*1 i63 FIRE ANTONELLI UNITED STATES v. Inc., CO., al. WORKS et
No. 192. Appeals, Circuit.
Circuit Second Court
May 2, 1946. *2 Gen., Sp. Atty. Kelley, Jr., M. Asst. to
John on the appellee. brief), , HAND, Before L. CLARK FRANK, Judges. Circuit *3 CLARK, Judge. Circuit brings appeal up This for review a charges improper of of mu- of manufacture upon two indictments nitions of war August filed in the District Court on charged The indictment first Co., present appellants, Antonelli Fireworks Inc., Antonelli, Joseph and Amerigo John DeRitis, Barbollo; Dominick in fifteen arid manufacture wilfully counts with defective of riiaterial in violation of 50 U.S.C.A. war charged while the second these same § Piteo, FRANK, dissenting. others, Circuit and Bennie Judge, defendánts three Bianchi, Costanza, in a Angelo Frank and single conspiracy count with to defraud violation United States its war effort in Piteo of 18 88.1 and Bianchi U.S.C.A. § pleaded court guilty. The consolidated indictments; a two after trial which 10, 1944, and May from lasted to Jurie produced 4,000 of nearly pages, record jury acquitted charges the defendants of all indictment, of the first the cor- but found poration, Antonelli, brothers, the DeRitis guilty charged Barbollo sec- ond indictment. Costanza was found also, guilty. imposed upon D.C., fines F.Supp. 870. corporation Antonelli, upon and sen- Maloney, William Rochester, Y., of N. J. imprisonment eighteen tences of for months appellant for Co., Antonelli Fireworks Inc. Barbollo, upon years upon and for two George Skivington, Rochester, of N. appeal J. other individuals. Their re- seeks Y., for appellant Antonelli. versal of their grounds convictions on the insufficiency of evidence, of errors in Maloney, Rochester, Charles P. of N. Y. trial, repugnancy conduct (Ray Fowler, Rochester, Y., N. appellants the brief for verdict. Joseph DeRitis and Barbollo), appellants DeRitis, for John Jo- Inc., Co., Antonelli Fireworks was a DeRitis, seph and Barbollo. corporation, family all the stock of which R. Norman Kirchgraber, treasurer, president First its Asst. U. owned Atty., Buffalo, S. N. (George Amerigo Y. the defendant L. Antonelli. John Grobe, Atty., Buffalo, Y., DeRitis, S.U. Joseph stepsons Antonelli, N. and and statute, first § 50 U.S.C.A. 103— defined the statute. The second stat- directly appeal, ute, conspiracy in issue on this U.S.C.A. § is the well-known acquittal view penalties of státute with defendants of fine charges upon provides imprisonment up years based for to two for it— imprisonment years conspire fine or up any to 30 those who “either to commit who, those when the United States is at offense or to injure any war intent to. or obstruct States in defraud man- carrying war, wilfully any it in purpose.” on the ner or for make
a defective manner war material as
<334 factory; gravity, uniform center of superintendents were ^and An- serious- would be Barbollo, stepdaughter functioning the bombs husband of organ- impaired ly lesser
tonelli, consolidation Although foreman. was a have been number called of increments than appear to ized in debts specifications. until No- He further testified than its assets consistently greater requirement purpose for burster vember, 1941, when, Chemical the through the charges dis- Army, it obtained of the bombs was Warfare Service 20% covering, courage fighters approaching fire contract 3,000,000 alia, incen- had fallen. bombs too soon after loading inter cents, price of diary unit bombs indictment, 33% The second that on which $1,005,000. This munitions total guilty, charged the defendants found *4 boon, for the an immediate was contract conspiracy, period them with over pay- an advance only made government not March until to de- June money 30%, provided the but also ment of prosecution fraud the United States equipment, salaries buildings and for new by production of of the war defective corporate employees, retirement of of and grenades, by misrepresentations bombs and $15,000. Produc- roughly indebtedness of inspec- the United States of munitions to February, started in tion bombs of plant, by employment tors stationed at the corporation obtained July, the and compliance speci- of to avoid schemes ques- here contract government the presentment fications, by and of false 1,000,000M-14 tion, of for the manufacture prohibited claims the as price a unit of incendiary grenades at 17% statute, by U.S.C.A. the false-claims § $175,000. magne- cents, of Since aor total acts, alleged many most of overt the the of time not available at sium was given of the which consisted instructions permit- was contract, corporation the bomb required employees to fewer than the use bomb, steel-jacket a substitute ted to make and mismark number of increments option re- government’s the subject to munitions, were em- based on while others magnesium days’ notice. on 30 quire pf materials, rejected clustering ployment bombs, making of false of defective specifica- contained strict Both contracts by the defend- certificates invoices The contract tions of manufacture. ants themselves. inspection imposed obligation of bombs the indictment, contractor; gre- govern- support and the primarily upon the To testimony primarily upon provided that invoices ment relied nade contract corporation employees bear the certifi- of the defendant produced materials inspectors was the bill located at contractor and of cation of respects plant. all was manu- conditions in That there defective accurate established; thoroughly both specification complied was facturing with. particu- truly appalling are here amounts seems we it reached contracts by charge was that a likewise clear. This was shown larly concerned specified report Therm-8, incendiary testimony mixture a disinterested or grenade specialist, weight, X-ray to be loaded into who tests was stated bomb, steel-jacket or magne- products, made random of Antonelli whether equal approximately fairly representative incre- sium, four of the' en- and thus successively ments, output, he found out of 777 steel- each increment tire per bombs, Eighty only in- jacket cent of contained four consolidated.2 incendiary crements, ordinary of a were to that out total of 272 bombs tested, bombs, twenty per magnesium cent were to bombs none contained trial, charges. On the increments 23 contained four burster made with Service, Similarly shocking Chemical Warfare increments. re- three a colonel expert reported incendiary a result of on muni- were visual qualified as sults as employment tions, sepa- Chief of Incendiaries testing testified necessary Branch, Warfare Service. In- was Chemical increments obtain rate magnesium January, 1943, required bombs the number was of increments to three. lowered
.635 deed, dis- seriously jury’s did not ed the the defendants extent conclusion misproduction, pute manufacturing, great of extensive fact defective but rather the deficiencies contended that cast oblivi- serious on asserted doubts corporate to the ousness entirely accidental and officials what due production, necessity going on, sudden mass further fact that exist, did they, workers, intent paid criminal and not the who were entirely part hour, on the of subordinate gain stood fraud. from the employees. therefore, Turning, to the de however, quite clear, that the It is assignment fendants’ extensive errors justified otherwise. Two concluding trial, conduct of we dismiss witnesses, inspector one government and the outset their contention that the consoli plant employee, the other a testified that dation of the two indictments itself consti they had seen Antonelli take re- himself summary tuted reversible error. The jected grenades place box and out indictments and of the al production; outgoing them line ready given amply demonstrates the near equally positive and five witnesses were defendants, identity similarity part observation of similar acts *5 necessarily charged, the offenses and the or of Barbollo DeRitis brothers. The overlapping sup nature of in the evidence testimony by plant workers that defend- place port of each. The of the case facts had ants them to use fewer than instructed within the U.S.C.A. well terms of § specified (at number of increments authorizing consolidation “there warning times full them to use the num- charges against person for the several presence inspec- in the government ber of transaction, for aGtor or two or more same rejected gren- and tors) to use bombs and together.” or connected acts transactions ades abundant that detailed review was Smith, Cir., See United v. States impracticable unnecessary. It is suf- 83; States, App.D. McNeil 2d v. United say ficient to summary of that a way 698; Federal C. Rules foreman, together with two subordinate Procedure, Ad Rules Criminal employees, personal- that Antonelli testified visory thereto. It Committee Notes ly them rejected instructed either use question repeatedly held that material, specified or to charges, omit the court, one for consolidation is both; that five witnesses testified to re- only will reversed for decision that its ceiving Joseph similar instructions from United States abuse of discretion. DeRitis, and two from DeRitis. One Lotsch, Cir., John certiorari de F.2d promised witness stated that DeRitis John v. United nied Lotsch her a raise more turning out work 1500; L.Ed. 59 S.Ct. charges, using deficient number 276; Perlstein, Cir., 120F.2d Firotto v. presence her that in he told defendant 532; 124F.2d Jarvis Piteo to see that his instructions were car- States, 1 cer employees out. Two ried testified that .82 denied tiorari production literally rate was doubled Silverman, 3 544; United States number of use of insufficient incre- Cir., 106 ments. discretion, We can find no abuse but each verdict as to defendant employment judicial a wise rather econ- amply therefore supported by was the evi omy, in the consolidation ordered here. true, out, point dence. It as defendants joint admirably And the trial was conduct- employees pains that there were ed, great keep who testi for the court took pro charges fied separate, been exhorted to summarizing in specifications; duce accordance with each indictment and the related stat- questions credibility jury. emphasizing are for the utes and in difference express testimony by impres required There was proof support conviction array employees support True, sive con in- each case. defendants some special viction. And genuity presence additional credence is afford- assert the rea- subpoena sons case be- duction under of the same records consolidation alleged “inflammatory cause dis elements” records whose existence was so subpoena entirely in the But other covered. rea first indictment. was demands; Simon, being charge, government sonable -defrauding that of its books, effort, properly actual its considered control of- war cannot be setting upon produce void of called In re Nation of emotional content them. 1944; May June, Investing Corporation, al Public Utility difference be- and the only degree, Sykes, In re tween the two can one D.C.S.D.N. Y., 13,707; page Fed.Cas. In re justifying duplicating No. sub- separate Kirsch, Conn., stantially C. similar evidence C. F. affirmed Sperry’s Will, with dis- Actually trials. acted Re holding defendants on Misc. crimination N.Y.S. Its direction lesser, clearly proven, charge; manager and more him as of Antonelli Fireworks only not harm- Note, were entirely proper. defendants not A.L.R. ed, materially advan- probably longer but were and cases cited. That he taged by the consolidation. have held such at the time office service actually significant is .not the books conclusion as We reach like control, en since the his vigorous defendants’ contention production; titled and the to force their denying the motion court erred issue, there was whether mandate sup corporation president for the pro person power reached the pression records certain and return of duce them. which, acquired through they allege, were These and other issues were considered appeared illegal *6 and seizure. search by the District Court on motion before the end from the evidence sometime disposed trial and in a of careful and dis June, May beginning of of criminating opinion reported F.Supp. agent Bureau of Investi the Federal of fact, aAs matter of court the did or of Antonelli gation the called at the office der of papers the return seized in Anton permission granted by and was Fireworks house; they elli’s not involved Simon, manager, to examine cer its office correctly pointed here. And the court out pres corporate Defendants’ records. tain corporate right papers toas ob the to illegality argument "to ent ject only corporation. was available to the upon contention that their based search is DeVasto, Cir., position to consent on in a Simon was not 26, 29, 78 A.L.R. certiorari denied De to corporation. is difficult behalf of the Vasto United U.S. S. however, agent see, could how the federal objections to Ct. L.Ed. 573. The more permission