*3 warnings signing and indicating form he CUDAHY, Circuit and Before PELL them, interrogated understood Ross was FAIRCHILD, Circuit and Senior Judges police. Initially he made several con- Judge. statements, flicting permitted then was to privately talk pastor with his and with his FAIRCHILD, Judge. Senior Circuit girlfriend. police The chief fol- said that sought Petitioner Ross a writ of habeas lowing questioning further petitioner court, corpus alleging from the district confessed to murder. He also testified abridged the state trial court had his consti- personally that he had known Ross for rights by refusing tutional to include a “quite that, some time” opinion, and in his plain guilty” among “not form the verdict Ross was able conform his conduct given jury. forms to the The district court requirements of the day law on the in ques- petition, finding dismissed the presumptive- witness, pathologist, tion. Another testi- ly 2254(d), correct under 28 U.S.C. and § fied as to injuries the nature of the and the unrebutted, findings certain of the state cause of the victim’s death. Then As- appellate court. We conclude that the dis- Attorney sistant State’s who had taken deferring trict court erred in to those rul- confession was prosecution called ings justification and find no in record evidence, read into which he did without for the state trial court’s failure submit objection defense. He further said the not Accordingly, verdict form. that as a result of his conversations with we reverse judgment appealed Ross, he opinion petitioner was of the and remand case with directions or- was able to conform his conduct to the petitioner der release of unless he again requirements of the law. theAt close of brought period to trial within in defined case, the state’s a defense motion for opinion. directed verdict was denied. Background Factual Ross did not take the in stand his own behalf, witnesses, but instead called several The giving evidence rise to the state including mother, girlfriend, his his three opinion court conviction is detailed psychologists, psychiatrist. and one The Appellate Illinois, Court People essentially of each was directed Ross, 68 Ill.App.3d 20 Ill.Dec. toward establishing that Ross suffered from (1978), N.E.2d 897 we only briefly and need mental illness. summarize prosecution it here. The first witness, son, the victim’s testified evidence, At the close a conference 10, 1975, March he discovered mother’s on instructions was held in the judge’s body apartment their lying in a bathtub chambers. The state submitted four ver- of bloody full apparently water. She had given (1) dict forms to be jury: been beaten guilty; (2) (3) and stabbed several times. He not guilty; guilty by not told the police. insanity summoned reason of need of further He also treatment; said that his petitioner (4) mother and mental guilty by Ross, whom she known for insanity several reason of and not in need of fur- years, had frequently had coffee in the ther mental following treatment. The col- apartment together. police The chief loquy then then ensued: the time of the commission of the go the verdicts “. .. Let’s over
Court:
rule,
verdicts,
as a
we
general
acts.... While
brought up four
They
...
now
not condone the actions of the trial
guilty.
I don’t think
could
plain
there,
judge
prosecution
and counsel for the
you?”
do
you even want
verdict,
omitting
guilty’
defense
‘not
“Yes, your Honor.”
Counsel:
Defense
peculiar
presented
given the
set of facts
can walk out on the
“So he
Court:
record,
we believe the trial
by this
hospital?
going
without
street
only gave
when
correctly
acted
given.
objec
No
verdicts will
Three
insanity’
guilty by reason
ver-
‘not
....”1
tions
dicts.”
was eliminat-
simple
form
(Em-
gized position appeal amicus amicus brief. their an they curiae and have what filed denominate 938 1980) 387, 403, (7th Cady, 635 F.2d 588-589 Cir. Williams, 430 U.S.
