*4 MERRITT, Before LIVELY and Circuit Judges, TAYLOR,* Judge. District MERRITT, Judge. Circuit corpus, In this state murder case habeas Ohio, convicted a Cleveland jury two municipal judge peti- court other hiring tioners of to assassinate the another constitu- judge’s principal wife. The two under the questions appeal tional arise the amend- confrontation clause of sixth ment1 and self-incrimination clause of which made fifth amendment2 were through applicable to the states the four- Texas, in Pointer v. teenth amendment Taylor, Diggs provides person *The 2. Honorable Anna District The clause that “no ... shall Judge, compelled any United District for the States in be a wit- be criminal case to Michigan, sitting by desig- Eastern District of against ness himself.” nation. provides The 1. clause that “the accused shall enjoy ... to be confronted with the against witnesses him.” question fifth amendment we conclude that 13 L.Ed.2d S.Ct. comment, Hogan, where, here, Malloy prosecutor’s as 1489, 12 The first context, interpreta- or more open to two a crucial witness for question arises because tions, one of which would constitute only refused to take wrongfully

the state fail- improper comment on defendants’ stand, refus contempt held in but still stand, ure constitu- possible to take the prior, Her unsworn state testify. ed tional error can be and was cured clear incriminating ment the defend police On the more diffi- jury. instructions to grounds ants was then admitted on we con- question, cult confrontation clause procured unavailability. defendants state rule of evidence de- clude that The arises because the de question second pro- respecting scribed above defendant’s testify. argument not In final fendants did is consti- curement of witness Robbins,” argued that “Mr. defense counsel constitutionally applied at tutional and was state, the contract assassin named by Judge trial to the facts of the case them, it,” acquit must “you “didn’t do Nahra. through think did it some you even argument prosecutor one else.” To this although “de

immediately responded I. guilty, fendants contend are not trial, taking the The evidence adduced at ” said, one of them has ‘we are innocent.’ shows that strongest light, state’s case in its jury trial court advised the state hired two brothers Judge Robert Steele *5 clear, disregard the comment and issued clients, who were former Owen and Martin charge ad curative instructions in its final wife, Kilbane, to kill his person to find a vising the that it draw no infer jury should in Marlene He had fallen love with Steele. ences adverse to the defendants because three another woman whom he married did not take the stand. murder; his wife would months after (1) are: Is questions appeal The main not consent to a divorce. The Kilbane aby the confrontation clause violated state Robbins, a contract as- brothers hired Rick admitting prior, proba- rule of evidence sassin, who carried out the murder on Janu- witness, tive whose hearsay ary 1969. He shot her at home in bed procured by was the defend- while her children and asleep night at two ants, when the have been statement would police The imme- Steele were in house. admissible under a traditional ex- to diately suspected but were unable Steele ception had the witness taken the stand? later when years solve the case until seven comment, (2) taken in prosecutor’s Did the Braun, the witness who refused key Carol instructions, light of the curative constitute trial, Agent contacted FBI testify to at the improper comment on the defendants’ agent He and another interviewed Ressler. requiring failure to take the stand length signed her at and took a statement. defendants’ convictions be vacated? for Owen prostitute said she had been a She unreported opinion reviewing In an years escape for ten and wanted to Kilbane findings and conclusions of federal Steele, Kil- In 1968 she meet his control. magistrate, the District issued the lawyer. bane’s had heard several con- She two, that the corpus holding writs of habeas Martin Kil- versations between Owen and claimed state trial errors described above bane, carry their out concerning plans violate the fifth and sixth amendments. learned before the murder for She Steele. For stated essentially same reasons that Robbins was to commit murder Judge opinion state trial in his deny- Nahra crime, afterward Owen immediately and trial, ing for new see defendants’ motion her how the crime had been Kilbane told Kilbane, State v. Ohio St.2d carried out. Opinions N.E.2d 5 Ohio 3d interview, was arrest- After this Robbins we no constitutional error conclude that and, therefore, murder. charged occurred reverse. On the ed and with another to a child. Fearful that Braun conviction, testify given as to birth agreed he Upon witness, exchange in available as a part in the murder not be his Steele would protec- custody. immunity prosecution placed protective for state her in her, family. lawyer tion for his Kilbane obtained a Owen remained as his counsel also own trial evidence at The state’s All defense counsel Braun’s co-counsel. established. clearly motive was strong. The sought her protective custody contested Steele, Lombardo, David A friend of lawyer The trial court released her from release. lie, motive to testi- apparent a man with no custody. him three months be- fied that told Steele thinking that he was about fore