obtained have the admission of material in evidence individual, proper appears Simon since to and, were restated at after exten have sole of control both the office testimony of Simon and FBI sive States, 9 and the records. Raine v. United agents, again Irt were overruled. all this certiorari denied error, but there was no careful considera 467. Simon him L.Ed. rights tion of the of the accused. had self that Antonelli vested- in testified books, objections complete supervision him Various are made to the any corporate by prosecuting attorney. officerwould have had to summation permission or that of An obtain either his examined each these with cáre We have Any order take doubt as type-described tonelli in them. and feel authorization, however, Dubrin, 2 original by Simon’s States v. in United us dispelled by course of later certiorari denied must be de Dubrin v. S.Ct; velopments, shortly since after the event 1-107, question Antonelli, attempt Simon the not related it to who unusual objection, expressly made no but the trial of the accused into trial to turn approved original Certainly'the his action. Since the first counsel. improper, objection, upon search was therefore counsel’s reference based objection evidence, pro- can be no to Simon’s later dis- merits little certain letters government counsel, Antonelli’s cussion. was since the function One defendant determining questions Chemical was ex- letter to a district official fact clusively Service, its own. stating unless the Warfare factory for land on rent which Finally much con is made $150, he increased from $50 stood was cluding “I sentence of summation: owner, Mrs. De- would be sued one confidence, cherish an ladies overwhelming Ritis. The other letter from was a gentlemen, one the belief that each relating contracting officer of the Service you, you after instructed have been request monthly as $875 to Antonelli’s for Court, your each will render verdict storage component parts for owned malice, sympathy, without without government. mere- Counsel in summation you will each render a verdict of ly brought already appeared what out had you proudly justified always can evidence, objection namely, without fellowmen, presence your here those allegedly pressing first creditor home who labor and labored unceas- have Antonelli, actually Amerigo letter Mrs. ingly in an honest effort to manufacture from a being DeRitis her former name war of us as well as those munitions marriage, monthly stor- the $875 beyond who for the seas look us age in view demanded was exorbitant things they them in need sustain being paid fact that the rent hour of extreme sacrifice.” corporation premises $130 for its entire Immediately invited, thereafter the court per light charges month. In the here pressed for, indeed exceptions from the involved, quite appropriate, if it was you defendants (“Do something important, the evidence before the say?- I waiting you you as to attitude towards defendants’ something offer,” and, etc.) attempts over- government, including made, promised to take care of the it, negotiations should be reach charge matter in its apparently course —a emphasized. completely acceptable defendants, they made no suggestion. Equally Then unmeritorious under began charge circumstances extended direc- here are defendants’ ob *7 jury, tions to jections the expressions by par- made with prose certain detailed the ticularity, disregard in government’s entirety cutor of in their belief the the witness government remarks of in guilt es and counsel accused, the to our the and that as overseas, men any eliminate prejudice guilt beyond the evidence established a rea passion might falsely or sonable doubt. While the be consid- summations patriotism, ered duty by its do mak- reported, defense counsel part were not ing unbiased challenged argument determination of the the is- express here was fully acceptable sues. ly This was reply stated to counsel as a to an assertion of a time, exceptions at the the attorney made at the government defense counsel charge close of the case; concerned other knew this to be a matters weak con the entirely. Indeed, no quite motion for text a mis- shows this to be the re natural trial, suggestion mistrial, or sponse ever to that assertion. Defendants are made. The defendants’ position attitude fact complain now no of what was naively corporate disclosed in the Socony defend- thus invited. United States v. argument, adopted by Co., ant’s the Oil other Vacuum U.S. fendants, to the effect while the court 60 S.Ct. L.Ed. Of this course “agreed” objections with the at- merely and “did put affirmation of belief into words tempt to at least lessen the awful effect of very prosecution implied; what the fact of inflammatory charge,” charge this “this did jury effect on the and'its was therefore re hoped effect,” have the Meyer States, the mote most. v. United guilt. spite still found This was Moreover, pos any ques- by fact that the came with forthright sible error cured carefully discriminating charge instructing tion between the eventually disregard only indictments and found remarks of the outset to these í>3« discover, So far we no case defrauding govern- can charge upon the compelled mistrial, an order of without thought, now after
ment. .Hence therefor, prayer at all objec- under event, circumstances was so the summation is that comparable fact, In this. a verdict to be cured tionable as Co., supra, Socony-Vacuum States v. Oil Moreover, corrective guilty! 237-243, came U.S. sharp complete and charge was so Supreme L.Ed. Court sus- toas immediately the summation after tained, during this as “incidental judge could statements be effective if words trial,” long likely to influence minds practical alterna- operate as a cure. The jurors, a much more quite extensive sum- urged upon is therefore tive now us painting picture group mation a sordid clear; words of these few it is that of influential or millionaires billionaires thoroughly vitiated government counsel so had power who over the to make taken patiently tried case long and prices, lawyers,” disclosing that “a hundred situa- nothing judge to save could do Bar,” very “the cream of the American duty tion, to force was his and that it working day were night to confuse though it parties even upon mistrial defendants, issues the case requested. had not begging govern- the jury not to fail the applied Now had the ex- judge not earnestly ment highest officials who did, tensive corrective measures he obviously desired few a conviction. So question still be whether reversal questioned present words in the case are required. Though the remarks would be from the tirade the ma- criticized in far. overzealous, ill they advised seem States, opinion jority in Viereck v. United insignificant properly considered 236, 247, 252, S.Ct. fact, they setting. their themselves had over- 734—where ju- are no more than admonition to objection ruled the argument —or thus rors to observe oath of officeand pervasive and continuous misconduct duty done. satisfaction of well prosecutor, hin- without substantial objectionable They only by became associa- drance judge, Berger from the v. Unit- here, charge objec- with the but that tion ed L. S.Ct. cir- tion association is offset insignificant And Ed. 1314. com- Thus, cumstances. counsel pared to the extensive and unchecked sum- out, pointed had had never once while upheld mation in Ballard v. United attempt- “sabotage” used the word before now the Su- prejudice ed to instill avoid preme Court. war,” speciál “some concern because of. the yet very the defendants had used much. Next, defendants assert error *8 course, Of in trials wartime are under in charge the failure of the court to pressure emotions; special cer- it is jury might presumption draw a against attempts tainly postpone to all not feasible United States from its failure to at use production to meet and correct defects in the trial certain witnesses which it had extensive as were here uncovered until as subpoenaed. ques All of the witnesses in date of That the uncertain close. the war’s appear employees tion to have been at the natural language anything this added plant exception one, with the who was feelings of Americans that time is seri- at inspector government there stationed. ously fact it shows little to be doubted. In prosecution produced on trial three intelligence American confidence in the government inspectors and a total of seven inapt jurors imagine that few to these employees factory (in teen addition long words the end of trial could pleaded guilty), to the two defendants who important adjunct prosecution’s to repeti testimony was fact some whose case, they unchallenged. remained even beyond the for tious need corroboration. judge rebuke of slightest indication, But when There is not nor sure, any there would no rea- may indulge presumption, seem swift we for not ground attributing any the witnesses called were in such emo- better sonable position irresponsibility jury. operations to to have observed this tional plant were, good than their Evidence in and of those who or that character is than itself testimony anything would be more sufficient a reasonable doubt to raise except held any as to the cumulative. we defendant such when, drawn. presumption may judgment no adverse in the the de jury, States, 2 Gregorio De 7 fendant’s good v. United character is so to raise 295, F.2d Evi- a Wigmore positive 296. on reasonable See also doubt of the evidence dence, 3d Ed. 287. Nor is him.” Defendants now claim § charge reason disagree court’s state- constituted error with the reversible light States, ment equally Edgington that the witnesses avail- v. United sides, able to both au- 41 L.Ed. which case the U.S. S.Ct. are 467. But extensive thorities also clear no unfavorable review of the au presumption thorities may be Egan v. Unit- has not so convinced us. drawn. States, 958; App.D.C. 384, ed As we stated Kreiner v. Moyer States, v. United F.2d States, supra, again in Nash v. 624.3 States, 2 Cir., 54 F.2d cer n tiorari denied 285 Defendants’ claim of U.S. error S.Ct. charge court’s L.Ed. recently character evidence is and more in United Kelley, supra, perhaps one, important Edging- their most States all that the for has appearance ton case support prec some from the holds is the trial must court not tell the edents. consider Defendant Antonelli introduced the character ministers, already evidence when the six witnesses —two them three scales men, balance. if business and one a “But minor avoids that pitfall, did, official—all of as here he many whom stated that he Antonelli has as reputation among good honesty variants regard had a which to choose as general; integrity, good evidence spoke and two of whom also character any other, to be like as to his used gets character. Since once defense counsel be request jury, fore made no charge for a character they less told on testimony, grounds about admission, required charge it, what subject. they likely shall do with Kreiner v. United more States, Cir., sensibly.” use are to Nash v. Unit certiorari supra, ed denied S.Ct. charge Here the Kelley, cryptic and abbrevi ated; directly Kinard but it did v. United run afoul of App.D.C. 250, Edgington pitfall. appears did, It to have how words: “A ever, attempt charge suggest been an these num degree weight ber of witnesses have testified here of character evidence reputation doubt, of Antonelli and sufficient to raise Costánza reasonable truth, veracity, honesty though integrity. in total effect it hardly than more These are known as character of a witnesses. statement truism. 3 True, attempted way” defendants “in to show she testified a certain she nothing fear”; (3) intimidation the witnesses “would have agents Costanza, acquitted FBI as to make them unavailable fendant, agents witnesses. But as defense the evidence told him spread particularly him, *9 was on the not
—which record were interested obviously by “big shots”; discounted (4) but wanted the —was testimony in amount than was to be of defendant rather less John DeRitis small-community Molinari, expected in a bitter bat- that Theresa her mother depicted, accompany sort here and was to tle of the sister refused him to the unimpressive. (1) because, of defense counsel most consisted of office testimony Piteo, him, agent here- Theresa told an FBI in- defendant had pleaded guilty, to not to that he tried structed her sistently do in who con- so— employee Theresa, plant persuade to testi- denied under employee searching fy, another Piteo most cross-examination. and of More- any similarly; over, pres- (2) her denied that brother had tried to influence her upon answer of another em- was exerted him. Such trivi- affirmative sure inquiry “they”— complete ignoring ployee to the whether stuff deserved the al gave it. hot her that if assured unidentified —had
6á0
incon-
exception;
it done so “it is
Oppenheim
differs
case thus
625,
ceivable
not have made
that he would
States, Cir.,
where.
