acknowledged that the issue was “any-
thing but frivolous.” ?” Although in
Thornton we ultimately declined to con-
sider the merits,” our opinion virtually in-
vited other defendants to raise the question
in future cases fortified by more informa-
tive records.” I thus am unable to say
that prior to Estelle there was plausible
ground for a belief that an objection would
be futile.®® Indeed, Byers advanced his
Sixth Amendment argument early on the
appeal and proffered Thornton in support,
long before the decision in Estelle was
announced.’ That suggests to me that
Estelle, instead of breathing life into a
moribund issue, represented but an applica-
72. See cases cited supra note 26.
73. See In re Spencer, 63 Cal.2d 400, 46 Cal.Rptr.
753, 406 P.2d 33, 41-42 (1965); People v. Ranes,
385 Mich. 234, 188 N.W.2d 568, 571-572 (Mich.
Ct.App.1971), cert. denied, 405 U.S. 917, 92 S.Ct.
942, 30 L.Ed.2d 787 (1972); State v. Whitlow, 45
N.J. 3, 210 A.2d 763, 776 (1965); Lee v. County
Court, 37 N.Y.2d 432, 318 N.Y.S.2d 705, 267
N.E.2d 452, 459 (1971), cert. denied, 404 U.S.
823, 92 5.C1. 46, 30 L.Ed.2d 50 (1971).
74. Supra note 33.
75. Thornton v. Cocoran, supra note 33, 132 U.S.
App.D.C. at 235-240, 407 F.2d at 698-703.
76. Id. at 237, 407 F.2d at 700.
77. Id. at 239, 407 F.2d at 702.
78. See text supra at note 36.
79. Thornton v. Corcoran, supra note 33, 132
U.S.App.D.C. at 239, 407 F.2d at 702.
UNITED STATES v. BYERS 1135
Cite as 740 F.2d 1104 (1984)
tion of well-settled doctrine to the set of
facts before the Court.
For these reasons, I would not entertain
Byers’ Sixth Amendment protest. I cannot
ignore the important factors inveighing
against resolution of this tardy contention
by resort to the superficially appealing but
ultimately inapplicable doctrine by which
courts on occasion have excused procedural
negligence in the face of a defendant-favor-
ing supervening decision that materially
and substantially alters or clarifies the rel-
evant legal landscape.
V. CONCLUSION
That a party must register a reasonably
specific objection in the trial court to pre-
serve a claim on appeal is a time-honored
principle of federal jurisprudence. Its pur-
pose, among others, is to promote the or-
derly administration of justice by ensuring
that claims are presented in the first in-
stance at the trial level. The wisdom of
this rule, I submit, has been revalidated
today. The court’s disposition of this case
has been achieved only by debate, on a
materially deficient record, of issues never
placed before the District Court. From the
beginning I believed, and I still believe, this
case presents us with the best of reasons
80. As Byers apparently acknowledges, see Mem-
orandum in Support of Petition for Rehearing
(filed July 28, 1981) at 8 n. 5, this court subse-
quently has confirmed, on more than one occa-
sion, that the Sixth Amendment matter dis-
cussed in Thornton remains an open question of
some difficulty. United States v. Morgan, 157
U.S.App.D.C. 197, 204 n. 27, 482 F.2d 786, 793 n.
27 (1973); United States v. Canty, supra note 37,
152 U.S.App.D.C. at 109 & n. 5, 469 F.2d at 120
& n. 5; United States v. Marcey, 142 U.S.App.
D.C: 233, 256-257, 440 F.2d 281, 284-285 (1971);
United States v. Eichberg, 142 U.S.App.D.C. 110,
111 n. 1, 439 F.2d 620, 621 n. 1 (1971). But see
United States v. Fletcher, 329 F.Supp. 160, 160-
162 (D.D.C.1971).
81. Byers initially advanced his Sixth Amend-
ment claim on March 10, 1981. See Petition for
Rehearing and Suggestion for Rehearing En
Banc (filed March 10, 1981) at 11-14. The Su-
preme Court announced its decision in Estelle
on May 18, 1981.
4h
i
HE
i
i
1
iH |
f
ih
i
|
|
i
!
1136
to follow, not disregard, this fundamental
rule of procedure.®? Accordingly, I would
affirm Byers’ conviction without reaching
the merits of his constitutional claims.
In so concluding, I do not suggest that
Byers necessarily is barred from litigating
the constitutionality of his ‘conviction in
another manner. The familiar Section 2255
motion 83 provides a means of collateral
attack on federal convictions: “a prisoner
in custody under sentence of a [federal]
court ... claiming the right to be released
upon the ground that the sentence was
imposed in violation of the Constitution or
laws of the United States ... may move
the court which imposed the sentence to
vacate, set aside or correct the sentence.” 8
82. [The] belated perception of an issue not there-
tofore regarded by either trial or appellate
counsel as of significance raises the problems
inevitably inhering in this disorderly manner
of proceeding, such as the compilation of an
evidentiary record in the trial court without
reference to the legal issue in question, and
even more importantly in this instance, the
failure to focus the trial court's attention upon
it in ruling on the motion. ;
United States v. Johnson, 182 U.S.App.D.C. 383,
391, S561 F.2d 832, 840 (en banc), cert. denied,
432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080
(1977). Accord, Miller v. Avirom, supra note 14,
127 U.S.App.D.C. at 370 & n. 11, 384 F.2d at 322
& n. 11 (justifying requirement of reasonably
specific objection as necessary to promote final-
ity of litigation and to prevent “ ‘enormous con-
fusion and interminable delay,’” quoting John-
ston v. Reily, supra note 14, 82 U.S.App.D.C. at
7, 160 F.2d at 250).
83. See 28 U.S.C. § 2255 (1982).
84. Id. Once, however, issues have been decided
adversely to the defendant on direct appeal, the
court need not relitigate them on a § 2255 mo-
tion. United States v. Orejuela, 639 F.2d 1055,
1057 (3d Cir.1981) (district court's decision not
to relitigate issues already considered on direct
appeal reviewable under abuse of discretion
standard); Buckelew v. United States, 575 F.2d
515, 517-518 (Sth Cir.1978); Vernell v. United
States, 559 F.2d 963, 964 (5th Cir.1977), cert.
denied, 435 U.S. 1007, 98 S.Ct. 1876, 56 L.Ed.2d
388 (1978). Some courts have held that such
matters are completely- unavailable for relitiga-
tion in a § 2255 proceeding. See Chin v. United
States, 622 F.2d 1090, 1092 (2d Cir.1980), cert.
denied, 450 U.S. 923, 101 S.Ct. 1375, 67 L.Ed.2d
353 (1981); United States v. Natelli, 553 F.2d 5, 7
(2d Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 59,
54 L.Ed.2d 75 (1977).
740 FEDERAL REPORTER, 2d SERIES
Although the statute refers expressly to
challenges to “the sentence,” the courts
have interpreted it broadly to permit chal-
lenges to all proceedings leading up to a
conviction and sentence.® A Section 2255
motion must be resorted to before an appli-
cation for habeas corpus may be made,
and relief under the statute is available
upon grounds that would warrant the
grant of the writ.8” Section 2255 specifies
that “[a] motion for relief may be made at
any time,” ® and authorizes an appeal from
any order entered on the motion.?
Admittedly, Byers might face two hur-
dles in presenting his constitutional conten-
tions under Section 2255. Not every con-
stitutional claim is sufficient ground for
85. E.g, Kyle v. United States, 297 F.2d 507, 511
n. 1 (2d Cir.1961), cert. denied, 377 U.S. 509, 84
S.Ct. 1170, 12 L.Ed.2d 179 (1964) (noting that
§ 2255 is not limited to cases in which the
sentence was imposed “in violation of the Con-
stitution” but includes the more general phrase
“or is otherwise subject to collateral attack”);
Thomas v. United States, 368 F.2d 941, 945-946
(5th Cir.1966).
86. 28 U.S.C. § 2255 (1982). See United States v.
Hayman, 342 U.S. 205, 223 n. 40, 72 S.Ct. 263,
274 n. 40, 96 L.Ed. 232, 244 n. 40 (1952); Thorn-
ton v. United States, 15 U.S.App.D.C. 114, 117 n.
S, 368 F.2d 822, 825 n. 5 (1966); Hunt v. United
States, 301 F.2d 663, 664 (4th Cir.1962); Owens-
by v. Clark, 451 F.2d 206, 208 (5th Cir.1971).
87. Houser v. United States, 508 F.2d 509, 511-
512 (8th Cir.1974). For a comprehensive dis-
cussion of the relationship of § 2255 to the writ
of habeas corpus, see 3 C. Wright, Federal Prac-
tice § 591 (2d ed. 1982).
88. 28 U.S.C. § 2255 (1982). See McKinney v.
United States, 93 U.S.App.D.C. 222, 225, 208 F.2d
844, 847 (1953); Juelich v. United States, 300
F.2d 381, 383 (5th Cir.1962).
89. “An appeal may be taken to the court of
appeals from the order entered on the motion as
from a final judgment on application for a writ
of habeas corpus.” 28 U.S.C. § 2255 (1982).
Federal courts of appeal have no power to con-
sider an original motion to set aside a sentence.
See United States v. James, 446 F.2d 59, 60 (6th
Cir.1971); Flynn v. United States, 222 F.2d 541
(9th Cir.1955); Davis v. United States, 175 F.2d
19-20 (9th Cir.1949). See also 3 C. Wright,
supra note 87, § 601.
pressly to
the courts
ermit chal-
g up to a
pcetion 2255
e an appli-
be made,
5 available
hrrant the
5 specifies
be made at
ppeal from
89
kb two hur-
nal conten-
every con-
fround for
2d307, 511
U.S. S09, 84
(noting that
which the
of the Con-
eral phrase
ral attack”);
41, 945-946
‘ted States v.
pa 8.ct. 263,
p52); Thorn-
114,117 n,
nt v. United
2); Owens-
h Cir.1971).
d 509, 511-
hensive dis-
to the writ
ederal Prac-
1cKinney v.
R25, 208 F.2d
States, 300
1e court of
¢ motion as
n for a writ
255 (1982).
wer to con-
& sentence.
59, 60 (6th
2 F.2d 541
as. 175 B.2d
C. Wright,
UNITED STATES v. BYERS 1137
Cite as 740 F.2d 1104 (1984)
relief. Moreover, a defendant’s failure to
raise issues, otherwise cognizable under
the statute, at trial or on direct appeal may
serve to bar consideration of those issues
-in a subsequent Section’ 2255 proceeding
unless he can show cause for the omission
and demonstrate actual prejudice from the
alleged violation.
I do not pause to assess the import of
these concerns in this case. I do suggest
that these obstacles do not appear insur-
mountable in Byers’ instance. Several
90. The Supreme Court has held that a state
prisoner may not seek habeas corpus relief on
the ground that unconstitutionally obtained evi-
dence was introduced at his trial if the state has
: _ provided an opportunity for full and fair litiga-
tion of a Fourth Amendment claim. Stone v.