the murder her sought perpetuate state The then his wife.3 finding to kill Robbins someone lawyer Braun’s testimony by deposition. hired the Kilbane testified that he was objected on and the other defense counsel acting for He testified brothers Steele. The court grounds privilege. of the marital of the crime and how concerning the details taken on this issue. deposition ordered her He paid. was contacted and testified he testimony In deposition, addition he meet until sometime did not Steele concerning her with Owen Kil- relationship only reference to after the murder. bane, previous she stated that her state- passed ever between them the murder that The defense ment to the FBI was false. when winked came on one occasion Steele testimony at sought prevent then her job.” simply at him and said “Good deposition grounds trial on the that she proof, privilege, In order established the marital constructing its state under the testify viewed the of Carol Braun was entitled to refuse to major amendment, as the link in the chain stretching previous fifth and that from Steele to Owen and Martin Kilbane to false. The court overruled statement was credibility Robbins. Robbins’ was weak. objections testify. ordered her to these Along with the motive and the testimony of Owen Kilbane’s counsel advised the court lawyer friend, provide Steele’s Braun would testify, that she would refuse to even prosecutor thought corroboration the contempt. held in After severe lectures *6 was jury needed for the to believe Robbins’ interest, from the bench on conflict of testimony. lawyer Owen’s withdrew as co-counsel for appealed Braun. Braun’s counsel

The record reveals a strenuous tactical ruling privilege. court’s on the marital battle prosecution between the and defense counsel over of Carol Braun. trial, At the Braun was called over the tactics, Through a combination of the de- objection Her law- of all defense counsel. sought fense prevent testimony. her Kilbane— yer employed by for her Owen — By trial, testify was stated that she would and ac- time of Carol Braun again living with knowledged Owen Kilbane had that he counseled her to had City said, you 3. Euclid Prosecutor David Lombardo testi- A. He “Do think that Joe” —mean- during ing my partner fied that sometime the last week of he find law could —“that September, October, 1968, my or somebody the first week of kill wife for me?” Judge he visited him you say? Steele thank for his O.K. And what did Q. appointment assistance in crazy, many Lombardo’s as As- I told him he in A. was so sistant Law Director of Euclid: words. What was the substance of that conver- Q. you say sation? What did to him and what say anything Did he else at time? Q. say you? did he along A. There was more conversation Well, basically A. ... I thanked him for I think I line. made some kind of remark assisting anything me and I told him I can trying funny, to be because I meant to treat it future, to, happy ever do for him in the I’d be said, lightly, leaving, I was and as he “Don’t going because the consensus was that he was laugh. morning you may pick up Some Mayor, my to run for and I offered him as- paper tragic and see she has had a accident sistance. you’ll happened.” know what happened And what then? Q. (Record 1146-48.) at (Record 3539-40) at re- any party.” She in view of the fact follow this course ap- was on privilege question the marital the courtroom voluntari- fused to come into and be step Braun refused to forward peal. and Martin counsel for Steele ly. Defense order, held in the court’s was sworn immediately requested that she be Kilbane in to six months contempt and sentenced their witness for cross-exam- subpoenaed as that she moved jail. prosecution After the subpoenas, she still ination. Notified ... so jury “forcibly brought be before Agent the courtroom. refused to enter and be cross-ex- presence, can see her as to the content of her Ressler testified sworn,” amined, all whether or not she is at prior statement. He was cross-examined she not be defense moved that counsel concerning counsel her length by defense jury. forced to take the stand before retraction of the statement and later that, based on his judge The trial stated which the statement circumstances under witness, the evidence observation of the was taken. case, the course of in the introduced in a two to Appeals The Ohio Court of it was his leading impasse, events to the one, upheld decision the defend- unreported was under the con- opinion that the witness ants’ convictions. The court ruled procured who had trol of the defendants was admissible un- prior Braun’s statement Reynolds testify. Relying her refusal to under the der rules of evidence and Ohio States, L.Ed. 244 v. United because, although per- confrontation clause (1878) (a procures defendant who the una- any traditional haps not admissible under vailability of a witness is not entitled to rule, hearsay it falls within exception right exercise his of confrontation with re- found in Federal Rules exception broad witness),4 spect to the the court ruled that 804(b)(5) permitting of Evidence brought “Miss will be to the court Braun by any “not covered specifically statement given before opportunity testify” having but exceptions ... refuses, is seated. “If she jury [traditional] guarantees circumstantial equivalent may written be introduced. Thereafter, The court also