241 F.
2
v. United
once,
language
abundantly,
his
plain
expressly
the court
told
mis-
should not have been so construed
a reason
testimony could create
character
Bennett, 2
nearly construed.”
v.
United States
only
able
if the evidence
doubt
Cir.,
the Su-
152
now before
F.2d
balanced,
cases
evenly
and from such
preme
Quick, 3
Court.
v.
United States
.other circuits as
832,
v. United
Cir.,
Gold
128 F.2d
final contention
Defendants’
350, where the
Cir.,
States,
102 F.2d
3
view
the verdict.
repugnancy
that-
charges based
give
to
correct
court refused
indictment,
seems
charges
in each
requested
de
case and
the. Edgington
logical
have
entirely
to us
for the
counsel;
v. United
from Colbert
fense
oth
found
not in the
one case and
10,
the-
where
States, App.D.C.,.
F.2d
correctly
er.
the trial court
informed
As
give
inadvertently
failed
court
it,
the finding of
intent or reason
either
case where
requested charge in a doubtful
gov
believe that
their acts would deter
guilt was
only
defendant’s
witness as to
effort, necessary
war
ernment
it.s
v. United
accomplice;
from Miller
held
guilty
have
the defendants
under
968,
where the
States,
120 F.2d
indictment,
to con
first
essential
jury’s
consideration
court limited
jury,-
viction under
when
the second. The
;
case
part of the
character evidence to one
returning
in
further
courtroom for
States, Cir.,
Perara v. United
and from
structions,
showed
this distinction
indulged in
515, where the court
considered, .
question
for the
asked
unreliability
prejudicial
as to the
remarks
whether,
intent
evidence showed no
Indeed
public opinion as
character.
effort,
knowledge
hinder
war
beyond the re
gone far
circuits
defects,
finding required
such a
dismissal
quirements
present
to sustain
the first
verdict
indictment. Its eventual
Edging-
refusing
give the
courts
then,
appears,
product
of discrimina
requested and mere
charge
ton
even
tion,
illogic.
rather
justifica
than
This
the evi
ly
to consider
instructing
result,
although obvious,
tion
as it saw
weight
give
dence
it such
necessary, however,
no means
since
States, 4
fit. Mannix United
long
appellate
established that
States, Cir.,
250;
Haffa v. United
in
seeming
will
not reverse
727,
1,
281 U.S.
36 F.2d
certiorari denied
United
consistency in the
Dunn
verdict.
Cap
240,
also
L.Ed.
S.Ct.
States,
390,
189,
284 U.S.
76 L.Ed.
5,
States,
61 F.2d
riola v. United
161;
United
A.L.R.
Selvester v.
States,
United
certiorari denied Walsh v.
42 L.Ed.
170 U.S.
S.Ct.
579;
671, 53
L.Ed.
S.Ct.
287 U.S.
1029;
Dotterweich, 320
United States v.
States, Cir., 27 Baugh
v. United
277, 64
88 L.Ed.
U.S.
S.Ct.
639, 49
S.Ct.
certiorari denied
Pandolfi, Cir.,
States
Kushner,
Pandolfi
certiorari
v. United
denied
denied
certiorari
642 629, Cir., F. 1314, 2 73 reversing prosecution 79 L.Ed. work of begin
direction
1939,
States,
278;
308
anew,
2d
Bruno v. United
deadening
morale
those
to the
198,
L.Ed.
294,
84
developing U.S.
60 S.Ct.
spent years in
already
who have
257,
921; Bollen-
Cir.,
2
F.2d
reversing
105
a
Of course
a
verdict.
justifying
case
402, re-
States, 66
af- bach v.
S.Ct.
to errors
United
acutely
we must be
sensitive
freedom;
Cir.,
versing, 2
F.2d
but
147'
199.
rights
fecting human
law
equal
there is an
demand that
2.
omitted
have been
As crucial facts
fair
long and
way
should have its
when a
opin-
majority
glossed
from or
over in the
conclu-
proceeded to
natural
trial has
ion, I must narrate them:
denying that de-
improperly
sion. We are
Some of the defendants
Italian-born
say
mand we
that such trivialities
One of
and others of
descent.
Italian
of a
urged
here
bombastic words
—three
Antonelli,
them,
Ital
testified
a decided
by the
prosecutor
immediately
deflated
jargon.
ian-American
American soldiers
court,
evidence
charge
character
on
a
Italy
fighting
still
when the
attempted
cau-
an obvious
which
state
closing arguments
tried. The
tion,
repugnancy in
verdicts as
different
8, 1944, just after
jury occurred on June
defrauding,
all
sabotage and
etc.—offset
Army’s
.Normandy had
our
be
invasion
patient
trial
efforts of
careful
(and perhaps
gun.
In those circumstances
preserve
attributes of
the essential-
observation, “If
bearing in mind an ancient
fair trial.
you
prejudice you must
to excite
do
want
close,
jurors may
Convictions affirmed.
at
so that the
more
said.”) govern
easily
you
remember what
concluded his summation with
ment counsel
FRANK,
(dissenting).
Judge
Circuit
an over
sentence: “I
this final
cherish
I
respect
have no
humorless
for the
* *
*
in the belief
whelming confidence
self-righteous
person
sort
who has
* *
*
of,
you will render a verdict
alone,
always
firm conviction
proudly justified in the
you can be
regiment,
step. According-
the entire
presence
fellowmen, those here at
your
ly,
colleagues (whom I
my
when all
con-
labor and have labored unceas
home who
repeated-
among
judges)
sider
the ablest of
ingly in
honest
to manufacture
effort
ly
conclusion, my
at
arrive
a certain
sense
us be
war as well as those
munitions of
usually
my
humor
downs
doubts
things
seas who
to us
yond the
look
nudges
acquiescence. But on the
me into
hour
they need
sustain them in their
subject
in criminal
error”
“harmless
for the defend
extreme
Counsel
sacrifice.”
trials,
deep
myself,
find
thereupon
improper
objected to these
ants
matter,
to follow
unable
seriousness
remarks.
persist
I am
that course.1
emboldened to
minimum,
Supreme
disagreement
At
so the
Court
my
by the fact that three
us,
Supreme
years
judge,
tells
circum
past
few
times
stances,
waiting
colleagues
objec
“without
my
reversed
for their
Court has
tion,”
Berger
promptly employed
United
views
that issue. See
v.
84-89,
1935,
78,
repressive
States,
“stern
measures.”4
295 U.S.
S.Ct.
rebuke
opinions
Cir.,
14,
16;
my
Field,
15,
dissenting
Co. v.
137 F.
Smelting
Refining
Rubenstein,
&
St. Louis
Henke,
Co. v.
States v.
667;
665,
915;
Liss, 2
Walk
v.
State,
Bennett,
517,
995;
319,
er
Ark.
212 S.W.
United States v.
324;
Co.,
Williams v. Columbia
Taxicab
F.2d 342.
973;
Mo.App.,
970,
Chap.
2 Aristotle, Rhetoric,
III,
O’Neill v.
S.W.
Book
State,
infra,
189 Wis.
207 N.W.
note 69.
14. See
People
282;
Levan,
cf.
N.Y.
Viereck
page
63 S.Ct.
64 N.E.2d
Field, supra
[137
Union Pacific v.
L.Ed. 734.