Brewer v. testimony at was (1977); (whether witness’ trial 1232, 1241-42, 51 L.Ed.2d S.Ct. 335, 341-342, 100 prior testimony witness’ at Sullivan, consistent with Cuyle 446 U.S. hearing preliminary not a “factual” deter (1980). 1714-15, L.Ed.2d 333 S.Ct. 2254(d)). meaning of § mination within had Here, finding counsel appellate Consequently, state court’s stipulated to commission “in effect” “in a finding that there had effect” been histor not an ascertainment of the acts was stipulation doing to the acts does events, as fact, a recital of actual ical nor presumption under enjoy a of correctness if had the case the court would have been 2254(d) open to review on collater § express stipulation had been stated an petition.5 attack via a federal habeas al made, to. stipulated listed the matters “finding” As to the other deferred Rather, appellate use of court’s namely, that “the district court — clear, an it was term “in effect” makes as to whether or not question of fact [Ross] consequences of the appraisal legal . . . was never . .. committed acts The court the defense at trial. conduct of problems. trial —we find several raised” at words, that the actions saying, other finding, Cuyler, If this be deemed a cf. equiva petitioner’s legally were 341-342, supra, 446 U.S. guilt stipulation lent to on all issues clearly supported by 1714-15 it sufficiently peti insanity save waived petitioner first had place, record. In the rights to have tioner’s Amendment Sixth pleaded guilty, thereby raising possi all proved beyond those crime elements questions place, of fact. In the second ble Plainly, ruling doubt. reasonable although the defense did not evi introduce law, or at best a mixed conclusion petitioner not committed the dence that had repre of law and fact. It determination acts, such failure is no means a conces underlying ele finding sented not a sion, argued defense counsel cred mental facts or resolution of witness guilt evidence of was insuffi ibility, application legal but instead the cient. e.g., governing waiver of those standards — *6 Janis, rights, particularly significant, see Brookhart v. We the clos constitutional find 1, 1245, ing argument 384 86 16 313 which S.Ct. L.Ed.2d defense counsel U.S. (1966);4 Zerbst, 458, that plainly Johnson v. 304 U.S. shows Ross did not concede 464, 1019, 1023, (1938) 58 82 1461 the offense but in fact chal S.Ct. L.Ed. commission of lenged —to the historical of the case. the state’s ar facts See evidence.6 Counsel 395-397, Brewer, at 402- supra, gued eyewitness 430 U.S. that there no evidence 404, 1237-39, 1241-42 (conclusion 97 at been the the that Ross had at scene of S.Ct. crime,7 right that his to counsel there defendant waived that was no show ing not a “factual” determination within that had out of washed blood stains meaning 2254(d)); Cuyler, damp see also su clothes recovered at the time of § 342, pra, arrest,8 at 100 446 U.S. S.Ct. at 1715 the that there was insufficient time (conclusion laundering lawyers multiple place,9 undertook such have taken for to representation not a “factual” fact the Ross’ determina evidence of 2254(d)); “really just tion Ruiz meaning guilt within v. a confession” which § (cid:127) federally guar- already question forcefully presented 4. of a “The a waiver had the right is anteed constitutional ... a federal would ruled that he withhold question controlled federal law.” 384 U.S. form. 4, at at 86 S.Ct. 1247. Record, p. 7. at 222. Abstract right 5. Whether Ross in fact waived to his jury as to decision the commission of acts pp. 8. Id. at 225-226. is later text. discussed in the 226, pp. p. Id. at see id. at 227-229. 9. also 6. Ross Counsel’s did not commit might plausibly the crime have even more
939 While jury presentation did believe.10 If Ross of this alternative doing acts, had conceded theory was not as insanity robust as the make these would have been no reason to ample defense there is evidence that it was arguments plainly challenged urged,12 indeed and we see no reason to sufficiency of the state’s evidence discount that effort. We conclude that the petitioner’s guilt. Added to these state appellate state court’s determination that closing ments on is the fact that counsel petitioner questioned never at trial the do cross-examined state’s witnesses ing of the criminal support acts without at point establishing succeeded in record, and therefore hold that the victim’s son had recollection no clearly district court erred in deferring to having mother and Ross ever had a finding. disagreement.11 That admission tended unlikely show that it was that Ross had crime, perpetrate
reason
this violent
III.
presumably
purpose
was elicited for the
remains, however,
The issue still
undermining
against
the state’s case
as to whether the state trial court abridged
too,
petitioner.
it is
So
difficult
under
Ross’
rights by
constitutional
refusing to
stand
defense motion for
directed
give
not guilty
jury.
form to the
Es
verdict at the end of
state’s evidence as
sentially, the question here is whether Ross
challenge
other than a
to the evidence of
right
jury
waived his
to a
determination
crime,
up
involvement
Ross’
since
all
except
did,
issues
sanity. Unless he
point
signifi
in the trial there was no
nothing
there was
to relieve that state of
tending
cant evidence
establish
Ross
its
prove
burden to
mentally
ill.
each element of the
beyond
crime
doubt,
a reasonable
see In Re
sure,
To
the main
of the de-
thrust
Winship,
90
U.S.
fense’s case was to show that Ross was
(1970),
L.Ed.2d
and even an inadvertent
mentally incompetent and thus could not be
failure to
submit the not
form to the
legally responsible
found
homicide.
reversal,
require
would
see Braley v.
preclude
That
tactic did not
the defense
Gladden,
(9th
403 F.2d
alternatively arguing
that,
1968);13
from
Cir.