stated may she be cross-examined trustworthiness.”5 judge explained ruling condition to assert that his 4. The trial his as fol- constitutional lows: had been violated.” Opinion 3d at 391-92. any 400 N.E.2d Ohio The defense does not have to call wit- nesses; but cannot interfere with the portion pertinent 5. The of Rule 804 reads as prosecution witnesses called and then follows: complain brought of the situation about proposition their interference. This HEARSAY EXCEPTIONS: DECLARANT Reynolds forcefully v. United set forth in UNAVAILABLE States, 25 L.Ed. 244 unavailability. (a) “Unavail- Definition wherein it was held: ability witness” includes situations as a *7 “Although the Constitution declares that in which the declarant— prosecutions all criminal the accused shall enjoy right the to be confronted with the testify (2) refusing persists in concern- against him, yet witnesses were ab- ing subject matter of his statement de- the by procurement, enough his sent or when has so; spite an order of the court to do .... proved upon been to cast him the burden of he, showing, having opportunity and full a witness if A declarant is not unavailable as therefor, show, fails to that he has not been procurement is due to his ... refusal ... the concealing keep- in instrumental them or in wrongdoing proponent of the of his state- or ing away, he is in no them condition to assert purpose preventing the of the wit- ment for that his constitutional has been violated attending testifying. or ness from by allowing competent evidence of the testi- (b) Hearsay exceptions. following The are mony they gave previous which aon trial hearsay not the rule if the de- excluded upon between the United States and him the clarant is unavailable as a witness: is same issue. Such evidence admissible.” Reynolds In the defendant refused to tell witness, (5) exceptions. A statement the United States Marshal where a Other him, specifically by any foregoing who could be lived with found for ser- covered subpoena, exceptions having equivalent circumstan- vice of a and on this basis the but trustworthiness, guarantees if the Court held that the defendant was in “no tial of 1200 2538, (1980) 597 add- (emphasis in 65 L.Ed.2d correct judge probably trial

that the unavailable, how- ed). the witness is When grounds on the statement admitting ever, impossible; is adversary confrontation unavailability of caused the the defendants hear- willing are to relax the courts have be held to the witness and should insure a say rules somewhat in order to the witness to confront rights waived their facts, de- on the relevant decision based formal, ruling reserved a definitive but witness’s pending on the reason for the Supreme Court The Ohio question. this unavailability probative and the value case. declined to review the trustwor- guarantees the circumstantial of held Ohio The District Court surrounding proffered state- thiness law does not erred because Ohio courts had ment. recog- and would not recognize 804 section ma in both the Supreme The Court the Kilbane brothers nize the statements of the Rob dissenting opinions in jority and ex- co-conspirator to Braun as within “general outlined a recently erts case has hearsay rule. It further held ception to the un unavailability problem approach” to the indicia the statement lacks sufficient In Roberts the confrontation clause. der reliability of to meet the confrontation she witness was “unavailable” because Roberts, in Ohio v. standard established state, to a different had moved 65 L.Ed.2d U.S. prior sought to introduce prosecution trial court did not and that the state preliminary hearing. a testimony at justify it facts to its have before sufficient Brennan, of Justices Mar dissenting view the wit- finding that the defendants caused for the reason emphasized shall and Stevens to be ness unavailable. They found unavailability. the witness’s prose inadmissible because the the evidence II. fault; not used suffi cution was at it had The word “witness” in the con securing presence in diligence cient inter normally frontation clause has been opinion Blackmun’s the witness. Justice preted law sense to include in its common reason for analyzes also for the Court words are present both a witness whose unavailability. He found no the witness’s heard in witness whose court and absent party neither is prosecutorial fault. Where But there is a words are recited as true.6 of the wit responsible for major distinction between the two kinds admissible, ness, statement is hearsay English judges witnesses. and American held, ‘indicia of adequate “if it bears Court ” good traditionally unwilling for are reason the evi example, “where reliability,’ in rule hearsay criminal cases to relax the rooted firmly dence falls within under either the law or the con common at at 100 S.Ct. exception.” U.S. availa frontation clause when a witness is rule, this both Roberts 2539. Under ble to has a testify. adversary system Our that when this indicate cases from strong “preference respecting for face to face accusa at fault the una- party neither is witness, tion” an uncross-exam- vailability and cross-examination and insists of a it the witness extra-judicial when the witness is available. Ohio ined Roberts, 56, 65, lacking independent officer other police 100 S.Ct. prosecution, (A) nesses called see Justice court determines the statement fact; (B) concurring opinions offered as evidence of a material Harlan’s California *8 149, 172-189, 1930, probative point Green, statement is more on the 90 399 U.S. S.Ct. any 1942-1951, (1970) which it is offered than other evidence and Dutton v. 26 L.Ed.2d 489 proponent procure through 210, 223, Evans, 74, 96, which the can 27 91 S.Ct. 400 U.S. efforts; (C) pur- general Westen, reasonable the and (1970) “The L.Ed.2d 213 discussed poses jus- of these of Confrontation,” rules and the interests 77 Mich.L.Rev. 1185 Future of by tice will be served best admission of Roberts, 56, (1979). v. 448 U.S. See also Ohio into evidence. 2539-2540, 2531, 66-68, n.9 at n.9 at 100 S.Ct. (1980). 65 L.Ed.2d 597 view, retracted, contrary 6. For a later that the only to confront the wit- defendant is entitled