Powell, 428 U.S. 465, 481-482, 96 S.Ct. 3037,
3046, 49 L.Ed.2d 1067, 1080 (1976). Because
§ 2255 relief is available only on grounds that
would support an application for a writ of habe-
as corpus, see text supra at note 87, the Stone
rule seems clearly applicable to a federal prison-
er seeking relief under § 2255. See 3 C. Wright,
supra note 87, at § 594 p. 453 & n. 35.
91. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977), where a prisoner
sought habeas corpus relief on the ground that
he had not understood the Miranda warnings
given to him. The Court held that his failure to
comply with a state rule requiring a contempo-
raneous objection to the admission of his state-
ments barred him from habeas relief unless he
could show “cause” for failing to object at the
time and actual “prejudice.” Id. at 87, 97 S.Ct.
at 2506-2507, 53 L.Ed.2d at 608. See also Fran-
cis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48
L.Ed.2d 149 (1976); Davis v. United States, 411
U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973).
The Court “[left] open for resolution in future
decisions the precise definition of the ‘cause'—
and—'prejudice’ standard.” Wainwright v.
Sykes, supra, 433 U.S. at 87-88, 97 S.Ct. at 2507,
53 L.Ed.2d at 608. The Court later held that the
cause-and-prejudice test also governs a § 2255
attack on a federal conviction based upon al-
leged errors in the application of District of
Columbia criminal law. See United States v.
Frady, supra note 22, 456 U.S. at 167, 102 S.Ct.
at 1594, 71 L.Ed.2d at 830.
92. Tucker v. United States, 138 U.S.App.D.C. 345,
348-349, 427 F.2d 615, 618-619 (1970) (chal-
lenge to admissibility of statements obtained
from allegedly involuntary confession); Proctor
v. Anderson, 124 U.S.App.D.C. 103, 104, 361 F.2d
557, 558 (1966) (same); Overman v. United
States, 281 F.2d 497, 498 (6th Cir.1960), cert.
denied, 368 U.S. 993, 82 S.Ct. 612, 71 L.Ed.2d
530 (1962) (same). But see Williams v. United
courts have indicated that claims of Fifth 92
and Sixth Amendment? transgressions,
similar to those pressed by Byers, may
afford a basis for Section 2255 relief.
While the failure to urge a nonconstitution-
al claim on appeal clearly precludes its
examination under Section 2255,% collateral
attack may be available, despite such a
failure, for constitutional claims. Fur-
thermore, several courts have declined to
adopt the cause-and-prejudice standard in
such circumstances,” and have required
States, 197 F.Supp. 198, 199 (D.C.Ore.1961) (im-
proper use of allegedly coerced confession is to
be considered on appeal, and cannot be ad-
dressed in a § 2255 proceeding).
93. United States v. Tindle, 173 U.S.App.D.C. 77,
80, 522 F.2d 689, 692 (1975) (claim of ineffective
assistance of counsel); United States v. Wil-
liams, 615 F.2d 585, 593-594 (3d Cir.1980);
Thor v. United States, 574 F.2d 215, 218 (5th
Cir.1978); Sincox v. United States, 571 F.2d 876,
879 (5th Cir.1978).
94. Stone v. Powell, supra note 90, 428 U.S. at
477 n. 10, 96 S.Ct. at 3044 n. 10, 49 L.Ed.2d at
1077 n. 10, quoting Hill v. United States, 368 U.S.
424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421
(1962) (“[e]ven those nonconstitutional claims
that could not have been asserted on direct
appeal can be raised on collateral review only if
the alleged error constituted ‘a fundamental de-
fect which inherently results in a complete mis-
carriage of justice’”); United States v. Capua,
656 F.2d 1033, 1037-1038 (5th Cir.1981) (alleged
defects in jury-selection procedure); Smith v.
United States, 635 F.2d 693, 695 (8th Cir.1980),
cert. denied, 450 U.S. 934, 101 S.Ct. 1397, 67
L.Ed.2d 368 (1981) (alleged error concerning
presence of witness).
95. Davis v. United States, 417 U.S. 333, 345 n.
15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109, 118
n. 15 (1974); United States v. McCollom, 664
F.2d 56, 59 (5th Cir.1981), cert. denied, 456 U.S.
934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982); Unit-
ed States v. Capua, supra note 94, 656 F.2d at
1037 (dicta).
96. Grimes v. United States, 607 F.2d 6, 10-11 (2d
Cir.1979); Pacelli v. United States, 588 F.2d 360,
362-364 (2d Cir.1978), cert. denied, 441 U.S. 908,
99 S.Ct. 2001, 60 L.Ed.2d 378 (1979); Hunt v.
United States, 456 F.2d 582, 583 (3d Cir.1972);
Randall v. United States, 454 F.2d 1132, 1133
(5th Cir.1972), cert. denied, 409 U.S. 862,93 S.Ct.
151, 34 L.Ed.2d 109 (1972). But see Norris v.
United States, 687 F.2d 899, 904 (7th Cir.1982)
(even constitutional claims are barred in § 2255
proceeding by failure to appeal unless cause-
1138
only that the Section 2255 movant not have
“deliberately bypassed the orderly federal
procedures provided at or before trial and
by way of appeal.” ® It would seem that
under either standard Byers is in position
to have his constitutional contentions con-
sidered on a Section 2255 motion.%
Thus, it appears that a refusal to enter-
tain Byers’ constitutional claims on this
appeal would nonetheless leave him with an
740 FEDERAL REPORTER, 2d SERIES
opportunity to submit those claims to the
District Court. The court then could
squarely address the alleged infirmities in
the psychiatric examination, and the record
emanating therefrom would enable a sound
evaluation of the legal issues at stake and
a reasoned judgment upon a full comple-
ment of competing evidence and argu-
ments. I would relegate Byers to that
route.
TABLE OF CONTENTS FOR DISSENTING OPINION
I. BACKGROUND
II. APPLICATION OF THE FIFTH AMENDMENT To COURT-ORDERED INSANITY
EXAMINATIONS
. Values Underlying the Privilege
. Privacy Rights
. Fear of Inhumane Treatment and Abuses
. “Cruel Trilemma”
. Distrust of Self-Deprecatory Statements
. “Fair State-Individual Balance”
b. Exclusion of defendant’s statements irrelevant to diagnosis. 1157
¢. Provision of Miranda-type warnings
2. Other Considerations
and-prejudice test is satisfied); Ramsey v. Unit-
ed States, 448 F.Supp. 1264, 1268-1274 (N.D.III.
1978) (same). ;
97. Kaufman v. United States, 394 U.S. 217, 227
n. 8, 89 S.Ct. 1068, 1075 n. 8, 22 L.Ed.2d 227,
238 n. 8 (1969). See Chin v. United States, supra
note 84, 62 F.2d at 1093 (defendant deliberately
failing to raise point on direct appeal could not
urge on it collateral attack); United States wv.
Renfrew, 679 F.2d 730, 731 (8th Cir.1982) (col-
lateral attack barred where defendant dismissed
direct appeal on issues); United States v. Barnes,
520 F.Supp. 946, 961 (D.D.C.1981). This circuit
has left open the question whether the cause-
and-prejudice standard of Wainwright or the
deliberate bypass standard of Kaufman governs
constitutional claims in failure-to-appeal cases.
United States v. Barnes, 197 U.S.App.D.C. 369,
373-375, 610 F.2d 888, 892-894 (1979).
98. With respect to the Kaufman test, there is no
indication that Byers made any sort of strategic
decision to forego raising his constitutional
claims at trial or on appeal. Under Wainwright,
it seems clear that Byers has adequately demon-
strated prejudice resulting from the admission
of Dr. Kunev's challenged testimony. Whether
Byers could satisfy the “cause” element of this
latter standard is less apparent from the record.
I note only that my conclusion that Byers’ objec-
tions on Fifth and Sixth Amendment grounds
would not necessarily have been futile if made
at trial, see text supra at notes 72-81, does not
preclude a finding that, under the Wainwright
test, Byers had cause for not objecting. A real
though mistaken belief that an objection would
be futile may be a justification amounting to
cause for not raising a claim. Other justifica-
tions surely exist, and Byers could reasonably
be found to have demonstrated one.
50 the place
e received.
expresses a
York resi-
e risk that
York in-
ance policy
e had in-
gs are not
se benefit
ely, New
applies, in
which are
y in this
McKinney
pvisions do
tside this
its a long
d federal
forfeiture
ly to poli-
State at
e statute
Life Ins.
S.Ct. 538,
statute);
U.S. 262,
1 (1900);
178 U.S.
B (1900);
(5th Cir.
62 U.S.
(1923);
. Soc. of
.Y.S.24
27 N.Y.
prk Life
Y.S. 353
N.Y.S.
pck Mu-
N.Y.S.
Ins. Co.,
(1906).
ered in
to the
pany’s
pes not
ections
stances
essor
b bene-
Mutual
UNITED STATES v. PHILLIPS 1265
Cite as 575 F.2d 1265 (1978)
Life Ins. Co., supra. No New York interest
is abridged by the failure of the federal
district court, sitting as a California court,
to apply section 151 to this case because
New York courts hold the statute to be
inapplicable to such extra-territorial events.
(See Hurtado v. Superior Court, supra, 114
Cal.Rptr. at 111, 522 P.2d at 671 (where “it
appears that the foreign state
has no interest whatsoever in having its
own law applied, California as the forum
should apply California law.”); see also
Bernhard v. Harrah’s Club, supra, 128 Cal.
Rptr. at 218-19, 546 P.2d at 722-23.)! We
are therefore persuaded that a California
court would term the present situation a
false conflict and apply its own law by
which Strassberg is barred from recovering
under the policy. :
AFFIRMED.
W
o £ key NUMBER SYSTEM
UNITED STATES of America, Appellee,
v.
Columbus Lee PHILLIPS, Appellant.
UNITED STATES of America, Appellee,
Vv:
Larry Lee PHILLIPS, Appellant.
Nos. 77-2797, 77-2554.
United States Court of Appeals,
Ninth Circuit.
April 18, 1978.
Defendants were convicted in the Unit-
ed States District Court for the District of
1. Strassberg’s counsel argued vigorously that
New York had an interest in applying its law
for the benefit of nonresidents doing business
with New York insurance agents, to enhance
the business of insurance within the state.
Counsel cited only the case of Intercontinental
Planning Limited v. Daystrom, Inc., 24 N.Y.2d
372, 300 N.Y.S.2d 817; 248 N.E.2d 576 (1969).
The Daystrom case involved the application of
New York conflicts law to the question wheth-
er a New Jersey or New York statute of frauds
provision should be applied to an oral contract
for a finders’s fee for assistance in acquiring a
New Jersey corporation. A California court
Arizona, William P. Copple, J., of theft
from an interstate shipment, and one de-
fendant was convicted of concealment of
stolen goods, and they appealed. The Court
of Appeals, Kennedy, Circuit Judge, held
that defendants were prejudiced by the
prosecution’s failure promptly to inform the
trial court and defense counsel that it
would seek to reopen its case because a
government witness, who had lied on the
stand, was prepared to recant his testimony.