Judge
15],
4 Berger
Sanborn said:
“A trial
Irst time speak par- thinking. “The I think I mil a time Court: there came said He ticularly about knew to that. this Government counsel when be weak case. Ladies feel gentlemen, Maloney: I “Mr. I wish to also that a and add expression departure have the that I counsel’s belief in the in of his view my preju- right, perhaps, was in the also to tell what defendants was a inflammatory. say you simply that Mr. An- dicial the to defendants and mind. I to you Angelo agree tonelli, as Cos- “The Court: I to DeRitis and John _ Joseph tanzo, also, previously Di- that I Dominick Barbolla had made guilty speak corporation note of it. I intend to in are Ritis and the my charge.” Jury charge your had the Grand appears against As placed indictment. from the words I ital- them in this have objec- icized, judge interpreted say you solemnly, the evi- the to that this I beyond made, tions thus estab- about “inflam- doubt far the dence reasonable matory” summation, to character of the He then concluded fact.” lishes that solely juror’s prosecutor’s fellow- the directed the with his remarks about honesty gov- “beyond the including seas remarks about the those men falsity things and the ernment’s witnesses look to who us judge, defendants’ witnesses. The as will in hour to their need sustain them seen, “speak particu- said he would extreme sacrifice.” larly immediately charge. colloquy Thereupon that” in his about this judge, After that assurance occurred: colloquy something you continued as follows: Do have Court: “The you closing waiting, you say? “Mr. Fowler: Read the remarks if I to was just something I of counsel. to offer won- now. had der “(Closing Kelly read.) you any exceptions of Mr. note comments to please, exceptions If the now, “Mr. Fowler: I ? Court remarks except counsel, Yes, to the statement of it while the do “Mr. Corbett: closing counsel, jury will remarks of that he ? is here expect justify -this verdict have to will “The The Court: you prefer with- before the men overseas. to make them Do here. Maloney: join objec- jury? “Mr. I in that out the I tion. would rather. “Mr. Corbett: right, objec- Maloney, is ex- my All “The Court: I “Mr. Jr.: want morning join tomorrow at until cused that. tion noted. I object Maloney, o’clock. I “Mr. Sr.: to the object paragraph stenogra- Skivington: ex- whole last I to and “Mr. Kelly’s summary pher cept inflammatory read. Mr. has entire record in violation of “The Court: That does and. Amerigo defendant, anything, rights An- not mean does not of the referring what was show read. You tonelli. objec- ‘justification Maloney: the record I make the same to the “Mr. corporation, overseas.’ to those verdict tion on behalf objection grounds Maloney, on that his also “Mr. Sr.: And further expressing presence fellowmen, belief that whole his remarks paragraph. veracity was witnesses join inflamma- I would in manner “Mr. Corbett: like done also object objection tory highly prejudicial made, the defend- and I to the inflammatory highly summation whole ants. you particularly prejudicial, to think I am inclined “The Court: ground that, right that I I think that references counsel made in about my boys something say about the summation the serv- will charge. boys being in uniform as calcu- ice and prosecutor): Kelly (the prejudice jury, don’t I re- “Mr. that the lated to this your fully inflammatory. highly Honor. understand Ias know marks expressed is, you point anything “The Court: Is else? Court: “The your testimony morning, to the at o’clock. Tomorrow belief witnesses, your “Whereupon adjournment be- the Government taken was 9th, morning, until tomorrow June defendants lief objection false, and Ms to that was o’clock.” say inflammatory. noted, it was It will be did not charge anything Kelly: Isn’t that his sponsive re- included in the include “Mr. objections given weight charge, “men over- that no expressed? opinions counsel seas’’remarks. try in shall means l4b) gave cautionary show) but a mild highly struction, “strong.” resembling inflammatory anything devoid of rebuke, prejudicial gross least stimu character of such stern or otherwise.5 Thus intervened, lation when a of such patriotic some twelve sentiments hours criminal jurors’ overnight reflections on in wartime during is conducted See, case, e. universally recognized. g., preju to their appeal vicious *14 in, dices had to soak before Viereck had a chance 734;6 247-278, jurors the Peo judge mildly the on counselled Levan, subject ple the (as in a case which 64 N.E. this N.Y. —and day, the When the trial resumed next sire that the of this members would judge charge. at once his. render the delivered a verdict in this case that would 4b justified be See note 4a. fellowmen before their and judge began charge The dis his with a before the men overseas look who must prosecutor’s things necessary cussion of remarks about the to for us home the testimony govern his belief in of the the to sustain them in hour their of need. your may ment’s witnesses that of and disbelief What dict, think of some one ver- outset, I “At the defendants’ witnesses: whether some be a cit- that one want to refer to remarks that were izen several at home or he whether be one of by attorney boys overseas, way made the for the Government the in no in- should yesterday. discussing you your his summation fluence of this consideration employees way the who evidence of Antonelli case. that There is one a ver- and, justified. may in com for the Government dict be The test is not testified given by popularity. paring testimony it to that The test is whether that may justified defendants, the that it was his on evidence and the opinion said on you upon the facts as. them and that the defendants had testi find the falsely you. law it fied and that as the outlines the Government Court I disregard you told I instruct witnesses had the truth. want to now to the re- government you you marks instruct that should counsel now disre that I just opinion gard expressed govern you have that referred to and should way your in no ment timony given truth counsel as to the tes allow them influence government by verdict. You are wit about to commence your falsity this nesses and deliberations tes case timony given by guilt termine the the defendants. these innocence of province important determining the truth or defendants. This is an case falsity any standpoint, for the from Government’s but great alone, prov importance and it and for the is also of that to these may defendants, not be because stand ince invaded even here certainly charged attorney and Court with a serious crime. I think knowledge for the do not mean to it is a Government. I matter of common intentionally done, tendency time infer it but that of war that was there improper express part opin many people it was on such to view ev- erything ion, opinion way and in no in that touches the should war effort with feeling your passion fluence verdict. intense to reach rashly thought “At close of conclusions with his remarks he ex- pressed mind, perhaps, his that solemn belief that all of this zeal help part guilty charges will win defendants were the war. This thought patriotism, sometimes analysis set forth in to be the indictments but them. improper. may it to reveals be far from That also was that. have inadvertently said, We would been do our Government a whether dis-serv- hysteria improper not, ice we allowed the usurp of war him to for express opinion place of calm his as to deliberation in deciding case, these The test and we do defendants. of whether these guilty great injustice. You, these defendants a jurors, defendants must be evidence, approach your found it would be delibera- improper jurors entirely you tion in this case firma determina- your your verdict, may allow deliberation tion that affected whatever opinion expressed. be, I instruct will be reached will have its you disregard opinion now to on the com- foundation evidence or on infer- pletely.” fairly reasonably ences concerning evidence, your All that said drawn government way overseas” “men remarks of verdict will be influenced very any counsel “At was as follows: other consideration.” expressed (318 end of his remarks he a de- There Court said U.S. at accomplices dealing nesses were self-confessed 2d see the cases crim be important I.7 Never —more was consider during inal World trials War —that uncontradicted, any my colleagues testimony, fore has court said what able much of it say agents practiced remarks were in deadly here —that say jurors “no more than admonition I therefore timidation of witnesses. have government’s oath of and thus observe their office “strong.” recognize Nor unre done.” duty satisfaction of well courts accomplices’ testimony9a re liability heretofore deemed such compressed intimi party’s marks into have declared that a harmless often sentence,8 single “badge teaches experience dation of witnesses is poisonous suggestion Evi Wigmore, kind weakness” of case. his always says: be needs no elaboration. shall show dence “It has As § inference, indeed, low, frequently one held understood —the the courts *15 by type experience simplest of error in cannot be eradicated human —that cautionary party’s im by an a fraud in the instruction or even falsehood or other cause, offending preparation censuring presentation mediate severe and his I suppression counsel. think this er or of evidence For these reasons fabrication his markedly re by spoliation, ror harmful that it bribery was so and all similar quires conduct, against and trial. in reversal new fair receivable him is ground I On that dissent. dication his case consciousness his one, ais weak or unfounded from that and “strong” A case has been defined as one may consciousness be inferred the fact it guilt in which the evidence “over self of the lack of cause’s truth and merit. whelming,” States, Berger v. United 295 The inference thus not apply itself does 89, 629, at 55 1314.9 U.S. 78 S.Ct. 79 L.Ed. any specific cause, necessarily to fact in the Appendix In an to this stat dissent have operates, indefinitely but strongly, though significant ed some detail some of the whole alleged mass facts my colleagues evidence to have but ** * referred; constituting his quite cause sketchily inadequately As seen, only general principle it applies will there not that the common to all conduct, forms of reasonably necessary, these it is could have found defendants not e., usually possible, nor (i. reasonably guilty, not could have con to discriminate precedents apply cluded that the defective work one or an was due other form. inexperience Roughly classifying them, in fraud to the but Antonelli, they admit all competence personal forms of defend falsifica by party ants, and tion the course of employees) the liti also gation; among important fabrication or government’s wit manufacture of evi 36, 341, quote page page 64 N.E.2d which I shall 87 L. 63 S.Ct. passion 734): when later. “At a time Ed. 9 by heightened prejudice cited emotions also cases in notes 12 participation great 12a, infra. onr stirred 9a war, testimony accomplices re While we do doubt these high verdict, will judge sustain the fact addressed to were marks accept ly prejudicial, instruct of should and that Holmgren good dignity it with to the order v. United fensive caution — States, proceedings 509, 524, 30 court should S.Ct. which all 778; 19 think that Ann.Cas. Cam We conducted. States, stopped 242 442, dis inetti v. United have counsel's objection.” L.R.A.1917F, waiting for 61 L.Ed. 37 S.Ct. without course 502, Ann.Cas.l917B, States, Cir., F. 1168—serves to show Hall v. United resting 752; August States, v. United on such Berger States, v. United Cir., Elmer v. F. “weak.” 649; People page 89, States, 79 L.Ed. U.S. 1314; States, Esposito, N.Y. Arnold v. 121 N.E. 499, 501, 508; cf. Nanfito government See, g., the remarks of e. App.D.C. 138, People Levan, N.Y. Jones v. United counsel 536, 539.