1201 have reliability justify consistently hearsay indicia of does not “an relaxed the rule full exception requirement wrongfully of and when the defendant causes the v. Mayes effective unavailability. theory cross-examination.” witness’s The of the Sowders, cert. 850, (6th Cir.), 621 F.2d 856 cases to that appears be disclosure of denied, 324, 922, 449 101 66 U.S. public relevant information at a trial is a (1980). interest, paramount any significant in- interest, by terference with that other than however, case, In the instant the state exercising legal right object a to at the trial court found that the defendants bear a itself, wrongful Wrongful is a act. conduct major for the responsibility unavailability obviously includes the use of force and of the If findings witness. those are ac threats, but it has also been held to include cepted, distinguishes that fact the instant persuasion defendant, and control a Mayes.7 the facts in Roberts case from wrongful information, nondisclosure of addressing question Before of the state a defendant’s direction to a witness to exer- findings court’s of fact procurement, on we cise the amendment privilege.9 fifth must consider how far the standard of relia bility and trustworthiness should be relaxed The evidence admitted as a result of when the defendants are at in causing fault wrongful such conduct includes uncross-ex witness, unavailability as well as statements such grand jury as testi amined the standard of fault to be followed. mony statements, and prior extra-judicial

Employing concept either a of im as well as cross-examined statements such plicit waiver8 of confrontation or the prin depositions as testimony. and former ciple that a person profit should not by his accompa relevant cases are in the briefed own wrong, English and American courts nying footnote.10 question “procurement” 7. Justice Blackmun’s caveat in Roberts is rele- that of is one of “competing stating vant here. He finding said that interests fact and that “the of the court may dispensing is, least, ... warrant with confrontation below at to have the effect of a verdict relaxing jury fact, at trial” and question further rule of a a of and should “ depending in some cases public policy on ‘considerations of not be disturbed unless the error manifest.” ” case, Morley’s and the necessities of the case.’ Id. at In 159. Lord 6 State Trials 64, quoting 448 U.S. at (1666), deposition youth 100 S.Ct. at 2538 Mat- 770 of a who Aed States, 237, 243, tox v. impending United 156 U.S. 15 S.Ct. because of trial was not admitted 337, 339, Aight 39 L.Ed. 409 because no reason for the was shown. judge’s The House of Lords held that the trial 8. concept It .should be noted that the “waiver” finding enough the evidence was not applicable, strictly speaking, procure- is not “procurement” finding show fact ment, confusing. and its use is somewhat It is binding appeal. case, In Harrison’s 12 State legal say person Action to that a who inter- (1692), attempted Trials 851 the defendant thereby knowingly, feres with a witness intelli- “spirit away” dep bribe or two witnesses. The gently deliberately relinquishes his osition of both before a coroner was admitted hearsay. simply exclude wrongful He does a though the account of the bribe was itself hear legal consequences act that may has he or say disappearance and the of the other witness may not foresee. The connection between the directly was not connected to the defendant. legal consequence defendant’s conduct and its apparently The Court of Common Pleas drew under the supplied by confrontation clause is disappear an inference from the bribe that the by purposeful the law and not decision Regina ance was caused the defendant. In forego defendant right. a known constitutional Scaife, Rev.Rep. (Q.B.1851), 117 1271 Thevis, But see United States v. 665 upheld judge’s finding court the trial (5th 1982) holding F.2d procure- 616 Cir. keep evidence showed “contrivance to the wit ment of witness is a “waiver way” deposition ness out and a question.” otherwise admissible was allowed. In Tolbert Jago, (6th 1979), 607 F.2d 753 Cir. cert. 10, 9. See note infra. denied, 682, 444 U.S. 100 S.Ct. 62 L.Ed.2d Reynolds States, (1980), Thevis, 10. In v. United 655 United States v. 665 F.2d (1878), (5th 1982), Balano, L.Ed. 244 the defendant refused to re- Cir. United States v. server, process (10th denied, 1979), veal the witness’s location to a 618 F.2d 624 Cir. cert. Supreme approved and the admission of 101 S.Ct. L.Ed.2d testimony charge, Carlson, former trial on a different and United States v. 547 F.2d 1346 admissible, (8th denied, finding 1976), not otherwise Cir. cert. sub nom Hofstad *9 1202 the “is not bound judge that the trial no case in has disclosed research Our making such determi- evidence” in wrongful rules of finding a of court which a Nevertheless, criminal in federal nations. prior to admit state- declined has conduct cases, have im- in similar situations had the courts have come in would