Reversed.
1. Criminal Law &=686(1)
Motion to reopen case should be made
with diligence necessary to eliminate preju-
dice to opposing party or, if prejudice is
unavoidable, to keep it to minimum.
2. Criminal Law &=686(1)
Error occurred in prosecution for theft
from interstate shipment and concealment
of stolen chattels where prosecutor failed
promptly to inform court and defense coun-
sel that he would seek to reopen case be-
cause government witness, who had lied on
stand, was prepared to recant his testimony.
18 U.S.C.A. § 659.
3. Criminal Law ¢=686(1), 703
Prosecution is not foreclosed by defend-
ant’s opening statement from changing its
strategy, consulting further with its princi-
pal witnesses, or requesting court to exer-
cise its discretion to reopen case in chief;
prosecution may not, however, where its
witnesses have testified inaccurately, form
would not use New York choice of law rules to
resolve the present case, nor is the discussion
in Daystrom respecting New York interests in
the application of its own statute of frauds to a
case pending in its own courts relevant to its
interests in the extra-territorial application of
section 151. As to that, we look to its courts’
interpretation. of that statute. They have said
“the Legislature of the State may be deemed to
have intended to provide only for the protec-
tion of the rights of policyholders within this
State” in enacting section 151. Napier v.
Bankers’ Life Ins. Co., supra, 51 Misc. at 290,
100 N.Y.S. 1072, 1076.
1266
essentials of plan to reopen case and delay
disclosure of that plan to court and to de-
fense if this induces defense to adopt unfa-
vorable strategy in presenting its own case.
Earl Terman (argued), John P. Moran
(argued), Phoenix, Ariz., for appellants.
Dale Danneman, Asst. U. S. Atty. (ar-
gued), Phoenix, Ariz., for appellee.
Appeal from the United States District
Court for the District of Arizona.
Before TRASK and KENNEDY, Circuit
Judges, and CURTIS,* District Judge.
KENNEDY, Circuit Judge:
The appellants Larry and Columbus Phil-
lips were each indicted on one count of
theft from an interstate shipment in viola-
tion of 18 U.S.C. § 659. Columbus Phillips
was indicted under the same statute on a
second count for concealment of stolen
chattels. They were tried together, and the
jury found them guilty on all counts. We
find the defendants were prejudiced by the
prosecution’s failure promptly to inform the
court and defense counsel that it would
seek to reopen its case because a govern-
ment witness, who had lied on the stand,
was prepared to recant his testimony. We
reverse the conviction.
The Government's case was that the de-
fendants had stolen a truckload of wood
paneling from a parking lot and had un-
loaded it in the corner of a lumber yard.
The owner of the lumber yard had a son,
age 17 years. The boy saw (or did not
see—that was a key issue) the defendants
unloading the paneling. In an interview
with FBI agent Sanderson before the trial,
the boy stated he had seen the defendants
driving the truck and unloading the wood
paneling. Agent Sanderson’s written re-
port of the interview was available to the
prosecutor and defense attorneys.
575 FEDERAL REPORTER, 2d SERIES
The prosecution called the boy as a wit-
ness during its case in chief. He testified
that the first time he saw the appellants
was on Sunday afternoon when he helped
them stack the paneling in the yard. He
would not testify, as he had stated previ-
ously in the FBI interview, that he saw the
appellants drive the truck and unload the
stolen paneling earlier on that Sunday
morning. On cross-examination, defense
counsel chose not to impeach the witness
with the prior statement, undoubtedly be-
cause the trial version tended to benefit the
defense case.
Other prosecution evidence was present-
ed, and the Government rested at the close
of the first trial day. That evening agent
Sanderson went to the boy’s home. The
witness confessed to lying on the stand out
of fear for his father, who allegedly had
been threatened by persons connected with
the defendants. The witness also talked by
telephone to the United States attorney la-
ter that evening.
Counsel met in the judge’s chambers on
the next morning to review jury instruc-
tions before court reconvened. Defense
counsel stated that he anticipated calling
the defendant Larry Phillips to the stand to
testify on his own behalf. The prosecutor
made no mention of the conversations with
his witness. :
When the trial resumed, defense counsel
made an opening statement, saying that he
would call defendant Larry Phillips, who
would testify that the boy’s father, who
owned the lumber yard, was the guilty par-
ty. There was a recess and the prosecution
again conferred with the boy, and advised
him that given the posture of the case, his
father might be prosecuted for the crime.
The witness agreed to recant the earlier
testimony and testify that he had seen the
defendants unloading the truck on Sunday
morning.
Outside the presence of the jury, the
prosecution moved to reopen its case to
allow the witness to clarify his testimony.
* Honorable Jesse W. Curtis, United States District Judge for the Central District of Cali-
fornia, sitting by designation.
| the boy as a wit-
hief. He testified
baw the appellants
n when he helped
in the yard. He
had stated previ-
w, that he saw the
k and unload the
on that Sunday
mination, defense
peach the witness
, undoubtedly be-
ded to benefit the
ence was present-
rested at the close
hat evening agent
boy’s home. The
on the stand out
vho allegedly had
ns connected with
ess also talked by
tates attorney la-
lge’s chambers on
lew jury instruc-
vened. Defense
nticipated calling
Ips to the stand to
The prosecutor
bnversations with
|, defense counsel
t, saying that he
ry Phillips, who
oy’s father, who
s the guilty par-
d the prosecution
boy, and advised
2 of the case, his
'd for the crime.
cant the earlier
he had seen the
truck on Sunday
f the jury, the
pen its case to
y his testimony.
District of Cali-
The defendants objected. The trial court
ruled that if the boy’s testimony were not
given upon a reopening of the prosecution’s
case, it would be allowed in rebuttal. De-
fense counsel proceeded with their case,
but, contrary to the representations made
in the opening statement, Larry Phillips did
not testify. Instead, their case consisted
solely of an examination of agent Sander-
son. After the defense rested, the boy
again took the stand, recanted his prior
testimony, and testified consistently with
the statement originally given to agent
Sanderson. In response to questions from
the prosecutor, the boy stated that he had
testified falsely when he was first called
because he had heard that threats were
being made against his father. A motion of
defense counsel for mistrial was denied.
The jury returned its verdict of guilty.
[1,2] A motion to reopen a case should
be made with the diligence necessary to
eliminate prejudice to the opposing party,
or, if prejudice is unavoidable, to keep it to
a minimum. See Fernandez v. United
States, 329 F.2d 899, 903 (9th Cir.), cert.
denied, 379 U.S. 832, 85 S.Ct. 62, 13 L.Ed.2d
40 (1964); Eason v. United States, 281 F.2d
818, 822 (9th Cir. 1960). We do not think
the prosecutor exercised the required dili-
gence here.
The Government knew on the evening of
the first trial day, if indeed it did not know
even while he was on the stand, that the
principal witness had lied. From the record
it is apparent that by reason of the witness’
age and probable willingness to avoid false-
ly implicating his father in a crime, he
would be amenable to correcting his false
testimony. The prosecution did not inform
the court or defense counsel of the Govern-
ment’s conversations with the witness, al-
though there was ample opportunity to do
1. The cases which hold that it is prosecutorial
misconduct for the Government to acquiesce in
perjured testimony are not applicable here, al-
though there was a latent potential for miscon-
duct each time the witness took the stand. The
witness lied when he first testified, but his false
statements were exculpatory, not incrimina-
ting. Furthermore, defense counsel, who had
the FBI reports, were fully aware of the dis-
crepancy. When the witness testified the
UNITED STATES v. PHILLIPS 1267
Cite as 575 F.2d 1265 (1978)
so before the trial resumed. It appears
from the record that the prosecution was
perfectly willing to base its case on the
perjured testimony until counsel presented
a formidable sounding defense in the open-
ing statement. Although the prosecutor
had learned in chambers that the defense
would call Larry Phillips, he waited until
after the defense opened before making
final arrangements with the witness to re-
cant the testimony and before advising the
court and opposing counsel of a motion to
reopen the case. This put the defendants in
the untenable position of having promised
to the jury that which they could no longer
deliver.!
[3] The prosecution is not foreclosed by
a defendant’s opening statement from
changing its strategy, consulting further
with its principal witnesses, or requesting
the court to exercise its discretion to reopen
the case in chief. The prosecution may not,
however, where its witnesses have testified
inaccurately, form the essentials of a plan
to reopen its case and delay disclosure of
that plan to the court and to the defense if
this induces the defense to adopt an unfa-
vorable strategy in presenting its own case.
While we are not prepared to say, without
benefit of more specific findings, that what
occurred here constitutes misconduct, it
would appear that the prosecutor's ethical
reflexes operated too slowly that day. The
lack of diligence in failing to announce the
plan to reopen the Government's case until
after the defense opening statement was
prejudicial to the defendants. See Eason v.
United States, supra.
The trial judge expressed great concern
about the matter and offered the defend-
ants the option of permitting the case to be
reopened immediately or of reserving the
witness’ revised testimony for the Govern-
ment’s case on rebuttal. Neither choice
second time, although the prosecutor had ap-
plied pressure to him, this matter was devel-
oped on cross-examination and fully disclosed
to the jury. Cf. United States v. Agurs, 427
U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976);
Giglio v. United States, 405 U.S. 150, 92 S.Ct.
763, 31 L.Ed.2d 104 (1972); Napue v. Illinois,
360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217
(1959); United States v. Butler, 567 F.2d 885
(Sth Cir. 1978).
1268
offered the defendants a realistic chance to
avoid the prejudice caused by their having
given an opening statement to the jury that
was based on a false assumption caused by
undue prosecutorial delay. The defense ul-
timately moved for mistrial and the court
should have granted that motion. See
United States v. Jackson, 418 F.2d 786 (6th
Cir. 1969).
REVERSED.
W
0 E key NUMBER SYSTEM
7
PAKISTAN INTERNATIONAL AIR-
LINES CORPORATION, Appellant,
Vv.
The BOEING COMPANY, Appellee.
No. 76-3098.
United States Court of Appeals,
Ninth Circuit.
May 1, 1978.
Buyer of aircraft sued seller for dam-
age to aircraft as result of alleged negli-
gent inspection by seller’s employees. The
United States District Court for the West-
ern District of Washington, Morell E.
Sharp, J., granted summary judgment in
favor of defendant, and plaintiff appealed.
The Court of Appeals held that within air-
craft’ purchase agreement providing that
buyer would indemnify seller and hold it
harmless with respect to special services
provided for in preceding paragraph of the
agreement, which paragraph provided that
such services “may include maintenance
and repair,” survey activities conducted by
seller prior to entering into agreement for
repair of damage to aircraft were incidental
to possible repair and were within meaning
of “special services,” precluding buyer’s re-
covery for alleged negligent inspection by
the survey team.