—as
did—
fact,
Edwards,
Ross
not commit
the crime.
Commonwealth
394 Pa.
p.
excerpts
following
ning,
10.
Id. at
241.
he said the defendant did
but
he was
points
the record demonstrate
that at several
argued
you
lunch,
insane. When he
before
urged
need not credit
something
he did
different. He said the de-
tending
petitioner’s
evidence
to establish the
fendant
even
didn’t
do it.”
guilt:
.,”
“if
... believe
.
the confession
.
Record, p.
Abstract
226;
p.
id.
“if
believe this evidence
really just
p.
which is
.
a confession
. .id.
Braley,
deny
In
the defendant did not
that he
*7
241;
lady
“if
believe . ..
that he stabbed a
homicide,
committed the
but
instead insisted
that was
a
like mother
to him for no reason
or,
highly
that
the
at
time
was
intoxicated
...,” id.;
under the sun
“if
believe that he
alternatively,
legally
that
insane. The
...,”
(Emphasis added.)
beat
id.
Ninth Circuit wrote:
attempted
explain
to
Counsel
Ross’ confes-
oversight
furnishing
in
“[T]he
not
the not
in
sion
a manner consistent with his innocence
guilty
along
opposite
verdict form
with the
by arguing
past friendship
that his
with several
constituted,
effect,
severely
form
in
a
adverse
officers,
police
psychological
his
need
be
judge,
impermissibly
comment
trial
the
an
stage,”
general
“center
and his
mental
imba-
grave
judicial
of
insinuation
attitude toward
making
lance contributed to the
of a fabricated
guilt
the ultimate issue of
or innocence. Ac-
please
police
statement
intended to
his
friends.
cordingly, we hold that the influence exerted
Record,
p.
11. Abstract of
at
31.
judge, although
the trial
unintended and
probably resulting
oversight,
from a clerk’s
prosecutor
recognized, during
The
12.
his sum-
significantly irregular
require
was so
toas
a
mation,
argued
that defense counsel had
both
new trial.”
closing:
theories on
147 A.2d
(6th
1980).15
Perini,
v.
guilty
F.2d 121
Cir.
the
sub
614
he wanted
not
form
Thereafter,
judge
jury.
the
mitted
the
no
there was
show
The facts
ver
pertinent part:
“Three
commented
writing, by
orally or
stipulation,
express
objections.”
given.
will
No
dicts
be
counsel,
the acts
conceding
his
petitioner or
stating
will
judge
Whether
the
“there
crime.
The
the
which constituted
objections,”
objec
no
or “there are no
be
arguably consti
might
which
events at trial
tions,”
objec
asking
or
“are
no
were
are the statements
tute a waiver
16simply
be
from
tions?”
cannot
ascertained
during the
form
verdict
made in chambers
occasion,
regardless
what
rele-
cold record.17 But
the sole
the
On that
conference.
judge
jury
Edwards, notwithstanding
order a
to find the defend-
the de-
cannot
In
judge’s
Pennsylvania
guilty
something.
slaying,
The
ant
trial
a
the
fendant admitted
precisely
in this case did
that.”
Supreme
fail-
instruction
the trial court’s
held that
Court
(Emphasis
original.)
Id.
guilty verdict
with the
ure to
a not
form
include
finding
error
jury
In
the constitutional
harmless
given
deprived the
other five forms
doubt,
beyond a
court
prose-
reasonable
the
reasoned:
rejecting
fair
In
the
accused of a
trial.
argued
the
“The
at trial never
defense
the
could not
defendant
cution’s
guilty.
not
It ar-
defendant should be found
judge’s
prejudiced by
due
have
the
action
gued
be
alternatively,
not
that the defendant should
found
acquit-
jury
unlikelihood of the
extreme
insanity,
guilty by
or
reason
ting
slayer, the court
an admitted
wrote:
guilty
a lesser
first
included offense of
jury
decide
must be left to
“[I]t still
degree
The
murder.
defendant admitted
slayer
not
had or did
whether an admitted
people
re-
murder to numerous other
justification
what he
or excuse for
have
murder
counted the details of the
from
alone
It is the trial and the trial
did....
jury.
people
Five
witness stand to the
testi-
is as-
decides whether a defendant
petitioner
fied that the
admitted the murder
suredly guilty....
what
matter with
[N]o
petitioner
to them. A friend of the
testified
certainty
Judge
culpability
views the
occasions,
petitioner
on
different
two
bar,
at
is still
accused
defendant
going
kill his
stated that he was
only
wife.
safeguards
all
fair trial
entitled to
of the
of a
judge’s
instruction that the
effect
Constitution,
and the
announced
jury
acquit
was to
could
defendant
law the land.”
possibility
jury
minimize the
nullification.