ments that v. United States posed minimum rules. See has our stand. Neither taken the witness 1978) (pre- Enright, 579 F.2d 980 (6th Cir. finding that a de- a case disclosed research on find- appropriate ponderance una- standard causes a witness’s wrongfully fendant hearsay co-conspirator the ings triggering at trial to exercising the vailability Thevis, 665 F.2d v. United States exception) or testimo- capacity object presence, to the convincing (5th 1982) (clear and 616 Cir. the witness. ny of of procurement to find required standard essen these cases we derive From in federal criminal unavailability witness by the as the one stated tially the same rule case). given judge: prior A statement state trial- Reynolds, the Court Supreme In by the made unavailable by a witness in secur public that the interest suggested admissible party of a is wrongful conduct strong that sufficiently ing testimony would is if the statement against party the [by govern the “enough had been shown had the witness testi have been admissible said, proof of on him rule, is to cast burden Judge as Nahra fied. The ment] showing that he had not the in of public policy protecting based on a defendant] [the concealing keeping or by deter been instrumental tegrity adversary process of the Judge 98 160. away.” incen the witness U.S. ring litigants acting strong this standard. expressly Nahra followed of an adverse prevent tives mean that the this standard to princi interpret on a We witness. The rule is also based has the statement equitable proponent similar to the ple reciprocity of showing procure of prefers persuasion The law burden of doctrine of “clean hands.” once evidence a but hearsay, preference by preponderance, live ment testimony over good reason that demonstrates designed protect everyone, particularly produced interfered with the defendant has prefer the defendant. A defendant cannot to believe it, witness, may be from as adverse inferences preference profit the law’s Reynolds,11 the defense to Supreme while drawn from the failure of Court said in contrary. A repudiating preference by creating offer credible evidence proponent requires prevents condition that it. standard probable than show that it is more arises is question next procured defendant whether the confrontation clause should be sufficient constitutionally of the witness is interpreted particular to allocate a burden and confrontation process under the due persuasion of question procure on the of clauses. and, so, ment it how is to be measured? developed has such Traditionally the common law has left find Our Court judges in for trial ings preliminary preponderance of fact to an standard necessary findings of fact on the admissibility ruling judge making preliminary to the trial with statements extra-judicial out close of supervision. admissibility The Federal Rule of United view; 104(a) co-conspirator exception. Evidence it reflects that states under the States, 2629, (1975), United 45 L.Ed.2d 670 the defend- 53 S.Ct. evidence, pressed persuaded including the witness to as- rea ant therefrom, privilege, and this sonable inferences sert fifth amendment indicated that his defendant, defendant, reading portions acting approved or one for the prior of state had There are a number either-threatened or murdered a witness in statement. e.g., effect. See State prevent testimony, order his and the courts cases to the same Hansen, (Minn.1981), approved and the N.W.2d 96 the admission of either the witness’s grand jury testimony prior or a cases discussed therein. Mayes, police. In United States v. 512 F.2d denied, (6th Cir.), cert. supra. 11. See note *10 1203 (6th There is also evidence that Kil- Enright, v. 579 F.2d 980 Cir. Kilbane. States 1978). admissibility question Since the that the law- lawyer bane obtained co-conspirator of such statements under the yer testify her to refuse to and to advised exception equivalent ruling is to a on their place in The fact that contempt. herself under confrontation admissibility tactics after defense counsel revised their clause, v. generally see United States Nix- ruling subpoenas the court’s and issued for on, 683, 700-01, 3090, 418 94 U.S. S.Ct. the witness does not alter the fact that all 3103-3104, (1974); 41 L.Ed.2d 1039 Dutton a preponderated of the facts in favor of Evans, 74, 210, 27 v. 400 91 U.S. S.Ct. plan concerted to induce the witness not to (1970), reason logical L.Ed.2d 213 we see no testify. say Thus we cannot that the state impose higher a on the states in standard court committed constitutional error in- making preliminary findings procure- it ferring from the facts before that ment in rulings connection with on the ad- in acting wrongfully defendants concert in- extra-judicial missibility of similar state- Indeed, testify. duced Braun not to as the ments. said, judge state one have would to be Keeping statutory in mind the re contrary “blind” to to reach a con- reality quirement, 2254(d) (1976), 28 that U.S.C. § clusion.