Affirmed.
575 FEDERAL REPORTER, 2d SERIES
Indemnity &=8(1)
Within aircraft purchase agreement
providing that buyer would indemnify seller
and hold it harmless with respect to special
services provided for in preceding para-
graph of the agreement, which paragraph
provided that such services “may include
maintenance and repair,” survey activities
conducted by seller prior to entering into
agreement for repair of damage to aircraft
were incidental to possible repair and were
within the meaning of “special services,”
precluding buyer’s recovery for alleged neg-
ligent inspection by the survey team.
William L. Parker, of Bogle & Gates,
Seattle, Wash., Condon & Forsyth, New
York City, for appellant.
Keith Gerrard, Seattle, Wash., for appel-
lee.
Appeal from the United States District
Court for the Western District of Wash-
ington.
Before BROWNING and TANG, Circuit
Judges, and TAYLOR, District Judge.*
PER CURIAM.
Pakistan International Airlines (P.I.A.)
appeals from a summary judgment entered
for Boeing in this suit for damage to one of
P.ILA’s airplanes as a result of an alleged
negligent inspection by Boeing employees.
The District Court granted summary judg-
ment based upon an indemnification clause
in the original purchase agreement that in-
demnifies Boeing for acts or omissions con-
nected with the aircraft after delivery to
P.ILA. by Boeing. This court has jurisdic-
tion under 28 U.S.C. Sec. 1291.
FACTS:
P.I.A. purchased the subject aircraft
from Boeing in 1961 pursuant to a purchase
agreement. The aircraft was damaged dur-
ing a hard landing at the Ankara, Turkey,
airport on January 24, 1972. Two days
later Boeing offered to have a survey team,
* Hon. Fred M. Taylor, Senior United States District Judge of the District of Idaho, sitting by
designation.
No subos
cution, and even a short delay needed by
defense counsel to avoid conflict required
a motion.
5. Criminal Law ¢>1166(1)
Although delay between date of de-
fendant’s arrest, August 15, 1965, and
date of trial on February 6, 1967 was
long enough to establish a prima facie
case of undue delay on defendant's con-
tention that he was denied a speedy trial,
where there was no possibility that de-
fense was weakened due either to una-
vailability or diminished recollection of
witnesses, defendant was not prejudiced
thereby.
sm———
Mr. Edgar T. Bellinger, Washington,
D.C. (appointed by this court) for appel-
lant.
Mr. Carl S. Rauh, Asst. U., 8. Atty,
with whom Messrs. David G. Bress, U.
S. Atty., Frank Q. Nebeker and Seymour
Glanzer, Asst. U. S. Attys., were on the
brief, for appellee.
Before BURGER, LLEVENTHAL and ROB-
INSON, Circuit Judges.
LEVENTHAL, Circuit Judge:
On consideration of defendant's appeal
from a judgment of sentence for 5 to 15
vears, following a jury conviction of
manslaughter on an indictment for sec-
ond degree murder, we find no preju-
dicial error.
[1] 1. One of appellant's conten-
tions, not presented to the trial judge,
is that the charge did not make clear
that the prosecution’s burden of proving
I. Hedgepeth v. United States, 125 1.8.
App. D.C. 19, 21, 863 F.2d 952, 954
(1966).
2. See Mathies v. United States, 126 17.8.
App.D.C. 98, 100 n. 1, 374 F.2d 312,
314 n. 1 (1967). One reason for insist-
ing on timely objection below is that de-
fendant should not be able to benefit
from delay and then assert that same de-
lay as error on appeal. A defendant at
liberty may well prefer the freedom in
the community to a prompt trial if he
anticipates ultimate incarceration. De-
went his
1208 408 FEDERAL REPORTER, 2d SERIES
guilt beyond a reasonable doubt extended
to the self-defense question. We do not
find plain error. Isolated sentences in
the charge may raise problems. But we
think the charge, taken as a whole, made
clear to the jury the Government's bur-
den of showing beyond a reasonable
doubt that defendant did not act in self-
defense.
2. More troublesome is appellant's
contention that he was denied a speedy
trial because of undue delay between the
date of his arrest, August 15, 1965, and
date of trial on February 6, 1967—some
537 days later.
This delay is long—too long to be
viewed with equanimity—and long
enough to establish a prima facie case
of undue delay.! This point also, how-
ever, appears for the first time on ap-
peal.
[2-4] It counts heavily against the
claim on appeal that defendant failed to
present the claim of denial of speedy
trial at the trial level, though we do not
say it constitutes an outright waiver. A
defendant not in confinement may be
nothing loath to acquiesce in delay, if
indeed he does not positively desire de-
lay. The lack of trial objection has par-
ticular importance where, as here, there
are delays not clearly attributable to one
counsel or another. In this case some
deiays were attributable to prosecution
postponements due to calendar demands.
Others are chargeable to the prosecution,
since the case was inert and the District
Court’s rules in effect gave the prose-
cutor control over the calendar3 How-
fendant may also hope to benefit from
the possible future unavailability of prose-
cution witnesses, or haziness of their rec-
ollections, particularly since the prosecu-
tion has a heavy burden of proof. De-
fendant may also feel that there is a com-
munity tendency in cases bordering on the
stale, if not too outrageous, to let by-
gones be bygones.
3. In view of this calendar control the
prosecution cannot rest on the mere fail-
ure or inability of defendant to show
that the delays were deliberate or willful
eo)
LEVIN v. CLARK 1209
Cite as 408 F.2d 1209 (1967)
ever some postponements in this case
were to accommodate defense counsel?
And the defendant failed to invoke the
limited voice available to him in calendar
control by moving to expedite trial, or
for dismissal in view of the denial of
speedy trial--which often serves to ex-
pedite a laggard on the calendar.
[5] Perhaps the decisive considera-
tion in this case is the lack of significant
basis for a claim of prejudice to the de-
fendant in the presentation of his case.”
While the intervening time between ob-
servation of events and narration of
them in court is generally likely to dim
the observer’s memory and handicap the
search for truth, no substantial possibil-
ity appears in this case that the defense
was weakened due either to unavailabil-
ity or diminished recollection of witness-
es. The only eyewitness to the homi-
cide, other than defendant himself, was
the estranged wife of the deceased, Ma-
ble Renfrow, who was keeping company
with defendant at the time of both the
offense and the trial. She did not recall
all the events of the evening in vivid
detail, but it is clear that she was in no
position to shed light on the key issue of
what transpired between defendant and
the victim. By the time she observed
them quarreling defendant had already
drawn the knife on deceased. She left
to call for the police and her presence
at the scene was brief. ¥t is most
unlikely that any material item in her
memory bank was erased by the passage
of time.
Affirmed.
for the purpose of securing tactical ad-
vantage, although of course any such de
liberate or willful delay would mdoubted-
ly be decisive in establishing denial of de-
fendant’s rights. Smith v. United States,
118 U.S App. 2.C. 38,331 1.24 84
(1964) (en bane),
or
4. Sece Hedgepeth v. United States, 125
1.8. App. D.C. 19, 21, 365 ¥.24 952, 0id
(1966). Again these are not a waiver -es-
pecially since the calendaring system, at
least as then applied, operated so that the
dates wet by the Assignment Commis
408 F.2d—-76V2
Lorn. = Deals w/
Milton M. LEVIN, Appellant,
Vv.
Ramsey CLARK, Attorney General of the
United States, Appelleo,
No. 20682.
United States Court of Appeals
District of Columbia Cir uit.
Argued April 20, 1967 E I | — \
F1967 Decided Nov.
Petition for Rehearing En Banc Denied
Dec. 16, 1968.
Habeas corpus proceeding. The
United States District Cour for the
District of Columbia, Burnita Shelton
Matthews, J., denied relief and appeal
was taken. The Court of Appeals, Baze-
lon, Chief Judge, held that «here gov-
ernment’s grand larceny casc was based
on testimony that defendant nd received
$35,000 from union in small bills ob-
tained at bank after defendant had re-
fused $1,000 bills, government's failure
to reveal to defense a bank officer's
statement which might have cnabled de-
fense to procure statements (rom bank
personnel that no exchange of bills had
taken place entitled defendant to new
trial.
Reversed for new trial.
«
Burger, Circuit Judge, dissented.
1. Criminal Law C=700
Prosecutor has constitutional duty
to reveal evidence to defendant.
sioner were pre-cleared as convenient to
the prosecution, while even a short de-
lay needed by defense counsel to avoid
conflict required a motion.
5. See United States v. Ewell, 383 U.S,
116, 86 K8.Ct. 773. 1b L.Ed.2d 6.7 (1966);
Evans v. United States (Philson {'nited
States) 130 U.S. App.D.C. 114, 397 F.2d
675 (May 8, 1965); Wilkin United
States, 129 U.S.AppD.C. 397 3956 FPF.
24 620 (Apr. 11, 1968): Hedpepeth ov,
United States, supra note 4. 125 U.S,
App. D.C. at 22, 265 F.2d at 905
idence on olen and, . May fant contin. Dtaatt Hon. aut tis Yhat tain fh ongl Fvaxs’
Statins pay Ah howe. Geer He Cruial piece Coral poidence fhe ftadesnont comml ol
pane Od J Crude —p Lvidrnec hat was ChAucial — akA $leo Ply re Langl
Sb fri a. Aud Yoeia ln
"1210
2. Criminal Law €>700
Convictions must not be obtained
through prosecutorial misconduct which
violates civilized notion of fairness and
thereby taints the entire criminal proc-
ess,
8. Criminal Law €=633(1)
Lawless law enforcement should not
be tolerated.
4. Criminal Law €>700
When government fails to reveal
evidence which would be helpful to de-
fendant, Constitution has been violated.
5. Criminal Law &>700
Prosecution must reveal to defense
evidence which might lead jury to enter-
tain reasonable doubt about defendant’s
guilt, but standard cannot be applied
harshly or dogmatically.
6. Criminal Law €¢>1184(3)
Where there was no dispute about
evidence which prosecutor had failed to
reveal to defense, trial court’s legal con-
clusion as to whether that evidence might
have led jury to entertain reasonable
doubt about defendant’s guilt must be
reviewed in same way that any other
legal conclusion of trial court is reviewed
and the clearly erroneous standard was
not applicable.
7. Habeas Corpus ¢>1138(13)
Where government's grand larceny
case was based on testimony that de-
fendant had received $35,000 from union
in small bills obtained at bank after de-
fendant had refused $1,000 bills, gov-
ernment’s failure to reveal to defense a
bank officer's statement which might
have enabled defense to procure state-
ments from bank personnel that no ex-
change of bills had taken place entitled
defendant to new trial.
I. Levin v. United States, 119 U.S. App.
D.0. 156, 338 F.2d 265 (1964), cert.
denied 379 U.S. 999, 85 S.Ct. 719, 13 IL.
Ed.2d 701 (1965).