147 A.2d
314-315.
Only
acquitted
irrational
an
could
Krzeminski,
outright.”
judge
15. In
state trial
instruct-
the defendant
jury:
Id. at 125.
ed the
Insofar as the harmless error doctrine is con-
defendant, having
open
“The
admitted
cerned,
clearly
present
distinguisha-
case is
deceased,
court that he killed the
a verdict
since
trial
case,
ble
Krzeminski
Ross contest-
guilty
cannot be returned in this
homicide, see
ed whether he committed the
your duty
and it is
determine whether
text,
accompanying
supra,
notes 6-11 and
ar-
first
defendant
is
of murder
in the
believed,
gued
that his confession need
be
degree,
degree,
murder in the second
or man-
text,
accompanying
supra,
see note 10 and
order,
slaughter in that
the de-
or whether
no
than
confes-
there was
evidence other
guilty by
insanity.”
fendant is not
reason of
directly linking
find
sion
him to
crime. We
614
at 124.
F.2d
inapplicable to
the doctrine of harmless error
The Sixth Circuit found that this constituted
appeal.
“patent
Id.
It
constitutional violation.”
wrote:
question
following
There
no
mark
evidence,
overwhelming
matter how
“No
objections”
transcript,
words
but we
“no
cannot
direct
verdict of
chary
place
weight
would
much
indeed
it must find
defendant
instruct
guilty.
that fact where there is no other clue as to the
States,
e.g. Sparf
See
v.
United
may
meaning,
trial court’s
since the omission
294,
L.Ed.
[15
343]
U.S.
(1895);
stenogra-
have been
pher.
inadvertent error
an
States,
Schwachter
United
(6th
1956)
*8
F.2d
644
cited.
Cir.
and cases
Any
constitutionally
Appellate
rule is
The
concluded that
doubt
this
Illinois
Court
17.
by
supra,
judge’s
Winship,
“defense
based was removed
In re
comment
indicated that
364,
objecting
397
at
at
U.S.
S.Ct.
which
counsel was not
exclusion
[90
1072]
every
simple
guilty’
prosecution prove
mandates that the
‘not
verdict
the record.”
690,
beyond
a
of a
28
941
judge’s
inquiry
state-
no
meaning
is attributed
the defendant
the trial
ment,
colloquy
we think it clear that the
judge; compare, e.g., Palfy, supra, 448 F.2d
330;
did not constitute a waiver of Ross’
Strother,
a whole
at
supra,
1. The hereto an viciousness of the crime demonstrated by an attached extract from the confession *10 It me in analyzing seems to the I think we also heard significance closing argument of the we there was a scar his on chin. is only That should, just we of do in case instruc- part of it. There strange are a lot of and tions, totality argument consider the things unusual that happened to Ted segments and not take out overall growing while he up. point view ap- context. From it strangest Probable the thing that I plain pears quite to me that defense counsel think we can consider was Ted’s relation- nothing engage more than a carefully ship with his mother. It doesn’t seem which, in ploy orchestrated artful view of got Ted and along his mother very well. present majority opinion, has reaped a appears very It that Ted was bitter and he seeking per- dividend which was not very resentful toward his mother. haps anticipate did not even at time of Ted, She testified about argument. ploy, putting quite That eight years old, time he was sort of simply, expert witnesses not blamed his having diabetic condition. strongly supporting come down insanity strength defense could be lent to it pursued Counsel then at some length the herring pointing the red out defi- relationship that Ross had had with his own in the ciencies direct evidence such as there mother, mentioning specific various inci- having been insufficient time for Ross to young dents. While a he boy had been clothing his have laundered after the crime hunting day shotgun. with a His moth- jurors hope the ultimate er told him gun. to clean the He refused way bring compromise could back the pointed gun and at her and started to verdict which bring, he asked them to pull the trigger. At another time for no guilty by insanity. reason apparent reason and out of nowhere Ross Because I majority do think that picked had up pot of hot coffee and opinion argument has misread the final I thrown it at his mother. At another time opening turn to it in some detail. After when teenager picked he was a he up had referring to opening his statement that the chair, baby’s held it over his head and tried pieces the puzzle together would come he to kill his mother. they said that together had now come pointed any Counsel out that child could then he said up build a certain amount of resentment I told that when stops this case a disciplinary parent Ted, toward “but for point, picture will see a of a resentment, seems that sick, bitterness, his his very disturbed, very very twisted intense, man, was a young mind of a lot more a lot more Theodore unusual Ross. very strange.” Counsel also mentioned pursued He support then further for his years incident when Ross was 16 old he thesis in the evidence of difficulties that came home and told his mother he wanted had beset Ross as a child: marry girlfriend his and upon her refusal evidence, As we went over the those give he going consent stated he was pieces stand, that came from the I think kill himself. The mother later went growing evidence shows that while empty medicine chest and found six bottles up, Ted injuries received a lot of to his spent and Ross days next three head. boy, When he was a little when he hospital. It appears to me devel- four, got about he a deep cut on the opment of this relationship mother-hate top his deep head. It was so his moth- showing er while bizarre pattern she behavior said could see his skull. But there very were several further was a lead-in to gashes relationship other bad his his head. with the decedent which counsel character- ized life, in final as a “mother-son