this presumption Court accord “the of cor

rectness” to It clear that the findings incriminating of a state court is review, Mata, corpus habeas see v. Sumner evidence contained in the statement would 764, 101 66 L.Ed.2d 722 S.Ct. have been admissible under the confronta proceed we to apply principles these tion clause had Braun taken the stand. The findings to the of the state court. In mak prima state had made out a facie case of ing findings preliminary of fact ruling its conspiracy. incriminating statements statement, on the admissibility prior of the of the Kilbane brothers to Braun and to consider, the state court was entitled to presence during each other in her came consider, stated that it did all the facts of pendency conspiracy of the and are within the case already in evidence and the course co-conspirator exception of conduct of the in seeking defendants rule. If Braun had taken the stand and prevent the witness’s testimony before and statement, denied the facts contained in the evidence, during the trial. From this the statement would have been admissible reasonably court could find the state prior under confrontation clause as a had prima made out a facie case at the time inconsistent statement. California v. See the witness’s statement was offered that Green, conspired defendants together to com (1970) (prior inconsistent state mit the crime charged escape and to detec as evidence ment admissible substantive tion, that a personal had close relation Dick, testifies); where witness State ship with each repeated other and that their (1970) (prior Ohio St.2d 271 N.E.2d 797 objections indicated a strong pre desire to inconsistent admissible vent testifying. witness from It was impeachment but not as substantive evi infer, not unreasonable for the court to dence). Enright, also United See States light previous of the defendants’ concerted supra, admissibility for a of the discussion activities to conceal the crime and their co-conspirator of a statement prevent testimony, efforts to the witness’s the course in furtherance party during jointly planned strategy pre conspiracy. vent her testimony escape in order to con Although questionable it is whether viction they agreed and that that Owen Kilbane Braun’s statement admissible under the would use his influence and control over her to Al confrontation clause in the absence of a testify. induce her not to though finding wrongfully there is no in the ease of the defendants evidence note, specific threats, unavailability, caused the we support there is evidence witness’s ing courts, the inference that Braun was afraid of as did the Ohio the statement *11 for Yelsky Mr. When Steele] to those reliability [counsel in addition of indicia

has to going I’m argument, admissibility prior of incon- his final closed for the required state- voluntary It is a what he said. quote sistent statements. Braun, after sever- signed initiated ment Defendants not like these might “You It agents. FBI questioning of al hours characteristics, their of some of because given it was Braun the time that at is true contest. popularity a this is not but per- Owen Kilbane toward was hostile them, whether me or or you like Whether unstable condition. mentally haps a Robbins issue. Mr. isn’t the you I like tradi- however, very close to a statement, is them, even acquit it. You must didn’t do rule for exception to tional through someone did it you they think state- interest.” Such against “statements else.” a criminal de- against permitted ments are from Mr. It came that a statement? Isn’t that finding a regard to fendant without do it. Robbins didn’t lips. “Mr. Yelsky’s una- the witness’s produced the defendant think them, you even if acquit You must statement recounts Braun’s vailability. else.” through it someone did of a the concealment prostitution life of not they are contend The defendants Indeed, the witness invoked plot. murder said, “We them has one of guilty. Not aas against self-incrimination privilege 4313-14) at (Record are innocent.” testify. to The indicia her refusal basis for is the as- counsel, such statements reliability of for objection by defense Upon do not make sumption that individuals following instruction: judge gave trial to them- damaging are statements which remark of disregard the jury will “The are true. satisfied that selves unless of not plea has been a There counsel. Co., Engineering Hileman v. See Northwest in this by each defendant guilty entered 1965) of (6th F.2d and Fed.R. 346 668 Cir. charge jury, in his final case.” Then advisory committee 804(b)(4) Evid. and the in- below,12 judge properly the trial quoted conclude, We as did notes thereto. a defendant’s jury respecting structed court, trust- guarantees state The District