2. Levin v. Katzenbach, 124 U.S.App.D.C.
158, 162, 363 F.2d 287, 201 (1966).
408 FEDERAL REPORTER, 2d SERIES
Mr. Thurman Arnold, Washington,
D. C., for appellant.
Mr. Theodore Wieseman, Asst. U. S.
Atty., with whom Messrs. David G.
Bress, U. S. Atty., Frank Q. Nebeker and
Oscar Altshuler, Asst. U. 8. Attys., were
on the brief, for appellee.
Mr. James V. Siena, Washington, D.
C., filed a brief on behalf of the Na-
tional Capital Area Civil Liberties Union,
as amicus curiae.
Before BAZELON, Chief Judge, EDGER-
TON, Senior Circuit Judge and BURGER,
Circuit Judge.
BAZELON, Chief Judge.
After we affirmed Levin's grand lar-
ceny conviction! he filed a petition for
habeas corpus alleging that the prose-
cutor did not reveal evidence which would
have been helpful. The District Court
denied the petition, but we reversed and
remanded so that the District Court
could determine whether “the govern-
ment failed to disclose evidence which
¥ * * might have led the jury to en-
tertain a reasonable doubt about appel-
lant’s guilt. Such a failure may be clas-
sified as negligence.””® Levin is now
appealing from the District Court’s find-
ing, on remand, that the evidence would
not have led the jury to doubt his guilt.?
[1-3] The prosecutor’s constitutional
duty to reveal evidence to the defendant
was recognized in Mooney v. Holohan 4
and Pyle v. State of Kansas’ In Pyle,
the Supreme Court said:
Petitioner’s papers * * #* get forth
allegations that his imprisonment re-
sulted from perjured testimony, know-
ingly used by the State authorities to
obtain his conviction, and from the
deliberate suppression by those same
authorities of evidence favorable to
him. These allegations sufficiently
3. Levin v. Katzenbach, 262 F.Supp. 951
(1968).
4. 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791
(1935). ___ encom
a
. 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214
(1942),
Ga a
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LEVIN v. CLARK 1211
Cite as 408 F.2d 1209 (1967)
charge a deprivation of rights guaran-
teed by the Federal Constitution, and,
if proven, would entitle petitioner to
release from his present custody.
From these cases two lines of decision
emerged. The first line. involved cases
in which the prosecutor suborned per-
jury or knowingly. used perjured testi-
mony at trial? The rationale of these
Cases seems to have been that convie-
tions must not be obtained through pros-
ecutorial misconduct which violates civi-
lized notions of fairness and thereby
taints the entire criminal process. Law-
less law enforcement should not be tol-
erated.8
The second line of decisions, which
involved the duty to reveal evidence, had
the same beginning as the first. In early
cases, the suppression was so clearly un-
fair that it tainted the criminal process
as much as if the prosecutor had suborn-
ed perjury.
The methods employed by the prose-
cution * * * [ropresent] as shock-
ing a situation as ever before pre-
sented before this court. A society
cannot suppress lawlessness by an
accused through the means of lawless-
ness of the prosecution. A society can-
not inspire respect for the law by with-
holding its protection from those ac-
cused of crimes.?
Ll 317 U.S. at 215-216, 63 S.Ct. at 178.
Alcorta v. State of Texas, 355 1.8. 28,
78 8.Ct. 103, 2 L.Ed.2d 9 (1957), Napue
v. State of Illinois, 360 U.S. 264, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
nN
8. People v. Savvides, 1 N.Y.2d 554. 556—
567, 154 N.Y.S.2d 885, 887, 136 N.E.2d
853, 854 (1956) ; Note, The Prosecutor's
Constitutional Duty to Reveal ridance
to the Defendant, 74 YALE L.J. 136, 137
139 (1964). The dissenting judge has al-
ready indicated agreement with our
analysis of this line of cases.
Presentation of perjared testimony and
deliberate suppression of evidence are
types of conduct which not only preju-
dice the defendant but also violate the
law, the basic duty of the prosecutor
as an officer of the Court, and the very
integrity of the judicial process. Such
conduct is impermissible. As a result,
a showing that the prosecution know-
ingly suppressed revelant exculpatory
Soon, however, the courts bevan to ree-
ognize that even negligent suppression,
though 1t was not “shocking or "“law-
less,” could violate the constitution.’® In
Brady v. State of Maryland!" the Su- ————eoe
preme Court confirmed this development.
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 puni shment, 7r-
respective of the good faith or bad
faith of the prosecution.”
[4] As the focus of the cases shifted
away from “the prosecutor’ S misconduct,
of nece ssity the constitution:| rationale
changed also. If the prosecutor acted in
good faith and was merely neg ligent, he
did not taint the criminal process. Th
new rationale focused not on misconfuct
ol the prosecutor but on harm to the de-
fendant. The Governments Tacilities for
discovering evidence are usually far su-
perior to the defendant's. This imbal-
ance is a weakness in our adve sary sys-
tem which increases the possibility of
erroneous convictions. When the Gov-
ernment aggravates the imbalance by
failing to reveal evidence which would
be helpful to the defendant the constitu-
tion has been violated.’ The concern is
not shat law enforcers are Dr ARIE te
evidence automatically entitles the de-
fendant to a new trial, with little or no
showing of prejudice. T.evin v. Katzen-
bach, 124 U.S.App.D.C. at 165, 363
F.2d at 294 (dissenting opinion).
9. United States ex rel. Montgomery v.
Ragan, 86 F.Supp. 382, 387 (N.D.HIL
1949).
10. United States ex rel. Thompson v. Dye,
221 F.2d 763 (3d Cir. 1955), Application
of Kapatos, 208 F.Supp. 883 (S.1.N.Y.
1962), Smallwood v. Warden, 205 F.
Supp. 325 (D.Md.1962). Note, supra
note 8 at 139-142,
i. 373 US. 83, 83 KR. 1194, 10 T.Ed.
2d 215 (1963).
12. 373 U.S. at 87, 83 S.Ct. at 1196 (em-
phasis added).
13. The dissenting judge has indicated
agreement with this principle.
The genesis, the basic rationale of
the duty of disclosure, placed only on
law but that innocent people may be con-
victed.
moment
[5] The question is what kinds of
evidence must the prosecutor reveal?
Various courts have talked about “favor-
able” evidence,’ ‘material’ evidence,®
“pertinent facts relating to [the] de-
fense,” 8 “information impinging on a
vital area in [the] defense,” 17 evidence
vital “to the accused persons in planning
and conducting their defense,” and
“evidence that may reasonably be consid-
ered admissible and useful to the de-
fense. When there is substantial room
for doubt, the prosecution is not to decide
for the court what is admissible or for the
defense what is useful.” *® Without ex-
cluding any of these relevant considera-
tions, in the present case we focused upon
the ultimate possibility of harm to the
defendant—the possibility of erroneous
conviction—and we stated the standard
in terms of whether the evidence “might
have led the jury to entertain a reason-
able doubt about [defendant’s] guilt.” 20
the prosecution in criminal cases, lies
in the belief that giving criminal de-
fendants counsel and the opportunity
to call witnesses has not completely
eliminated the reasons which led the
common law, before these protections
were provided, to require that the
prosecutor present in court all evidence
about an alleged crime, whether it help-
ed his case or not.
The presumed—and ordinarily well
founded—superiority of the prosecu-
tion's facilities for fact-gathering con-
stitutes the basis for the duty to disc’ose
exculpatory evidence and for the en-
forcement of it by setting aside co vie-
tions secured in part because of its vio-
lation. Levin v. Katzenbach, 124 1.8.
App.D.C. at 165, 363 F.2d at 294 (dis-
senting opinion).
See also Note supra note 8 at 142-145.
14. Pyle v. State of Kansas, 317 U.S. at
216, 63 S.Ct. 177, 87 L.Ed. 214.
15. United States ex rel. Thompson v. Dye,
221 F.2d at 765.
16. Curran v. State of Delaware, 259 F.
2d 707, 711 (3d Cir. 1958).
17. United States ex rel. Butler v. Ma-
roney, 319 F.2d 622, 627 (3d Cir. 1963).
18. Ashley v. State of Texas, 319 F.2d 80,
85 (5th Cir. 1963).
1212 408 FEDERAL REPORTER, 2d SERIES
[6] This standard requires specula-
tion because there is no sure way to know
how the jury would have viewed any par-
ticular piece of evidence. Nor is it pos-
sible to know whether revelation of the
evidence would have changed the config-
uration of the trial-—whether defense
counsel’s preparation would have been
different had he known about the evi-
dence, whether new defenses would have
been added, whether the emphasis of the
old defenses would have shifted.?* Be-
cause the standard requires this kind of
speculation we cannot apply it harshly
or dogmatically. In Griffin v. United
States,?? the Supreme Court directed us
to consider “whether it would not be too
dogmatic, on the basis of mere specula-
tion, for any court to conclude that the
jury would not have attached signifi-
cance to the evidence favorable to the de-
fendant had the evidence been before
it.” 23 We think it would be too dog-
matic here.?4
19. Griffin v. United States, 87 U.S.App.
D.C. 172, 175, 183 F.2d 990, 993 (1950).
20. T.evin v. Katzenbach, 124 U.S.App.D.
C. at 162, 363 F.2d at 291.
21. Cf. Ashley v. State of Texas, supra
note 18; United States ex rel. Butler
v. Maroney, supra note 17; Note, supra
note & at 145-147.
22. 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed.
993 (1949).
23. 336 U.S. at 709, 69 S.Ct. at 816.
24. The Government suggests that the trial
court's ruling must be “clearly erroneous”
before we reverse. Although, for rea-
sons stated below, we think the trial
court’s error is clear, we do not think the
“clearly erroneous” standard is applica-
ble. As we said in Jackson v. United
States, 122 U.S. App.D.C. 324, 326, 353
F.2d 862, 864 (1965), we said “in review-
ing facts * * * courts apply the
‘clearly erroneous’ standard * * *)7
Here, we are not reviewing facts. There
is no dispute about what evidence the
prosecutor failed to reveal. The only
question is what legal conclusion follows
from this failure. We must review the
trial court's legal conclusion in the same
way we review any other legal conclu-
sion of a trial court.
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LEVIN v. CLARK 1213
Cite as 408 F.2d 1209 (1967)
Levin was convicted on one count of
grand larceny. The indictment charged
that on or about February 13, 1959, he
stole $35,000 from the Bakery and Con-
fectionery Workers International Union
of America. The money was supposed to
have been embezzled by various members
of the Union and given to Levin on or
about the 13th of February so that he
could fix the pending perjury trial of
James Cross, the President of the Union.
Levin was supposed to have taken the
money without performing the services.