Later in inwas an automobile relationship.” Implicit that, again. thought accident where hurt his head said, You they dig glass “probably heard that as counsel out Ross did look upon his head. figure,” Mrs. Abrams a mother schizo- type latent Two of them said sud- his mother could insane dislike *11 schizophre- paranoid phrenia. Two said to the substitute moth- denly be transferred you that all of them told nia. But four figure. er very serious mental schizophrenia is a upon dwelling other continued Counsel severe, disease, very that that it is instability. The chief of evidence mental world, and perception of the affects the kid, strange as a Ross characterized police way one acts and it affects the that was, quote, ‘removed a He was loner. “he has one’s behaviour. control one to he fantacized a lot.” reality,’ that time, approxi- having finished By this testimony of then referred Counsel argument, counsel of his mately one-fourth pregnant by him girlfriend who was Ross’s principal regard what as the I summarized re- homicide. Counsel at the time of argument: of the thrust was that she now fact ferred reciting testify merely al- this I am come back to time college had So and by those upset: say that I am confident though she was this to presented we have pieces of evidence that nevertheless, she came back and But you. I kept promise to very that we have our impor- I think was what testified to very effec- only thing we is the think that demonstrated case. This tant this we could important to the issues in evidence that really tively by is best that is that Ross was and still provide this case. Ted this evi- promised from legally insane. I on at least one occasion said that She reasonable you that would a Lynn and dence Ted and his sister she watched on Ron, watched, sanity of Ted Ross picked a lit- doubt as brother-in-law had, 10th, 1975, present your reason like Dr. to be they tle kitten for no March up Jekyl Hyde, picked kitten and Mr. at this time. minds up against the wall slammed it sever- and evi- up the state’s The counsel then took no reason. al times for out, dence, already has pointing as they on that went out dates. She said deficiencies, indicated, that minor such only They usually went movies. The had been no technicians from there go that liked to kind of movies Ted were laboratory testify that there crime people where see were disaster movies with two-by-four no stains blood people being hurt. dying, were were confession, which, had according he to Ross’ that, They might pictures see a lot like Throughout re- struck the decedent. were of interest to Ted scenes of disaster is an under- mainder of the Ross. emphasis on the mental instabili- current referring her Counsel continued spent At ty point Ross. one did think that Ross that she army reminiscing about his own some time capacity had the to conform his behavior to (more three of the experience pages than by law, was required what is “because it had record) developed which had he burglary, for after time he arrested army although the doctors had pneumonia said, said, ‘Why you it?’ He T she do him he was not sick: told part think don’t know.’ I story you to tell repeat But I death, way felt about reason. He think, we help what I underline thought way.” of death tell that Ted anybody need us don’t up expert sick, something wrong took Counsel then testimo- is with Ross is mind; evi ny: you believe this if confession, really just if dence testify that Ted You heard doctors lady this, he you stabbed believe very young still is a sick Ross was and no like him for a mother doc- every man. Each and those sun,2 stabbed schizophrenic. under the Ted reason tors classified reason, apparent at his Just as “for out thrown it mother. Ross had no where,” up picked pot hot of no coffee and times; proved believe twenty-seven that if that Ross was of sound mind at the two-by-four any- with a or time the offense was beat her committed. else, thing I think have to also be- very attorneys Thére are few who cannot Ross was insane. lieve that Ted jury behaving relate some instance of a bringing an aberrant manner and in a deficiencies in state’s ver- Among other justification which was any dict without argued, was the case counsel matter or attorneys, whatsoever at least the missing jewelry some and he