6á7 dence, subornation, sensible forgery, “strong” that no bribery, evidence is so like; evidence, jury, error, con suppression in had there been no timidation, acquitted,12 for instance eloignment, ceivably concealment *” * * testimony in where the defendant objects witnesses or material his words, Usually guilt.12a effect In other in criminal cases that rule admits his appel applied applies there is error But it substantial to defendants. merely late court will affirm United States as well. Graham, jury, 'government’s it believed the 442.10 defendant’s, witnesses disbelieved course, As, no knows what reasonably could have inferred that defend particular influenced jury’s verdict of if, guilty; ant will affirm case,11 any particular there are occurred, error not rea could possible positions three alternative verdict, sonably have reached a different respect error.” The “harmless first “if, upon any and will reverse conceivable harmful; every error no court to testimony, anything construction day position. takes The second— possible it would have been for a reason Court, Supreme which is that of the able man to have reached other verdict most Eng of the circuit courts 12b than jury.” the one returned lish An summarized thus: courts — (except e., elsewhere, error I have as to “formal As said this rule matters” i. *16 automatically, those etiquette which involve does not work the “mere some * * * conjecture unavoidable;14 trials proced limited is minutiae but ure”)11a presumed prejudicial severely is rule to be does restrict this area e., (i. conjecture.15 improperly to judges have ver means that induced the do ; dict) presumption but themselves is rebutted if not decide the guilt, issue of do 10 Cir., 275; State, States, 268, Tex. ed 4 See also Venable v. 84 264 F. Ho- 784, 354, 520; States, Campbell, J., Cir., 207 bart v. United 785; Cr.R. S.W. 6 F. 299 Hall, People Guy States, 482, App.D.C. in v. 48 12 N.W. United Mich. v. 71 477; 665, Am.Rep. 89, 288, 290; Pasqua 668, 42 107 F.2d cf. Weiss v. cf. v. Unit- States, 331, States, Cir., 524; 321, 330, 522, 523, 308 ed 5 United U.S. 146 F.2d 298; 269, States, Cir., 60 84 L.Ed. v. S.Ct. Lewis Rice 601, 10 States, 522; Cir., 520, 5 4 604. Other such cases will be cited Ky. Commonwealth, 582,
Hudson v. 220 infra. 12a 886; State, States, 200 Motes 295 S.W. Davis v. Ind. See v. United 178 U.S. 88, 161 375, 458, 475, 476, 993, 1150; N.E. 380. S.Ct. 44 L.Ed. 11 Indeed, generally Domres, Cir., courts for United States v. 142 F. 479; Pless, 477, States, learn. McDonald 2d bidden to Simmons v. United 264, 268, 321; 267, 783, Gilstrap, F. cf. U.S. S.Ct. L. State 1300; Hyde States, 412, 163, 165, v. United Ed. 225 U. 205 S.C. 32 S.E.2d 166. 12b 793, 347, 382-384, Bray Judge S. 32 S.Ct. 56 L.Ed. in Rose v. United 614; Ann.Cas.l914A, States, Fabris 334. See Corporation, 2 Foods General also cited note 12. eases 660; (3d Wigmore, my dissenting opinion F.2d 1940) 668, Evidence ed. See in United Rubenstein, Cir., States v. page general 919 at “throws man- verdict its judges impenetrable op- may darkness Just reasonable over the differ tle of jury.” Sunderland, directed, as to when verdict Ver- a erations application dicts, Special, correct or as General and 29 Yale L. (1919). negligence “reasonable man” test J. cas 11a Rouge es, Co., differ v. River what United States a rea would have done if 46 S.Ct. 70 L. sonable no error 269 U.S. 339; supra Bruno v. had been committed. Ed. many Here, contexts, 200]. 60 S.Ct. [308 errors, category which, necessary, pointed out, is as Holmes often This includes precise line, ways, are “cured” in- draw a errors to which, location of various volving immaterial, unavoidably, arbitrary. insubstantial, is mat- (1881) Holmes, ters. The Common Law Horning 127; Holmes, 12 See, g., Law e. v. District of Co- Science—Sci- Law, (1899) lumbia, 12 Harv.L.Rev. L. ence reprinted Holmes, Legal Bray Collected v. United Pa- Ed. 210, 232-233; (1920) pers Sneierson v. Unit- Hudson Coun- persuaded not find defendant credibility jurors consider of the wit -
nesses,
they be
jury’s province.
guilty
regard
do
whether
not invade
without
and dis
government’s witnesses
lieved the
Necessarily, an
does
upper court which
no one can tell
believed defendant’s. But
employ
employs—
either of these rules
true,
a
that that
will not disturb
and we
tacitly
either
in
explicitly or
which
—one
So we use
guesswork.
conviction on mere
volves
defend
own determination
read the
have
approach:
a different
We
innocence,
ant’s
tes
although the
and,
record,
while
not observe
we did
timony is in conflict
court
accepted
witnesses, and
lack the
therefore
heard and seen
the witnesses. Such
credibility,
determining
we be
means of
court will hold an error
if its
“harmless”
lieve the
of those witnesses
judges' believe,
study
from their
government.
by the
do
called
We
printed record,
guilty,
that defendant
know,
course, whether,
been
had we
regardless of
con
judges
whether those
present
trial,
at the
would so have be
we
that the
such
evidence is
absent
vinced
lieved; we
best we can
must do
error,
heard
reasonable
which
conjectural subject.
dealing with such
the witnesses
indubitably
ren
Accordingly,
we hold that defendant
dered
against
a verdict
defendant.
In a
guilty,
consequently
conclude that
proceeds
court which
on that
doctrine
unimportant
fact
whether
in actual
error,
judges
harmless
decide
improper
(which
unknowable)
mat
defendant,
affirming
not by
jury’s
ter,
evidence,
than
rather
induced the
presented
verdict
the record which was
jury’s verdict.” The
of that doctrine
use
jury,
but on markedly different
appellate judges
means that
are return
record—one from which the error has
verdict,
ing
independent
their own
(al
elided. The
judges
impliedly say
sure,
“To
though preceded by)
jury’s,15a
effect:
erroneously
matter
founded on a record
injected
other than that
into the case
considered;
*17
jury may
jury
when was
judges
it
before
for the
have di
are
jury
able
disregard
improper
to and do
verted the
from a consideration
of
matter,
properly
impossible
it
admitted evidence and
but
is
may have
know that the
ty
McCarter,
349,
something
having
Co. v.
is
Water
209 U.S.
like
to draw a line
night
529,
day;
355,
great
828,
28 S.Ct.
52 L.Ed.
14 Ann.
between
there is a
560;
161,
Gavit,
twilight
Irwin
duration
of
it
Cas.
v.
268 U.S.
is neither
night
168,
897;
day;
475,
Supe
question
45
69 L.Ed.
nor
but on the
now
S.Ct.
Mississippi,
though you
court,
rior
Co.
Oil.
v. State of
280
before the
cannot draw
504;
390;.
precise
you
169,
line,
say
74 L.Ed.
S.Ct.
can
on which
U.S.
Empire
Company
Caban,
J.,
Chitty,
Trust
v.
side of
line the
is.”
case
473, 478,
661,
Lavery
Pursell, 1888,
U.S.
71 L.Ed.
said in
v.
S.Ct.
39 Ch.D.
1158;
Haddock,
562,
508, 517,
ought
Haddock
v.
U.S.
“Courts
Justice
not to
632,
525,
631,
867,
puzzled by
ques
26 S.Ct.
50 L.Ed.
such old scholastic
1; Schlesinger
begins
tions
Ann.Cas.
State of Wis
horse’s
where a
tail
consin,
241,
260,
230,
obliged
270 U.S.
46 S.Ct.
and where it ceases.
You
1224;
557,
tail,’
say,
is
43 A.L.R.
Louisville
‘This
horse’s
L.Ed.
a
some time.”
Mayor
Coleman,
Southport
Morriss,
Gas &
Co. v.
Electric
277 U.S.
See also
41,
770;
423,
359, 361;
Atty.
Quak
Q.B.
S.Ct.
General v.
City
Brighton
Cooperative Supp.
er
Cab Co. v. Commonwealth
&
Hove
As
Pennsylvania,
sociation, 1900,
282;
S.Ct.
Ch.
Dash
927;
Magniac, 1891,
Nash v. United
72 L.Ed.
wood v.
3 Ch.
373, 376,
Boyse
Rossborough,
S.Ct.
57 L.Ed.
U.S.
H.L.C.
interesting
Wisconsin,
discussion,
Bullen v. State
45. For
see
625, 630, 631,
Williams,
(1945) 179,
L.Q.Rev.
60 L.
183-
Ed. 830.
15a
peculiarity
appellate
independently,
is of
interest
this
apparently
judges’
indeed
even
is
it
before
verdict
cannot be
ren-
English
Holmes,
unless,
precedent,
courts have made
dered
condition
jury
guilt.
similar observations.
Hobbs v. L. &
has
verdict
returned a
Ry.
(1875)
independent
10 Q.B.
But
L.R.
it is
S. W.
Blackburn,
nevertheless
J.,
concerning
e.,
proc-
jury’s,
remarked
reached
different
i.
Hadley
Baxendale,
“It
rule
ess.
rule,
Bramwell,
said,
vague
and as
B.
judges’ 833)
say
appellate
possibly
did.15b Since the
could
ac-
printed testimony,
verdict
on
the re have
had
rests
been at all unreasonable
juryless
quitted.
my colleagues
sult is a
“trial
affidavits.”15c
Obviously when
doctrine,
they
compel
“strong,”
which does indeed
Such
said
guesswork,
inescapable
that,
judicial
meant no
them-
extensive
more than
without
witnesses,
for a
rejects
they
coürt which
the other
both
selves
be-
observing
positions
two
described above.
lieved
guilty.
defendant
(with
third
It is
doctrine
cer-
which
where, again,
And
the case
bar
exceptions,
Appendix
tain
noted
testimony
Referring
conflict:
hereto,
pertinent here)
contentions, my
one of defendants’
col-
adopted by my colleagues
heretofore
and leagues say
justified in
that “the
they apply
which
here.
concluding
They
that the
otherwise.”
state
amply
supported
verdict “was
the evi-
position
Their
illuminated
their de-
dence,”
“questions
credibility
since
case,
cision in a recent
United States v.
jury.” They
for the
that “the
conclude
Mitchell,
persuasive
strong
evidence was as
conflict,
which the
was in
likely
hotly disputed
it is ever
to be in a
which
held harmless
to-
unfairness
case,”
that, “supported by
the natural
wards
defendant on
part
drawn,”
inferences to be
the verdict was
judge.
my
colleagues
There
refused
justified.”