The Government’s brief describes a
strong case against Levin. James Lan-
driscina, Vice President of the Union,
provided most of the background. He
testified that he met Levin in January,
1959. Levin said he could fix Cross's
case for $35,000 or $40,000. Landriscina
arranged for Levin to meet Cross in
Washington. To pay for the trip, Levin
received a check for $600. Landriscina
was present at two meetings hetween
Levin and Cross at which the price for
the fix was set at $35,000. Levin also re-
quested that he be hired hy the Union as
general counsel. After some dispute,
Cross agreed to hire Levin as a lobbyist
for $17,600 a year.
During both days of the Cross trial,
February 16 and 17, Landriscina saw
Levin standing around the corner from
the courtroom. After the trial, Levin
submitted a bill for “Professional serv-
ices rendered through February 28, 1959,
$17,600,” but he received no money. On
April 8, 1959, Landriscina made partial
payment of $2,500 from the funds of his
local union. Ultimately the Union did
pay Levin more than $17,500 during
1959. The Government exhibits docu-
mented payments to Levin in 1959 of
$600, $2,500, $2,500 and $15,000. Also, it
was shown that Levin performed almost
no services for the Union in 1959.
The Government's evidence outlined
above may have shown that Levin was en-
25. Olson's testimony contradicted Tandris-
cina’s testimony that he made the first
payment to Levin on February 12. The
Union's cancelled check corroborated Ol-
son's testimony.
gaged in some shady dealing: with the
Union. But he was not tried fr, or con-
victed of, fixing or attempting to fix a
perjury case. Nor was he convicted of
fraudulently representing him. If to the
Union as a lobbyist. He was convicted
of stealing $35,000 from the 1 ion on or
about February 13, 1959. The evidence
outlined above serves only to scf the back-
ground and show the circumstances of the
alleged larceny,
Landriscina was the only wiliss to the
larceny itself. He gave a ver detailed
account of the transaction. 11: festified
to the following: On Tuesday, I"'ebruary
10, Levin asked Landriscina for § 10,000.
Levin said he needed the mony to pay
some jurors and court attendants. On
Thursday, February 12, Landri-cina re-
ceived an envelope with $1,000 hills from
Olson, Secretary-Treasurer of {1 Union,
and at 11:00 a. m. handed it to l.evin on
a park bench. At 12:00 Levin met Lan-
driscina again and said that the $1,000
bills must be changed into sm:ller bills.
Landriscina took the $1,000 bills. return-
ed to his office, had someone cxchange
the $1,000 bills for smaller bill« and re-
turned the smaller bills to TL.evin. The
next day, Friday, February 12, [.andris-
cina gave Lavin $25,000, the balance of
the promised $35,000, in small hills.
Peter Olson and Richard Ashi told a
different story. Olson testified that on
Friday, February 13, he cashed : £35,000
check at the National Savings and Trust
Company and received the monet in $1,-
000 bills.>» At 10:45 a. m. he pave ten
$1,000 bills to Landriscina.
It was Ashby who supposedly ox hang-
ed the $1,000 bills for $20 bill: at the
bank. He testified that he wa. in the
Union’s office on Friday, February 18,
when Olson returned from the bank with
thirty-five $1,000 bills.26 He saw Olson
give ten of the bills to Landriscina. Ol-
son left the other twenty-five $1,000 bills
with Ashby. Later Landriscina i lurned
26. Ashby’s testimony about the diate of
this transaction also contradicted In dris-
cina's testimony.
"1214 408 FEDERAL REPORTER, 2d SERIES
to the Union’s office and asked Ashby to
exchange the entire $35,000. Ashby went
to the bank, dealt with a Mr. McCeney,??
exchanged the bills, and returned in a few
minutes.
The two pieces of evidence which the
Government failed to reveal bear directly
upon this complicated transaction. The
first was a check for $35,000, dated Feb-
ruary 13, 1959, drawn on the Riggs Na-
tional Bank by the National Savings &
Trust Co. to enable National Savings to
replace the thirty-five $1,000 bills which
Olson withdrew. The argument is that
it would not have been necessary to re-
plenish the supply of $1,000 bills if they
were returned. But, as we pointed out
in our previous opinion, the bank’s prac-
tice was to replenish the supply as soon
as possible after a withdrawal, so Na-
tional’s check on Riggs might have been
issued even if the $1,000 bills were after-
wards returned.
[7] The second piece of evidence is
more significant. The Government had
in its possession a statement by Mr. Mec-
Ceney, the bank officer with whom Ash-
by dealt when he exchanged the $1,000
bills.
27. This fact came out during Ashby's tes-
timony before the Grand Jury.
28. The dissent states that McCeney and
Hooper did not remember cashing the
$35,000 check until they consulted bauk
records. But the evidence on this point
is contradictory; at the habeas hearing
McCeney and Hooper recalled details of
the transaction which would not be con-
tained in records.
McCeney testified: Well, Mr. Olsen
came into the bank and I contacted him
there in the office and took him over
to Mr. Hooper and he wanted large
bills, I asked him how he wished the
money and he said $1,000 bills and I
took him to Mr. Hooper because he
was handling the large denomination of
bills at that time. * * * H.Tr. 131.
Hooper testified: Mr. Olson contact-
ed one of our officers, Assistant Treas-
urer, Mr. McCeney, and asked him to
cash this $35,000 check, which I had
the thousand dollars bills [sic]. H.Tr.
52,
The witnesses seem to be describing a spe-
cific incident and not, as the dissent as-
I hereby recall Mr. Olson coming in
with a $35,000 check, dated February
13, 1959 to be cashed but I do not re-
call a telephone call from Mr. Olson to
arrange the cashing of this check. Mr.
Olson came in and I took him to Mr.
Hooper, who, at that time, was running
one of the savings windows and han-
dling the large cash, to cash this check
which he did in thousand dollar bills.
I do not recall Mr. Ashby coming in to
change the thousand dollar bills to
smaller ones. If he did I would have
taken him back to Mr. Hooper because
he was handling the large bills. Mr.
Hooper says he does not recall cashing
this money into smaller bills that day.
Ashby specifically testified before the
Grand Jury that he dealt with Mr. Mc-
Ceney when he exchanged the bills. Yet
McCeney said that he did not remember
the exchange, although he did remember
Olson’s cashing a $35,000 check earlier
that same day.?® Also, McCeney claimed
that if he had been asked to exchange
thirty-five $1,000 bills he would have
gone directly to Mr. Hooper. According
to the statement which was not revealed,
Hooper did not remember cashing the
money into smaller bills either.?®
serts, “established bank procedures con-
cerning large bill transactions.”
In any event, the bank officials would
be far more likely to remember exchang-
ing thirty-five $1,000 bills than cashing a
$35,000 check, since the former transac-
tion is “very unusual” while the latter
is not. Compare H.Tr. 63 with Govern-
ment’s exhibit No. 3, pages 6, T quoted
at 262 F.Supp. at 958.
29. Although defense counsel also inter-
viewed McCeney prior to trial, the inter-
view was an informal one, and there is
nothing in the record to suggest that the
prosecutor knew about it. Moreover, even
if the prosecutor did know about the in-
terview, he had no reason to believe that,
at this juncture, defense counsel was
aware of the purported exchange of bills.
(In fact, defense counsel did not know
about the purported exchange when he in-
terviewed McCeney.) Thus, the prosecu-
tor had no reason to believe that the de-
fense interview with McCeney touched on
the crucial points covered in McCeney’s
statement to the Government.
Ba
d
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AN
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Pt
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P
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Re RE ——— Ey i” i
LEVIN v. CLARK 1215
Cite as 408 F.2d 1209 (1967)
If the jury had known of McCeney’s
statement and had taken it to indicate
that there was no exchange into smaller
bills, then Landriscina’s description of
the transaction would have fallen and
with it the 2 _Governm ’S
case. Of course the jury might have dis-
believed MeCeney, or it might have decid-
ed that the exchange took place even
though McCeney and Hooper did not re-
member it.3® Or the jury might have
convicted on the basis of the circumstan-
tial evidence even though it helieved that
the exchange of bills and the transaction
surrounding that exchange had not oc-
curred. Yet it is arly within the realm
of possibility that the jury would have
“attached significance” 3' to McCeney's
statement.3?
We would be required to reverse, then,
even if the statement’s only significance
were in the way a jury might have
viewed it. However, the statement has
another importance. Wit h knowledge-of.
McCeney’s statement, defense counsel
certainly would probed deeper into
what was the central aspect of the Goy-
ernment’s case. For example, with some
investigation, reconstructi exe
and discussions with Hooper and McCen-
&y, defense counsel might have been able
to transform their inability to remember
the transaction into a positive statement
that there was no exchange of bills.
In fact, at the habeas corpus hearing
after the trial Hooper testified that to
the best of his knowledge he had not ex-
changed the bills.
Mr. Olson contacted one of our of-
ficers, Assistant Treasurer, Mr. Me-
Ceney, and asked him to cash this $35,-
000 check, which I had the thousand
dollar bills. We usually maintained a
certain level, say around $50,000 in
thousand dollar bills for these special
30. McCeney’s and Hooper's memory had
been proved faulty in other matters, Ley-
in v. Katzenbach, 262 F.Supp. at 958
959.
31. Griffin v. United States, supra note 23
at 709.
requests. So I cashed this check and
that is the last I saw of the ti ansaction.
Now, to my knowledge, tha! was the
end of the transaction as fir as I was
concerned.
Apparently Olson's visit to the bank was
the end of the transaction as {ar as Me-
Ceney was concerned also. Ilivfore the
habeas corpus hearing he told petitioner's
counsel that
To the best of [my] knowledie. these
$1000 bills were never retuned that
day (or any reasonable timc {hereaft-
er) for exchange into currency of
smaller denominations.
At the hearing McCeney confirmed his
statement
[TIhat is the knowledge th:i I have
of it, that they never, they were not
returned shortly or at any liter date,
the $1000 bills.
This testimony would have had great
significance if it were brought out at
trial because Ashby said he dealt with
McCeney, and McCeney said il anyone
“had come to him to make the exchange, he
would have gone directly to Hooper. So
both McCeney and Hooper wild have
known of the exchange had it « curred.
Of course, their subsequent i itimony
was not known to the prosecutor hefore
trial, and we do not hold him rc ponsible
for ngt discovering and reveling it.
However, its fortuitous discover. at the
habeas corpus hearing adds credence to
our speculation that, if defense counsel
knew of McCeney’s pre-trial st itement,
the course of the trial might hive been
quite different.
Reversed for a new trial.
BURGER, Circuit Judge (dissenting) :
Again we have a holding of thi: Court
reversing a conviction which was not only
32. In part, the District Court's ruling be-
low was based on the fact that (he ox-
change could have taken place without
Hooper's or McCeney's knowledge. T'his
ruling apparently ignores Ashby 's festi-
mony before the Grand Jury that he
dealt with MeCeney when he excliinged
the bills.
fairly obtained in 1963 but affirmed on
direct appeal to this Court, with certio-
rari denied by the Supreme Court, Levin
v. United States, 119 U.S.App.D.C. 156,
338 F.2d 265 (1964), cert. denied 379 U.S.
999, 85 S.Ct. 719, 13 L.Ed.2d 701 (1965).