testify. not right Braun state- surrounding the worthiness com- improper the prosecutor’s held that reliability terms of ment are similar in take the failure to ment on defendant’s hearsay exception for state- the traditional ground independent stand constituted against ments interest. under the doctrine granting the writ agree 609, we with the state California, For these reasons 85 S.Ct. 380 U.S. v. Griffin of the Braun judge trial that admission 1229, 106 14 L.Ed.2d confrontation statement did not violate the wrote for recently Judge As Jones clause. should Court, prosecutorial this defend on the interpreted as a comment be III. when “the the stand failure to take ant’s counsel for During closing argument, to com was manifest intent prosecutor’s jury argument made the Steele testify” or failure to ment on the accused’s the defend- jury even if the believed that and neces naturally jury when “the would wife, the conspired ants had to kill Steele’s the failure on take it to be a comment sarily jury must because the state’s case acquit testify.” United States accused to depended establishing on Robbins rather 1188, (6th Cir. Robinson, 1197 651 F.2d murderer, than “someone elsé” as the found “if will not be 1981). Manifest intent proved the defendants had Robbins did his remark explanation for some other prosecution’s not commit the murder. The Rose, In Butler plausible.” Id. response equally counsel and quote defense Court, June-, 1982), 80-1415, this comment, (No. then to as follows: case, exercises such from the fact that Defendant 12. “A defendant in a criminal ladies and 4374) gentlemen, right.” (Record at has a Constitutional testify. by you be drawn No inference is to

1205 In Tehan v. United States ex banc, sitting en considered whether prose- 459, Shott, 406, 15 rel. 86 S.Ct. that the cutor’s statement defense could not (1966), v. New L.Ed.2d 453 and Johnson attack the legitimately state’s key witness Jersey, 384 U.S. S.Ct. one putting witness on without to rebut her Supreme Court de- reversible testimony was error. Judge v. Califor- apply clined to the rule of Griffin for the Lively, writing majority, analyzed nia, 14 L.Ed.2d relevant cases concluded that the re- that the (1965) retroactively grounds impermissible was not mark under Lockett *12 improper rule comment on the de- against Ohio, 98 v. S.Ct. 57 is pri- fendant’s failure to take the stand 973 but L.Ed.2d if it were integrity the marily designed preserve the error erroneous was cured clear 414-15, judicial the 382 at 86 system. U.S. jury. instructions prosecu- 464. do not think the S.Ct. at We interpretation prosecu sufficiently of the tor’s comment in context was One the of the egregious integrity tor’s comment here is that he intended to to affect ad- the versary process jury’s comment on the failure of the defendants or affect delibera- immediately tions.15 The comment fol- interpretation to take the stand. The other quotation closing lowed a direct of the ar- prosecutor saying is that the was that de counsel, gument of defense and under one fense counsel does not claim the defendants interpretation directly responsive is to those they are innocent rather that cannot be but where, comments. conclude that We they convicted because committed the crime context, a is reason- prosecutor’s comment way in a different than state asserts. the subject to an other than ably interpretation prosecutor’s was that he it in put error as a comment failure to on defendant’s defendants, terms of what the rather than stand, take the curative instructions clear counsel, say.13 defense did not ordinarily will eliminate the error. Here In order for the com prosecutor’s jurors defense counsel in voir dire asked the ment in this case to have affected ver making any could avoid adverse jury, dict of the two must inferences be inferences the defendants if against first, jury made: understood the com under- jury should not take the stand. The ment as a reference to the defendant’s fail obligation the outset. At stood this stand; ure to take the secondly, jury jury given the end of the case the was a guilt Assuming inferred from this fact. clear “no adverse inference” instruction in inferences, these we must assume that re- charge. the final This instruction was jury disregarded the court’s instructions or peated along charge with the rest of the a that the comment prejudicial was so that no by request jury.16 second time Un- find, circumstances, instruction could cleanse its effect from the as did the der these we courts, jury’s mind.14 appellate state trial and prosecutorial clearly A13. comment both the and which re- error its effect. To hold otherwise fers to the “silence” of general defense counsel rather from “the would be to deviate rule than the