“thoroughly
expressions
Such
reverse
concluded that
entirely appropriate
would be
if there
“strong,” although
case was
that conclu-
been no error
the course of
trial and
my
opinion as
colleagues’
sion turned on
if the
issue
whether
was suf-
credibility
of the witnesses. On re-
competent
support
ficient
evidence to
hearing
F.2d 831—a revised tran-
—138
verdict,
question
for then the
script
would be
the trial
record dis-
court’s
whether
say
the court
inaccuracy
important
could
closed
“facts”
rationally have
could
found defendants
my colleagues
previously
hád
on
expressions
guilty.
ap-
But such
are not
“strength”
based their views
toas
My colleagues
propriate
(as here)
ad-
the case.
where
the court
nevertheless
“hotly
decision,
no called on
determine
although
whether,
hered to
former
case,”
“questions
turning
contested
reading
one
version
revised
credibility,”
(set
properly
hold
pages
facts
in 138
forth
F.2d at
*18
provisions
15b
Rubenstein,
cific constitutional
those
In United
deliberately employ vague phrases
page 922,
which
“To
I said:
process.’
lawyers
latter,
sure,
such as ‘due
some
maintain that
unlike
(such
jury-trial
judge-made
provi
through
the former
as the
such a
can the
device
justify
sion),
compel
jury-system
made
‘workable.’' But such
—indeed
—liberal
developing judicial
interpretation.
system
jury
See,
a device makes
workable
as
—by
working
differentiation,
(Strangely,
to this
not
it.
those
United States v.
lawyers
judicial
Co.,
144, 152,
Carolene
who endorse this
circum-
Products
ground
vention of
S.Ct.
82 L.Ed.
the Constitution on the
note
Unit
practicality
are,
general,
Pierre,
ed States v.
of
freely
in
St.
those who
240],
agencies
[147
criticize the
administrative
A.L.R.
jury-trial
‘usurpers’;
lawyers
provision
cry
preclude
does
those
all
indignantly
elasticity
construction;
any
agency
parte
in
were
out
such
to
Ex
see
Peterson,
ground
justify
rely
to
on
itself
in
evading
statutory
surely
requirement.)
a
er the test used whether had been was cases, summing jury, m English proper reasonable rected.” after following The up, convict,” in its each could have failed or would of which the trial court erred to Supreme pertinent: jury, convict.”24 Our directions to the are'also “without doubt In lic the would if the conclusion.” In Rex L.Cas., 19, properly directed, rived 'at used' the test properly v. clusion Haddy, Woolmingtdn Prosecutions, test conclusion inevitably was said directed the same conclusion.” 1944, 22-23 was, been [1935] v. (Ct. have come to K.B. would, resisted, The Director '“We properly directed be whether “the “no reasonable v. of 442-446, Lewis, 31 A.C. 462, certainly have ar Crim.App., 1937), cannot that could, the Court the same say that 482-483, of Cox Cr. In jury, Pub they con Rex competence unconscious bias or judges or sonably er or usal of a written or is Seldom any of fied Court’s Most seen the with not a defendant reason of formulation is (not all) adequate inadvertent possible witnesses witnesses, appeal for conjecture solely way this rule is obvious: faulty printed with even moderate court have not heard inaccuracy.” virtually lied of precautionary judging guilty. or—because memory record have the from whether no same.25 As —testi- wheth- per- rea- the “It of exclusionary from, have derived come to rules conclusion than that of, perpetuated which have been rec- did Di come.” In Stirland v. rector of Public Prosecutions, [1944] A.C. ognition of the untrained capacity ju- 105, touching procedure Redd, 1923, tiae mer- Rex 1 K.B. from v. its of a witness asked verdict.” whether knew previously States, the defendant had been convict In Weiler v. negative; 606, 551, 495, 548, fur ed answered in no S.Ct. 89 L.Ed. 496, ther reference to this matter made A.L.R. cited Bruno Court jury. reversed, approval said, before the though al case with The court “We are not . “gave printed record, that defendant’s authorized to look at said wife damning him,” conflicting evidence, most resolve evidence re reach the marking, impossible suppose “It is conclusion that error be was harmless -by ques , guilty. cause we think influenced the defendant was * * * put judgment tions witness That would be to even .the substitute our though jury and, system the witness did not assent under our ” * * * questions juries justice, alone have been entrusted responsibility.” Turner, 1944, See also Rex v. 1 K.B. 463, 471; Beecham, 1921, case, Rex supra, 3 K.B. In Bollenbach’s the Court 464, 468-472; Fisher, place importance Rex v. 1 K. “In view said: 149, 153; Norton, B. by jury Rex Rights, 2 K.B. that trial has in our Bill of supposed Congress it is to be in appellate In McCandless v. tended substitute belief of 342, 347, judges accused, U.S. 80 L. S.Ct. anof however justifiably engendered by Ed. Court said that “harm dead rec ord, change guilt by error” less statute “does not ascertainment of- ruling appropriate judicial well-settled rule guidance, that an under erroneous how rights process may relates ever substantial cumbersome be.” party ground 26 Dissenting opinion .a is a for reversal unless in United States aflirmatively appears' Rubenstein, Cir., whole F.2d 915 ¡record prejudicial” (citing that was not “Observation added: There I Rouge Co., United States v. River 269 U. witnesses’ demeanor is no means in determining 46 S.Ct. fallible method racy S. 70 L.Ed. the accu testimony. Co., Fillipon perfect But, Slate Albion Vein U. 76, 82, having devised, S.Ct. 63 L.Ed. S. method such data are Co., printed Williams v. Great Southern Lumber value. considerable rec 26; 48 necessarily U.S. S.Ct. ord omits such data. The tes up 761.) glib print timony In Bruno v. United of a liar show 287, 293, 294, persuasively than far more an hon Supreme Perhaps, est, ap L.Ed: said that cautious witness. if on Court' n thisstatute prevent peals consisting “to mat intended records we used of talk etiquette pictures ing particu trials, mere concerned motion ters *21 difficulty largely and with the formalities trials and minu- lar could overcome.” aban- reason, harmless, the rule has been rors; departures from held for doned, subjected jury a been and the usually error when has not .to rules those adop- judicial recep- recognized, (e.g., influences jury a without judge sits trial rule, is of the as to the defend- there tion unfair evidence of inadmissible tion In unless rule senseless sum, the ant. the is sustain competent evidence other adopted, the been in and should never a crim- have But if in a trial judgment). a trial. fair defendant has not received a (a) has violation inal been suit there keep from designed to any of these rules — error” 4. Applying the usual “harmless improperly might jurors matter which the doctrine, im generally hold courts defendant —and influence them (or similar misconduct proper remarks him, (c) and (b) adverse to the verdict is 7) 2 of counsel will deemed to that, rule the evidence is (Berger induced verdict violated, jury would 629, States, 78, been reasonable 85-89, a 55 S.Ct. U.S. ver- sanie unquestionably require have reached the 28) and to reversal. For aside, dict, then, is set even may the verdict unless such remarks affect very erroneously frustrated. evid purpose the rule more than admitted is subject, is ence.29 Close students violation point is if such The uneasiness, judicial unnaturalness, typical nerv- on the im seem to be For comments affectation, ousness, hesitation, seeing hearing portance conceal- the witness and steps up deceit, Porter, es, quotations and ment and in Arnstein v. seem see frankness, outspokenness, naturalness, 464; (1898) Cir., Moore, be openness, Facts 154 F.2d qualified properly 963, 967, state- and 991-995. §§ Osborn, Mind the Juror trials The who knows much of ments.” (1937) A writer follows; “Perjury, reports error and 86-98. as 27 As, questions argu- asking instance, in direct for conflicts every objected trial, although present which, an and the to and not ment are swered, improperly seldom the rec mere black white tell introduce into words unfairly prej complete story suggestions as words told ord calculated ap- jury. when combined with the actions udice pearance States, also, e.g., of the actors in this live inter- v. United Hall imagine esting every August 752; Cir., Let drama. us spoken correctly 393; States, word is all writ- out, jury, Perlstein, ten and then read all or judge. read or Is v. United Pierce anyone say wrong Ippolito so foolish as to v. United likely Am decision would not be more litigation, see, e.g., speak- living in civil absence of witnesses same rule * * * Johnson, 279 ers? most official York R. Co. v. The skilful New Central stenographer L.Ed. 706. could not write down all of special appeal Berger’s rule in case is but a [the the varied influences that The jury]. speak application and the the harmless error doctrine witnesses law- yers speak Many not words alone. announced in case. There Bollenbach’s speakers nothing application. eloquent in such an these in other novel ways, People Fielding, to their sometimes detriment and N.Y. advantage. sometimes their Their L.R.A. faces 53 N.E. changing expressions may inflammatory pic- Am.St.Rep. where prove said, reversal, argument truth tures that Court ancient led saying picture * * equal Chinese that a or to a be innocent the defendant “Whether guilty, * Unconsciously opinion words thousand has not ad- he our things law, judged guilty we all tell about ourselves be- certain accordance general appearance. our actions and our fair im- he cause partial had the language prescribes This for of others becomes neces- trial which law * * * sary juror interpret charged person dis- crime. If we * * * juror regard rule The task of the therefore and well-established a sound interpret language guilty, is to he we think without his safeguards pro- words, can, distinguish well tear down one of wo ' * * * protection by society true from false An im- vided portant may phase study precedent citizens, at some this wordless language scrutiny every- depriving doubt a innocent man of aid time thing speaker liberty about life.” indicate his sincerity insincerity. steps re- has been said that such down Indeed it *22 654 Morgan, today, improper such as the tell un us government remarks of coun fortunately, jury usually game sel trial is “a did prejudicial not re constitute error in which liti quiring the are not reversal.33 contestants Also illustrative of the