This is but another of the long line of
cases demonstrating this Court’s chronic
aversion to finality in criminal cases.
This holding is a grave abuse of the Great
Writ of habeas corpus which was intend-
ed to correct injustice, not frustrate jus-
tice; it lays down an unworkable and to-
tally specious requirement.
After failing to persuade this Court
and the Supreme Court to disturb his con-
viction, Appellant sought release on a
petition for habeas corpus claiming ‘“‘new-
ly discovered evidence,” and arguing the
Government had knowingly used perjured
testimony; later he changed his petition
to claim that the Government had con-
cealed certain evidence. Both these
claims were totally without basis and the
majority agrees that this is so; the first
claim was abandoned and this division of
this Court rejected the second claim.1
The majority now hints that perhaps we
did not reject the second contention when
we remanded the habeas corpus petition
to the District Court, but even a cursory
reading of our opinion, Levin v. Katzen-
bach, 124 U.S.App.D.C. 158, 162, 363 F.
2d 287, 291 (1966), will show that at
most the remand found only a possibility
that the Government may have ‘“negli-
gently” failed to disclose what had been
stated by a potential witness interviewed
by both sides.
I. Indeed, the remand order recited “the
prosecution, no doubt in complete good
faith, did not disclose to the defense at
or before trial” the fact that a bank of-
ficer stated he “could not recall” chang-
ing large bills into $20 denominations.
Levin v. Katzenbach, 124 U.S.App.D.C.
158, 159, 363 F.2d 287, 288 (1966)
(emphasis added). Surely this made clear
that no “suppression” or “concealment”
of evidence was involved.
2. Brady decided that ‘“‘apon request” the
prosecution must furnish evidence favor-
1216 408 FEDERAL REPORTER, 2d SERIES
This Court’s remand to the District
Court was for two purposes: first, to de-
termine whether the Government was
negligent in not advising the defense that
a bank officer had said he could not re-
member the exchange of large bills into
$20.00 bills and second, if there was neg-
ligence, to determine whether this non-re-
call “might have led the jury to entertain
a reasonable doubt about appellant’s
guilt.”
After a hearing and extended consider-
ation on remand the trial judge found as
a fact that the Government had not been
negligent and that even had the jury been
told of the bank officer’s non-recall of the
events, it would not have affected the re-
sult. Rule 52, FED.R.C1v.P. limits our re-
view narrowly to determining whether
the District Court findings were clearly
erroneous.
Before reaching analysis of what was
done and what the majority now does, it
is important to make clear what is not
in dispute in this case. The prosecutor's
duty to disclose evidence favorable to the
defense was defined by the Supreme
Court in Brady v. State of Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), but the issues here presented are
not governed by that holding.?
But that rule is not the issue in this
case, notwithstanding the belated and the
tortured effort of the majority to make
it appear so. What is involved is this:
in preparing the case for trial each side
interviewed one McCeney, a bank officer,
concerning the $35,000 check drawn on
union funds; this was the $35,000 paid
able to the accused, 373 U.S. at 87, 83
S.Ct. 1194, 10 L.Ed.2d 215. I would as-
sume that where the government has posi-
tive exculpatory evidence which plainly
would constitute a defense, the govern-
ment has a duty to tender it without a re-
quest. But the majority here stretches
the sound Brady concept to cover
peripheral material which by no stretch
of imagination could have been regarded
as “evidence.” It is for this reason the
majority must spin out its fanciful theory
of government “negligence.”
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TA
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=
to Levin on his fraudulent claim that he
could “fix” a case against one James
G. Cross, then under indictment for em-
bezzlement of union funds.
In light of this factual background the
not-very-subtle quotation in the majority
opinion from other cases which are inap-
posite, using such inflammatory terms as
“lawless” and “shocking” to describe con-
duct of a prosecutor, is an affront to the
facts of this case. That these lurid allu-
gions purport to be part of {racing the
development of the law of the subject is
a very thin excuse for this tactic and I
suggest is a poorly veiled device to hint
darkly at some nefarious act of Govern-
ment which cannot be supported by ref-
erence to facts. The remand decision
suggested only that the Government may
have negligently failed to disclose infor-
mation it had received; and even that
claim rested on the fragile reed of an as-
sumption that the Government had a duty
to say in effect:
Now look, Mr. Defense Counsel, we in-
terviewed Mr. McCeney and here is
what he said to us: He remembers
cashing the $35,000 check but cannot
recall changing the bills into small de-
nominations. We want to make sure he
gives you the same information he gave
us.
To apply any such remarkable standard,
the Government must first surely have
some reason to believe that the informa-
tion of non-recall is relevant in some way
so that it rises to the level of “evidence.”
To recite this proposition, which is sim-
ply to apply the majority’s thesis, is to
demonstrate that it has no basis in the
realities of litigation.
It is, of course, too elementary to re-
quire citation of authority that there are
two predicates of negligence: first, the
existence of a duty and second, failure to
meet that duty. Can it be possible—ra-
tionally possible—that the prosecutor has
a duty to monitor or guide and oversee
the defense counsel's preparation and
conduct of his case to the extent of re-
quiring an exchange of information on a
statement of non-recall derived from an
408 F.2d—77
LEVIN v. CLARK 1217
Cite as 408 F.2d 1209 (1967)
"
interview with a common witnes: Can
it be that defense lawyers want or expect
this kind of “Big Brother” treatment so
long as they know of the existence and
whereabouts of the witness and have ac-
cess to him, as the defense did here?
Even were civil pre-trial proces«c. avail-
able, it is most unlikely that th bank
officer's non-recall would have hoon not-
ed.
Having previously registered my dis-
sent to the nebulous and novel “negli-
gence” concept relied on by the majority,
but being bound by it as the law of this
case, I shall try to demonstrate that, even
assuming the validity of the wrongly con-
ceived and undefined law-for-ihis-case
guidelines of the majority, the District
Court was not “clearly erroncous” in
finding that the “new evidence” in ques-
tion would not “have led the jury to en-
tertain a reasonable doubt abou! Appel-
lant’s guilt.”
To an utterly absurd legal «(andard
of prosecutorial negligence-without-duty,
the majority now applies a review stand-
ard which is ridiculous and anticlimatical
in the extreme. The second aspect of the
remand was to have the District Judge,
after passing on the “negligence” aspect,
decide whether the alleged newly discov-
ered detail would have had an inipact on
the jury had the defense called McCeney
and deweloped his lack of recollection. We
must remember this is a case tried more
than three years ago on events now nine
years in the past.
Having sent the case back for a factual
determination the majority— perhaps be-
cause they do not relish the result—now
makes the discovery that this i: not a
factual issue after all but a legal matter.
I suggest this is a transparent device to
avoid the impossible task of demonstrat-
ing that the District Judge was “clearly
erroneous’ under Rule 52. In a most re-
markable piece of judicial legerdemain,
what was once a factual issue for the trial
judge as fact trier, now emerges as a le-
gal question for appellate judges! Of
course, when this case is tried acain-—as
"1218
it must—the issue will again be emeshed
in the jury’s fact-finding deliberations.
Just how a jury could have been ‘‘in-
fluenced,” as the majority now decides,
by a piece of peripheral non-recall “evi-
dence” available to and brushed aside by
defense counsel is left dangling in mid-
air. The action of the majority, ignoring
firmly established concepts of appellate
review and the Federal Rules of Civil
Procedure as well, demonstrates the wis-
dom of the historic limitations imposed
on reviewing courts. It was to hold in
check undisciplined judicial action by re-
motely situated appellate judges that
these rules were framed, but those con-
cepts are cast aside today even if only
to make a Rule-for-Levin's-Case.
The District Judge, whose trial experi-
ence vastly exceeds that of all three mem-
bers of this panel and who lived with
this case for many days, observing wit-
resses and jurors alike, was the best, if
not the only, person qualified to make the
appraisal for which we remanded. Since
that appraisal cannot be improved upon
by paraphrasing, I quote:
If, as indicated by the Court of Ap-
peals, significance attaches to the fact
that neither of two Bank officers re-
membered exchanging the $1,000 bills
for twenties but did recall the cashing
of the Union check, such significance
dwindles to the vanishing point in light
of (1) the failure of the officers to re-
member the cashing of the Union check
two years after the event when they
were first asked about it; (2) the re-
construction or reviving of their recol-
lections in this regard from bank rec-
ords; (3) the time lapse of one and one-
half years between inquiry of the of-
ficers as to the cashing of the check
and inquiry of them as to the exchange
of the bills; (4) the fact that this sec-
ond inquiry was made nearly four
years after the event in question; (5)
the lack of bank records to disprove
the exchange of the $1,000 bills for
smaller bills; (6) the possibility that
one of the several tellers other than
Hooper exchanged the thirty-five $1,-
000 bills into $20 bills for Ashby; (7)
408 FEDERAL REPORTER, 2d SERIES
the fact that Hooper did not know Ash-
by; (8) the fact that two witnesses—
Ashby and Landriscina—testified un-
equivocally that the $1,000 bills were
exchanged for $20 bills; and (9) the
obvious memory deficit of McCeney
and Hooper.
Levin v. Katzenbach, 262 F.Supp. 951,
960 (D.D.C.1966).
The Government case, presented to the
jury in 1964, satisfied 12 jurors—beyond
a reasonable doubt—that Levin told
Cross and Landriscina, officers of the
Bakery and Confectionery Workers’ Un-
ion, that he could “fix” Cross’ perjury
trial at a cost of $35,000; that $35,000
was raised by Peter Olson, Secretary-
Treasurer of the Union, by embezzling
Union funds; that Landriscina delivered
the money to Appellant in Washington
and that Appellant kept the money; in
short, the jury found that Levin's whole
story was simply a confidence scheme
concocted by him to bilk his victims out
of $35,000.
A review of the evidence before the
jury is called for by the majority's action
since the central issue at Appellant's jury
trial was whether Levin had received the
$35,000. Landriscina testified that he
gave Levin $10,000 at 11:00 o'clock on
the morning of February 12, 1959, and
$25,000 at 5:00 o'clock on the evening of
Friday, February 13. Olson and his sub-
ordinate Ashby, disagreeing with Lan-
driscina only in detail, also testified that
they had given Landriscina the $35,000 in
two installments—$10,000 on the morn-
ing of February 13 and $25,000 that same
afternoon.
Although Landriscina’s version as to
the date of the $10,000 payment was con-
tradicted by Ashby and Olson as to the
particular day, the transaction was cor-
roborated by them in all other details.
Landriscina testified that he received
from Olson an envelope containing ten
$1000 bills and gave them to Levin at the
first meeting. Shortly thereafter Lan-
driscina said he was contacted by Levin,
who reported that the “fellow who was
to take care of the jury” would not ac-
cept bills of such large denominations.
Landriscina then took the ten $1000 bills
back to the Union office and arranged to
have the money changed. He thereafter
delivered $10,000 to Levin in smaller bills.