apparently or regard one reason another so it. If it emphasized charged Ross not been so judgment were not no n. o. would ever stealing burglary theft or and that there *12 however, upheld. question, be I whether of it. any evidence This ambiva- protection constitutional a fair trial followed, it lent remark then “I think is a protect right should be extended to unfair, little but you bit nevertheless have jury have an aberrative verdict. That is possible signifi- to consider it.” Also of what have would resulted here if there had fairness, although, may cance in straight been a not guilty verdict. There- correctly reported, not have tran- been fore, event, any say unless we harmless script shows: exist, never error can it appears me that somebody twenty- We know he stabbed the writ granted of habeas should not money? jewelry? six times. For Or present case. I any would therefore for aspects In other of the I majority opinion, foregoing of the reasons the judg- affirm accepting have elimi- difficulty in that the ment of the district court. nation of a form of not “un- verdict event, In any noting that the majority against constitutionally directed a verdict opinion colloquy finds between the If petitioner.” any possibili- there was counsel on give the refusal to ty jury whatsoever that this would straight not-guilty verdict did form not con- found on the record in this case defend- waiver right stitute a of Ross’ to have the any ant not form guilty, and was not issue, on pass appears this to me that indicate, so say all the needed it would have been more appropriate, rath- agree any was that it upon was unable to er than to set aside trial the state court present verdict forms and the court to have conviction remanded case to the hung with a jury. Juries that are not able evidentiary hearing district court for an agree are unknown in the law. In- determine what happen did at the time of juries writing deed instances are known of the colloquy and whether it could have been other matters on verdict all forms. Here properly considered to have a binding been that needed to be done was to out the cross part waiver on of Ross. reference to mental condition of the on one not guilty including forms such a reference. APPENDIX TO DISSENT The majority opinion signifi- attaches Q. long space How time did cance to the that the moved fact defense stab her? for a of the directed verdict the end right A. One after the other. state’s I sig- evidence. find little basis for Q. Okay. long go How on? nificance is in this. fact that there no ghost of for a a chance directed verdict A. or twenty Fifteen seconds. being granted customarily does not seem to Q. happened? Then what filing discourage the of such a In motion. stopped A. Then she struggling and she any event, case, particular this by the crawled over entrance her bed- counsel, final by indicated room next the wall. having the jury already advised Q. Okay. opening statement unsoundness defense, mind was to be motion I got by A. And went over and two appropriate support directed verdict was placed I had four that earlier window opened contention state had not when I it in the afternoon. couple A. Then I hit her in the head a the air come in just to let Q. Was that over and knocked times and then she rolled house? I hit her the mirror down and broke A. Yes. one more time. by with that two Q. you do What did Q. you hit her that time? Where did you describe it for By way, could four? us? I that’s what A. In the head. believe her, the last one. killed It it was a two four.
A. I believe five or two six. have been a two could Q. say anything during pe- she Did long. feet It was about four hitting were her over riod of time while long? Q. four feet About the head? long. a half to four feet
A. Three and speak. A. I don’t believe she could Q. you do with that? What did Q. Why you say do that? covering A. I then hit her. She jammed Because I had the knife into A. that. with her elbow and I hit
head her throat. Q. covering her head with both Was she
elbows?
A. No. Just one.
Q. One hand like that?
A. Yes.
Q. you saying anything Was she this time? KOPACK, Edward Sr. Edward Kopack, Jr., Petitioners,
A. No. Q. Okay. you What did do? couple A. I hit her in the head a NATIONAL LABOR RELATIONS
times. BOARD, Respondent, Q. many How times?
A. I don’t remember. Co., Vogt-Conant Intervenor-Respondent. Q. you any any- Did see bones smash or No. 80-1783. thing like that? A. I believe when I hit her the elbow Appeals, United States Court of I broke her arm. I don’t know. Then I hit Circuit. Seventh
her three or four times in the head. Argued Oct. 1981. Q. you anything Did hear crack Decided Jan. anything you doing head or when were it? A. All I heard was the noise from the 24,1982. May Certiorari Denied hitting board her head. See
Q. you tell Can us what noise sound-
ed like? twenty-two.
A. Like a
Q. sharp A noise? twenty-two pistol.
A. A
Q. sharp cracking It was a sound?
A. Yes.
Q. And after hit her over the head a times,
couple then what did do?