gants lawyers.”30 experienced but the kind of An case in which misconduct of the lawyer recog writes: is a well United States Attorney “It properly will not nized jury fact in most cases the induce reversal is Robbins v. United States, lawyers ‘tries’ the * * * rather than 987, clients 9 988, where lawyer personality is upon Court said the verdict “rested evi constantly jury gradual before the dence so clear and he and convincing that ly jury absorbs the client’s cause to an ex could not have determined otherwise unconsciously did,” than tent that the' as jury minds there was lawyer’s “compelled verdict, becomes fore cause.”31 to reach” that de spite And the courts said that words That, have Horning misconduct. government’s lawyer likely California, 135, District 254 41 U.S. 53, exceptionally impressive, since off S.Ct. is an L.Ed. Socony- he Vacuum, supra, icial.32 show what is meant “strong” case.33a Exception (as usual) is made when the “strong,” evidence is Very defendant different a case is where the testi- i.e., the evidence guilt is “overwhelm- mony sharply conflict, so that ing,” impossible all but to be- credibility crucial, witnesses sensible lieve have ac- could reasonably found the quitted improper even no remarks either defendant guilty. innocent made; case, in such will no court circumstances, those although, absent er- reverse, seriously matter how gov- ror, the verdict will not be set aside ernment counsel misbehaved. unsupported by the evidence, nevertheless such a “strong” case and therefore Socony-Vacuum United States v. Oil will conviction be reversed Co., U.S. S.Ct. L.Ed. egregious by government misconduct coun- typical exceptional is a There case. surely, And sel. evidence (310 page U.S. at the Court 60 S.Ct. “overwhelming” where, here, pointed 1129) out that L.Ed. only testimony conflict, is the in sharp but sustaining evidence the verdict consisted government’s depends in consider- entirely” "unequivocal testi “almost part accomplices able (see undisputed exhibits, contents mony ' case, Berger’s page at 55 S.Ct. in occasionally on irresistible 33b 1314) 79 L.Ed. and there is undis- facts”; those ac [drawn] ferences puted evidence of (as witness intimidation approval cordingly citing with the Court — Appendix shown hereto). Berger distinguishing v. United States but supra, (310 page There room suggestion is no for the —said Socony-Vacuum case; page 1129) “this Berger’s L.Ed. overruled S.Ct. at case,” approval, not weak therefore latter was cited since evidence”; ing “unavoidably operate duty”; marks official Latham Fed. 425. Latham v. See 420,425, L.R.A.1916D, State, Ala.App. 61, also Cassemus v. Morgan, Review, Book 49 Harv.L. So. Osborn, (1936) Emphasis Mind Rev. cf. added. (1937). (310 page the Juror The Court also said U.S. at Technique (1935) page 852, Goldstein, 1129) Trial argument that much of 219-220. counsel’s usually prosecuting (310 officer is “The “relevant to the issues” and person pages 241, 242, page the com U.S. at considerable influence 60 S.Ct. at munity, represents responsive 1129) fact 84 L.Ed. to “im- sought pressions conveyed” by the United lends importance weight to his utterances. defense. occupy position 33a of a also cases cited in
655 296; Inc., Cir., 3 122 Wings Field, United Beck v. in Viereck Socony-Vacuum, v. 561, 117; 6 114, States, Pierce F.2d United 248, S.Ct. v. page States, 318 at 63 U.S. Levan, Cir., 949, 952, 953; ap- People 86 F.2d v. Moreover, still Court L.Ed. the 87 734. 341; People v. 26, 36, it is 295 64 N.E.2d when N.Y. ‘‘strong case” test usual plies its Fielding, 497, L. harm; 542, 46 so 158 N.Y. 53 N.E. did that an error claimed 67, 495; People v. Am.St.Rep. 60, 641, R.A. States, 70 315 U.S. Glasser United v. 1012; White, 499, 1015, 680, after Ill. 6 457, 365 N.E.2d 463, 86 decided S.Ct. L.Ed. 62 Ky. 95, 60 Commonwealth, reversing a Lickliter 249 v. Court, the Socony-Vacuum, 16 357; State, 355, S.W.2d Cassemus v. conviction, government’s characterized the error, 268; Ala.App. Waldron adding, 61, 267, “Then 75 cf. “strong,” as not So. case 384, 383, Waldron, 361, S.Ct. 15 circumstances v. under some which Holt, 453; 383, brushed reversal, 39 Throckmorton ground cannot L.Ed. v. 474, 552, 567, 21 real 180 45 since there is S.Ct. aside immaterial 663; Cir., 35 States, the provided Lockhart v. United 9 might have chance States, 907; to- impetus 905, scales Middleton United slight swung F.2d v. Cir., 538, 8 guilt.” 49 F.2d ward True, generally that error held This was well a few months rule stated will be consisting of counsel misconduct People Le ago (November 1945) in v. if the trial court deemed cured van, 34-36, 295 N.E.2d N.Y. 64 gave offending counsel promptly where a conviction the court reversed n “stern rebuke,”34 immediately cau- murder; attorney there the district told disregard misconduct. jury tioned appears jury: “Now, this defendant here are of an (a) counsel’s remarks But Army in this room in uniform. court (or he unusually inflammatory character suppose don’t fact that wears misbehaved) flagrantly has otherwise any uniform far as effect thing, means *** “over- is not (b) the evidence your judgment, gentlemen. on (cid:127) everywhere ifi whelming,” almost then many men this uniform wearing are There circuit) (except in this cases parts duty criminal their in other doing cases, everywhere virtually in civil it has City.” world and New beside Harlem York cautionary instruc- neither been held that appreciably longer These were not remarks by'the nor trial judge, other action tion than those counsel in otherwise, way suffices to of rebuke or by court highest But the of New bar. grant error, purge the but that he cases, Berger’s (citing York Viereck’s trial, if he mistrial a new said “It should be supra) ruled follows: so, judgment must be re- does do case now before us the in the ‘ * * * versed. you going court are not told defendant because are to convict this there See, Cir., g., States, e. Pharr 6 v. United being shot, other men other side 771; 767, 770, 48 Towbin v. United country. serving You not to con Cir., 868; States, Volkmor theory all.’ We cannot vict him on 595; States, Cir., United v. however, say, with assurance Skuy States, F. v. United implications 320; disregard the clear States, v. did Robinson United 505, 508, 468; placed emphasis prosecuting 66 A.L.R. at Maytag v. upon damning Cummins, Cir., torney fact 74, 82, de F. A.L.R. absented himself States, Cir., Latham fendant had without leave United v. military 425; Frisby from his in a time United duties of war. F. v. implanted thus App.D.C. 513, Vaughan Magee, 3 The virus minds v. 630, 631, 632; easily Stewart In F. extracted.”35 James Newby, Cir., Berger States, supra, & Co. v. the Court 34 Berger States, supra. stop counsel, does jury, does caution the impression In has been made Latham counsel, although Court said: “Ev remarks honestly ignore ery try one must realize that ex im- although where, ceptional pression, eases still into and forms enters it. “especially apposite,” extravagant citing as concluded now to reverse the conviction People Wells, P. on” sup account, 100 Cal. it is fantastic “for pose case the court substantially 1080.36 Wells determined *24 Ah People outcome,” quoted approval with from mere “to-day, v. adding Am.St.Rep. Len, possibilities they P. 27 did 92 Cal. do us not interest forerunners, reversed our tangible where a conviction was we more demand grave improprieties by government counsel evidence damage has done.”39 decision, although Supreme trial Court “the court warned reversed specially subject.” (as previously noted) because it said the on the case Berger was “weak.” v. judge’s cautionary Indeed, the instruction 78, 85-89, 55 S.Ct. L. good: may harm em- do than It more Thereafter, cases, Ed. 1314. in four this phasize jury’s of the cen- awareness court, Supreme citing while de Court’s story, sured remark37 —as Mark case, Berger’s convictions, cision in affirmed Twain, boy cor- to stand in the told notwithstanding what it conceded to be elephant. ner and not think of a white grave misconduct counsel. respect improper 6. with to Particularly Dubrin, 1937, See United States v. 2 Cir., 93 counsel, my colleagues remarks of 499, 506; in crim- Lotsch, F.2d United States v. inal not follow the usual rule. cases do Cir;, 35, 37; F.2d United States v. They argue that, is effect, the matter Weiss, 1939, Cir., ;40 103 F.2d inherently impossible guessy, it be is ever to Buckner, v. States 1940, Cir., improper sure that remarks of counsel in- 921, 928, words, In other since verdict; reason, this fluenced the for that case, time in Berger’s it was reversed not, cases, court does criminal reverse every court, this instance where a United in this such an rule court misbehaved, error. The Attorney seriously States has appears, think, following: from I Be- that the found the defend ginning prior to and the instant “strong” ant was Berger that the doc question case, has arisen five inapplicable. might trine It thought times be this Berger, was, instances, circuit.38 In United each States v. there these 1934, Cir., 281, this fact, “overwhelming” 73 F.2d guilt. evidence of Attorney said that the United States explanation But believe there I is different seriously misbehaved but that “it would least those My some col- decisions: part of the verdict. In such cases the assume beforehand that a defendant is guilty, expect court should set and trial aside verdict to then es- language twisted, on motion trial. The for a new tablished rules of and evidence Fowler, Henniker, distorted, all the Justice in Tucker fair features trial [317], 325, pertinent,' 41 N.H. and in order to secure is a conviction. If great pros- applies fairly convicted, force to criminal fendant cannot be n necessary all; is should not ecutions: ‘Yet effect convicted and to bring provide ways the statement hold counsel otherwise would be to upon the verdict with more and for the bear force, or less means inno- conviction circumstances; according cent.” slightest degree they Accardo, influenced State 129 La. violated, finding, So. law purity impartiality put tar- 38 I to one side United States v. * * * Mortimer, 266, 268, weakened. un- nished utterly believe will where this court reasonable found the remarks of They objectionable. disregard- may struggle them. counsel not disregard They may think them. After this court was reversed in . so, case, Berger’s repeated and still be led involuntar- have done ily same no- shape Liss, Cir., their verdict under tion in United States v. * * * language quoted To influence. an extent not de- I yet dangerous finable, viz., extent, above, to a dis- a “modern unavoidably operate position to [these remarks] assume an error has ** must more less influ- evidence been harmless ” * * grounds, the minds of ence Reversed on 308 U. the Court “It There said: too S. 29a prosecuting much the habit officers
6K7
leagues simply do not accept the usual defi- take
charge,”
care of the matter
nition of a “strong” case.41
“apparently completely
this course was
acceptable
As
think
defendants.”
will
appears
from United States
colloquy
note,42
seen
Mitchell,
quoted in
discussed
above.
like man-
the trial
ner,
promise,
no such
in United
made
Buckner,
defendants did
not therefore indicate
this court refused to reverse
True,
such a
acceptable.
for counsel’s
would be
shocking improprieties
course
having
forcefully objected
promptly
(page
“proof
held
928) the
strong
*25
counsel,
argument
the “men
convincing”, although
overseas”
it said (page 926) as
lawyers
go
to
defendants’
some of
did
further
not
defendants that unlawful in-
ask
object
judge’s
tent
for a mistrial
“could
to
clearly have been inferred”—
charge
respect
given.
at all
that
after
no other reasonable inference
But
could
it is
failure to do
drawn;
revelatory
have been
(page
said
930)
so has
treated
my colleagues
as to
as
one
been
defendants, that “the
right
assign
waiver of defendants’
error
amply justified
concluding
in so
* * *
For,
now.
if
defendants
even
knew
of and assisted
[he]
the conspiracy”
as mentioned
much
the matter
the trial
at all that no other
—not
court, my
possible.
colleagues
reasonable
would not
hesitate
conclusion was
See
appeal,
note it
er-
regarded
how different
these
if
facts
those
grave enough
ror
Socony-Vacuum;
compare
ground
of re-
as
the rea-
States, Cir.,
versal.43 In Pierce
soning
this court
United
6
in the Buckner
v.