Then, at the second meeting, he transfer-
red the remaining $25,000 in small bills,
Olson testified that he cashed a $35,000
Union check on February 13 and gave
Landriscina $10,000 in $1,000 bills to “fix
the Cross trial.” Ashby testified that he
saw the exchange of bills and that Olson
then instructed Ashby to give Landris-
cina the remaining $25,000 when he asked
for it. Ashby confirmed that Landris-
cina returned and said Levin claimed the
bills were unacceptable because they were
too large. Ashby then took the entire
$35,000 to the National Savings and
Trust Company, changed the bills into
twenties and gave Landriscina $10,000
and put the rest in the safe.
same afternoon, Landriscina re
the $25,000 which he gave |
February 18.
Later the
turned for
.evin later on
The Government also introduced the
check which Olson cashed to obt
$35,000, dated February 12; bank mark-
ings on it indicate that it was cashed on
February 13 thus supporting the view of
those who said the currency passed on the
13th. Both Landriscina and Olson agreed
that, whatever the day, the $35,000 was
paid to Levin in two installments.
ain the
Levin denied receiving any of the
ey and claimed that he could not. have
been involved at all because as a diligent
observer of the Jewish Sabbath he would
have been home on Long Island by sun-
down on February 13, the time fixed by
two witnesses of the delivery of the sec-
ond payment of $25,000. Levin's denial
on this score was the essence of his de-
fense.
mon-
Taking full advantage of the one-day
confusion in dates in the Fovernment's
3. Levin admitted later receiving fees from
Landriscina for lobbying on behalf of the
union,
Judge Bazelon in his dissent from the
original affirmance of Levin's conviction
stated :
LEVIN v. CLARK
Cite as 108 F.2d 1209 (1967) 1219
case, i. e.,, whether the firs lelivery of
money took place on February 12 or Feb-
ruary 13, Levin sought to show that Ash-
by and Olson were telling the truth about
cashing the $35,000 since hi records
on this were undisputed, but that Lan-
driscina was lying and had kel {he mon-
ey for himself or passed it on {0 someone
else. Defense counsel hinted ‘peatedly
to the jury in his cross-examination of
Landriscina and later in his irgument,
that Landriscina stood in line to become
President of the Union if Cross were con-
victed of perjury, indicating {hat Lan-
drisecina had more to gain than the $35,-
000 by not passing it on to Levi Levin
also sought to impeach Landiiscina by
demonstrating his memory faults with
respect to the events of Fob, v, 1959,
including the fact that Landri ina had
previously stated to Government investi-
gators that the first delivery had heen on
February 9, and by showing that I.andri-
scina had pled guilty to conspiracy to ob-
struct justice under another count of the
same indictment on which Appell
tried.4
Notwithstanding the great efforts of
the defense to exploit the one-da, discrep-
ancy between the Landriscina anid Olson-
Ashby versions, the jury had little hes-
itancy about believing the ex of
int was
sence
Landrisgina’s account of transfe ing the
money#®o Levin. After an eight-day trial,
the jury promptly found Levin guilty.
The verdict indicates the jurors consid-
ered the mistake of one day--a variance
of a kind found in most lawsuits was a
natural result of the passage of fine; the
verdict also shows the jury rejected the
various efforts made to impeach pro;
tion evidence.
secu-
The new “evidence” which the
professes to believe might have
majority
changed
the jury verdict is a statement Iv Ben-
jamin McCeney, Assistant Treasurer at
the National Savings and Trust Company,
[ Landriscina’s) testimony was thos he
ject to impeachment and was in fact
impeached. Tig testimony as to date
and times was contradicted
prosecution witnesses.
by her
119 U.S. App.D.C. at 158, 338 ¥. 2d ut 277.
that while he remembered Olson cashing
the $35,000 check, he did “not recall Mr.
Ashby coming in to change the thousand
dollar bills to smaller ones.” It must be
emphasized that this piece of supposed
“new evidence” is not evidence in the
sense that it tends to prove any fact but is
really non-evidence. McCeney’s state-
ment was that he did mot remember
whether Ashby came in to exchange the
bills; he did not say that he remembered
that Ashby did not change the bills. It
is simply a reflection of non-recall, made
to Government investigators in Septem-
ber, 1962, three and one-half years after
the transaction and long before the ha-
beas corpus hearing on the “new evi-
dence” claim.
It is inconceivable to me—as it was to
the presiding trial judge—that this non-
recall could now be said to have had any
effect on the jury. A few reasons are
immediately apparent:
(1) The jury could reasonably have
concluded that it is not surprising that a
bank officer of a large and busy bank
could not remember changing some mon-
ey three and one-half years after the
event even with $1,000 bills involved.5
(2) The majority totally fails to give
weight to the fact that Appellant's trial
counsel, experienced in criminal mat-
ters, indicated that he did not regard
McCeney’s testimony as important when
trial counsel testified at the habeas cor-
5. The majority seems to attach some sig-
nificance to the fact that McCeney could
remember cashing the $35,000 check but
could not remember changing the bills.
It was in March of 1961 that government
investigators first asked McCeney and
Hooper about cashing the $35,000 check;
this was two years after the event. They
could not remember it. When the investi-
gators returned to the bank the next
day, McCeney and Hooper did recall cash-
ing the check; the evidence adduced at
the habeas corpus hearing showed that
they recalled cashing the check upon
consulting bank records. McCeney was
not asked about changing bills until Sep-
tember of 1062—a year and a half after
being asked about cashing the check and
three and a half years after the event.
The Bank's records of large hill transac-
1220 408 FEDERAL REPORTER, 2d SERIES
pus hearing. The attorney testified in
the habeas corpus hearing that he had
learned from the Cross trial, in advance
of the Levin trial, that the large bills had
been changed into smaller ones. He had
previously spoken to McCeney to de-
termine if there would be any records
of the cashing of the $35,000 check and
learned that they had not been retained.
After learning of the exchange of bills
at the Cross trial, the attorney testified:
“I did not again go to the bank because I
had mo reason to. I had previously been
told by two people that they had no
records.” The logical inference is that
he was aware that the bank officers
could not remember and that without
records he would not be inclined to
want their testimony. Apparently trial
counsel believed that any non-recollection
would not seem significant to his de-
fense tactics or to the jury, In other
words, we now reverse for a new trial
because “evidence” was not available
that would apparently not have been used
if it were!
That Levin’s trial counsel, when called
at the habeas corpus hearing, believed
that this so-called “evidence” would
not have influenced the jury undoubtedly
flows from the fact that the jury be-
lieved Landriscina’s testimony that he
gave the money to Levin despite the fact
that Landriscina was contradicted as to
the details and time by his own associ-
ates and documentary evidence, and de-
tions had been destroyed by that time.
Is it any wonder, then, that three and
one-half years after the event, the Bank
officers could not remember the exchange
when the only reason they could remem-
ber cashing the check two years after
the event was that they had consulted
their records? The majority's suggestion,
therefore, that it is significant that Mec-
Ceney remembered the cashing but not
the exchange is baseless.
The majority in note 28 states that “at
the habeas hearing MecCeney and Hooper
recalled details of the transaction which
would not be contained in records.”
But the testimony which the majority
relies upon is a description by bank of-
ficers of established bank procedures con-
cerning large bill transactions, Of course,
no records were needed to recall this.
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LEVIN v. CLARK
1221 Cite as 408 F.2d 1209 (1967)
spite the fact that he was impeached by
his role in the criminal conspiracy and
by his possible motives for not delivering
the money. Can there be any rational
basis to believe that the jury might
have changed the verdict if they had
heard a statement of non-recall from a
subsidiary participant about a tangential
detail when the other, more important
considerations did not sway them?
(3) There is nothing whatever, except
hindsight, to suggest that the defense
would have made any use of McCeney's
statement, and indeed I can hardly
imagine that any experienced trial law-
yer, such as Levin had, would have want-
ed to indicate to the jury the weakness of
its case by calling McCeney as its wit-
ness only to have him say he “could not
remember.” 8 Moreover, the thrust of
any defense utilization of McCeney’s
non-recall would have been to argue that
the exchange of bills never occurred,
But to demonstrate that, Appellant would
have had to argue that not only wag
Landriscina lying, but also Olson and
Ashby, since all three testified that the
$1,000 bills had been exchanged for
smaller denominations. As | pointed out
in my first dissent, it is more difficult
to persuade a jury that three men are
lying than, as Levin attempted to do at
trial, that one is.
I regret the occasion to dissent in’
these terms, except that it hecomes
necessary to demonstrate the glib but
fallacious assumptions which underlie
the majority's action. Even more I
regret this Court's repeated actions
which plainly tel] prisoners, “jail-house”
lawyers and the bar generally that if
they can find a way to continue the war-
fare with society long enough they may
finally reap the natural rewards of lost
6. One other aspect of the majority opinion
deserves comment. Tt is hinted that ithe
statement of Hooper at the 1966 habeas
corpus hearing—two years after the trial
—is somehow relevant to whether the
Government should have told the defense
in 1964 of the McCeney statement. But
the Government did not learn about that
fact until the 1966 hearing. Can the
Government be expected to give the de-
evidence and fading memories, New
trials, long after the event necurred,
place enormous obstacles in (hh way of
just results. It is on this cry basis
that courts dismiss indictmon for lack
of speedy trial. Compare Williams v.
United States, 102 U.S.App.D).C!. 51, 250
F.2d 19 (1957). Here the prosecution
must now re-try a case concer ing events
of February, 1959, and by {i time of
the new trial nearly nine year: will have
elapsed. On this record, 1 feel fully
warranted in charging the majority with
another instance of appellate “nit pick-
ing.” This kind of perversion of the
judicial process has gravely hampered
speedy and certain justice in iis juris-
diction,
Before BAZELON, Chief Jud; e, DAN-
AHER, BURGER, WRIGHT, MceGOW-
AN, TAMM, LEVENTHATI, an ROBIN-
SON, Circuit Judges, in Cham rs.
ORDER
PER CURIAM.
On consideration of appellee's Petition
for Rehearing, En Bane, and appellant's
opposition thereto, it is
ORDERED by the Court, J. Bane,
that appellee’s aforesaid petition is de-
nied.
Cirgnit Judges DANAHER, BURGER
and TAMM would grant appellee's peti-
tion for rehearing en bane.
A separate statement of Circuit Judge
McGOWAN, concurred in by Circuit
Judges LEVENTHAL and ROR! NSON,
as to why he voted against rehearing
en banc is attached.
A separate statement of Circuit Judge
WRIGHT as to why he voted aginst re-
hearing en banc is attached.
fense information it did not have at the
time of trial? The majority's confusion
is indicated by the statement in their
first opinion that they “do not suggest
that the government is required to * x % disclose all ity evidence, how over
insignificant, to the defense,” Levin vy,
Katzenbach, 124 ILS. App. D.C. 158. 162,
363 F.2d 287, 291 (1966), but they now
act to the contrary.