949,
rejected
with that
F.2d
953, 954,
in Volkmor
86
court
6
States,
v. United
Cir.,
improper
13
contention
594,
conduct of
595,
F.2d
where
“that
the circuit
court
prosecuting attorneys
reversed because
was waived
gov-
of remarks of
ernment
(which,
counsel
under the
failure
defendants
admoni-
move for a
tion
court,
Judge
mistrial.”
al-
said:
withdrew)
Simons
“Above and
though
beyond
procedural
circuit court
all
held the evidence
technical
rules, de-
signed
preserve
verdict, saying,
sufficient to sustain
rights
litigants,
“From
facts,
these
maintenance of
explanation
[public’s]
the nation’s
offered,
impartial
defendant
fair
courts as
where
might
forums
might
not have
prejudice
inferred a
rules,
neither bias nor
appeals
fraudulent
intent.”
Patently, in
passion
case,
place,
no
though
Buckner’s
as in
gov-
United
find
* * *
Mitchell, supra,
States
my
v.
colleagues’ af- ernment
litigant.
itself
firmance
on their
rested
own
belief
paramount
Where such
considerations are
fendants’ guilt, despite
conflicting
the.
testi-
involved, procedural
pre-
will not
niceties
mony.
so,
And
shown,
already
as I have
clude
court from
error.”
correcting
See
in the instant case.
New York
Johnson,
C.
Co. v.
R.
279 U.S.
My colleagues
state,
mistakenly
310, 318,
300,
49 S.Ct.
Ed. Brasfield v. United Haug, 900, 902; Surely, reasoning the other correct runs
2 Cir.,
way:
intimida-
911; and our Rule 10.
As the
of witness
evidence
accomplices' testimony
my
That
here
colleagues
hold
tion
refuse so to
use
fairly
is a
hold that
recognition
government
obvious
disclose a
sign
case,
improper
government’s
counsel
remarks of
“weakness”
compel
not sufficient
reversal when
that the case
assumed
my
guilty.
colleagues
“strong”
believe a defendant
the verdict
and that
misconduct
defendants
from the
resulted
noted,
Notwithstanding,
previously
that,
(i. e.,
not such
the evidence is
important
government’s
two of the
wit-
misconduct,
reasonable
absent
44a
accomplices
nesses were self-confessed
indubitably
defendant
have found
that there
was uncontradicted
guilty.)
government,
witness intimidation
colleagues argue
then,
case here is
my
plain,
I think it
"strong”.
spelled out,
“harmless
argument,
unique
conception
runs
Their
their-
*26
“strong
of a
(1)
against
the error”
interpretation
As
verdict
and their
thus:
the
the
case”,
follow
(according
my colleagues
it
do not
defendants,
be assumed
must
but,
although
case,
remaining
the testi-
reni-
my
that,
colleagues)
Berger’s
rule in
as
disbelieved
mony
conflict,
jury
tent,
lip
the
mere
service:
render
was in
it
Just
erroneously ad-
they
their
(including
witnesses
refuse to reverse
the defendants’
when, despite conflicting
the
evidence
intimidation), believed
mitted
testimony about
they
a
government’s witnesses,
accordingly,
testimony,
guilty,45
believe defendant
and,
im-
they
the
likewise as
counsel’s
the
do
drew
from
inferences
defects
suit.
proper
remarks in
products
showed
a criminal
to the effect
defendants;
(2)
part
the
fraud
the
on
colleagues have
enough,
Strangely
my
imply)
(so
colleagues
my
seem to
therefore
position as to miscon-
taken a different
the defendants’
similarly
must
disbelieve
we
litigation.
of counsel
civil
duct
government’s,
witnesses,
believe the
Walter, Cir.,
Brown
this
inferences;
(3) from
the same
lawyer
plain-
draw
the
for the successful
the
reason)
colleagues
(my
tiff,
case,
it follows
in-
an automobile collision
consequently (say
“strong”;
(4)
jected
case
fact
record
into
that the
conclude
we must
colleagues),
an
my
nominal defendant was
in-
insured
improper
“weak,”
re-
case,
being
company. Although
the trial
surance
in-
jury
did not
counsel
not to heed that fact
cautioned the
government
marks
reversed,
Plainly,
argument
an
citing
including
such
jury.
fluence
cases—
much;
wholly destroys
Newby,
Co. v.
proves
Stewart &
too
James
and Brooke v. Cro-
cases: 266
Berger’s case and similar
ruling in
son,
App.D.C.
665 Exceptions because II. to its by refused to counsel made this Court see the defense Kiefer, they F. B. I. had been “Harmless Error” told Rule. agent, not to do say, my I must colleagues, fairness to so.70 to their testimony given, this I have said After Kiefei elsewhere,71 testified, error, they working make who had was recalled of harmless previously rule exceptions: important but was not these government, (a) stand evi when it, questions asked any concerning (b) and in has been when the dence excluded;72 way charge judge given contradicted it. trial has an erroneous law; (c) 73 substantive sometimes Arone, gov- employee Johanna judge extravagant has been witness, ernment testified cross-examin- on ly unfair; (d) when 74 has been defendant ation, questioned by rep- she been had deprived right of a basic (e. constitutional I., resentatives of the B. and that fear g., represented ; by counsel) (e) oc 75 might of harm that her influenced come to casionally, when the sentence her testify defend- some excessive.76 types But for other error— substantial ants. such, g., e. as erroneous admission of evi Two of the chief witnesses dence or such as that here involved— Pitio, ac- Bianchi self-confessed refuse to reverse if think defendant complices alleged conspiracy. Pitio guilty, although testimony is conf had testimony a criminal record. In his lict.76a admitted that he prospective had told a wit- ness that “if he knew good Judge’s what III. A Doubts about the Wisdom him, get he would out of this lawsuit and Jury System Incompat- are not testify for the defense.” Alice La- Obligation ible with His to Ensure Brutto testified that Pitio told her not had Fair Jury Trials. testify: testimony her was not contra- suggested (like 77 that a dicted. me) who shares doubts about the wis comprehend why my colleagues I fail to jury system 77a dom of inconsistent testimony, described, refer to the urges above as if he be vigilant courts “trivial stuff” complete “deserved preserving jury’s function. doI
ignoring which government gave it.” understand that criticism. It is sworn 2d 337; 142 F.2d witch, important, come to the examination, 151 F.2d cross-examination.” Theresa Molinari whether first answered that she had that her answers were not be characterized as Corporation ber.” subject timony er 70 My colleagues say being my colleagues United States v. United States United Staes As reappears she cautioned that Cir., 503; this lack she her defense “consistently Martel, replied, cf. United States States v. ever been indicate. When asked v. throughout 923. Commercial Haug, “emphatic Andolschek, Rubenstein, lawyer’s “under that DiRitis’ tes Hoffman, “I memory the matter was record don’t as consistent not, but, cannot Ausmeier, requested denied” 156 A.L.R. the cross- office, v. denial.” searching Banking remem Krule- shows fairly Cir., Cir., aft she 924 note v. Liss, Cir., United States v. 17 F.2d Hoffman, are noted ceptions; not believe 902. But see comment in United States 149 F.2d v. Mitchell, supra; 2 2 States Cir., ed 77a 76 [75] 76a 74 Cir., Cir., Porter, Rubenstein, Mitchell, Fruit Amendola v. United But see United States v. United States v. 783. 152 F.2d See note Cases 2 v. 137 147 F.2d dissenting opinion 529, 530; Co., Cir., Trypuc, 923; in such F.2d 137 F.2d Cir., 2 this court are not 2 349; which “unclaimed” errors Cir., defendant but see United cf. 831. Pape, Cir., 540; 137 F.2d supra. cases, cf. Voltmann v. Unit cf. United dissenting opinion 137 147 Cir., 995; 151 F.2d at Marzano, United States v. 2 F.2d F.2d guilty. Cir., 136 F.2d United 416; in Arnstein Gutterman, court does 514. 1006 States 144 F.2d at 479. States true 2 States page Cir., Cir., ex- v. v. *33 many statutes duty enforce judges so,
they may And unwise. deem concerning the hench, private views our “as ir system are
desirability of the towards bimetal
relevant as our attitudes transmigration of souls.”78
lism or the long jury trials
Consequently, statutory
guaranteed by constitutional every
provisions, obligation of is the thinks of such
judge, no matter what
trials, fairly conducted to see invad jury’s province
and that is not ed. That does not mean skepticism freely express his about
system, may bring about con not seek to statutory changes
stitutional and which will
avoid or reduce what he its un considers operates.79
fortunate as it now results
MAULDIN OF v. COMMISSIONER REVENUE. INTERNAL 5453.
No. Appeals, Fourth
Circuit Circuit. Court
May 10, 1946.
TIMMERMAN, Judge, District dis- senting. Charlotte, C., Thigpen, of N.
Richard E. petitioner. Baum, Harry Sp. Atty. Asst. to the Gen. Gen., Acting Atty. Key, (Sewall Asst. Corporation, Brooklyn dissenting My opinion Bus ler in Keller v. Liss, Corporation, Brooklyn Bus pages 1001, 1002; page 2d Rubenstein, States v. discussion of this sub For further opinions dissenting my ject, in Kel see He does not de notes counsel, appears before the fendant’s 12a. 33b raiment, discharg 9a, (cid:127)jury supra. in official clothed See note