defendant’s silence is not error. Holl- injury remedies should be tailored to suf- States, (6th brook v. United 441 F.2d 373 fered from the constitutional violation 1971). Cir. unnecessarily infringe upon compet- should not Morrison, ing interests.” United States v. judge’s 14. This is case where a instruc- 361, 364, 665, 668, 66 L.Ed.2d S.Ct. tion has “solemnized” silence into defendant’s (1981). against evidence him. Cf. Griffin California. Constitutionally impose defective instructions jury presuming 16. We that a have no basis for improper framework for the evaluation of judge’s does not follow a instructions. Studies virtually all evidence and can never be harm- (cid:127) opposite. Traynor, Montana, indicate the See The Riddle less. See Sandstrom v. 442 U.S. 510 526-27, 73-74, (1970) citing at 2450 at of Harmless Error at H. 61 L.Ed.2d 39 (1979) Kalven, Zeisel, Jury and cases cited therein. Jr. & H. The American tailoring proper remedy, In 15. this Court must look to the constitutional dimension of and the the court below parties, prosecutor’s that the error are probabilities has courts, the fact that the writ state doubt. beyond reasonable harmless issued, inclined to dis- we are not already time petition at this appeal miss the IV. party No has raised Lundy. under Rose v. in the court be raised Petitioners issue, Lundy and we deemed the Rose two other low, appeal, have briefed in the court objection to have been waived These issues are that claims. federal entire case at this To dismiss the below. recording of tape of a redacted admission delay in unnecessary would cause an point (Rec with Robert Steele police interviews judi- waste resolving the issues and would 3102, 3112-14) admission of and the ord at cial resources. interviews telephone of two FBI summaries the District 43; Accordingly, judgment (Exhibits App. 42 and with Braun Carol the writ of habeas reversed and Court is 80-84) because process I at violate due Vol. hereby issued to Ohio authorities corpus as a refers to Owen Kilbane tape the Steele vacated and set aside. FBI summaries include ref “pimp” and the Braun to crimes commit erences Carol *13 TAYLOR, Judge, District ANNA DIGGS other than the murder ted Owen Kilbane dissenting. of wife. These issues have not' Steele’s plain been in state court. It is dissent, exhausted all of the I must and do so for opinion from the record and the of Ohio in the of opinion reasons so well stated were Appeals Court of that these issues White, Judge George W. as well as District presented only courts as state state Judge in of Jackson of the Ohio the dissent errors, evidentiary not as federal claims. concerned, Appeals. I am most Court of (See 11, 56-59, 117 App.Vol. II at for a however, prose- in this that the defendants presented statement of these claims as to which the deprived right cution were of the Appeals.) of Both the Ohio Court ma Amendment of the United States Sixth jority dissenting in the opinions Ohio when it guaranteed Constitution them stat- quote assignments of of Appeals ed: claims; regarding error in that court these prosecutions In all criminal the accused no federal or claim asserted decided.17 enjoy right shall ... to be confronted Therefore, to the extent the District against him. with the witnesses Court based its decision below and the is apply That was held to to states suance of a corpus writ of habeas on these Amendment in through the Fourteenth claims, two jur unexhausted it was without Texas, 400, 85 Pointer v. State of so, isdiction to do and its decision must be (1965). The con- 13 L.Ed.2d reversed. stitutional error which has occurred here harmless, guilt of state has not asserted that the was not as the evidence Indeed, petition overwhelming. entire habeas corpus should be dis was far presents hearsay missed because it mixture of itself state- trial court wrote claims, question exhausted and unexhausted see here in in his denial of ments - trial, -, Rose that' Lundy, requests for a new S.Ct. defendants’ any than probative In view of the this evidence was “more time and already proponents effort invested in the case other evidence which the [i.e. prostitution 17. The further and other crimes as “other acts” defendants frame these claims motive, evidentiary tending plan as state issues in their memoranda show scheme or to seeking Supreme review con- Ohio Court. murder under O.R.C. 2945.59 § commit example, sought For prejudicial Martin review of Kilbane of discretion. stituted a abuse proposition Support that: Juris- in Petitioner’s Memorandum Kilbane, Record, diction, Vol. 2 v. Martin State The trial court’s into evidence of admission Support in at 27. See also Memorandum testimony relating and exhibits to crimes that Kilbane, Record, Jurisdiction, v. Owen State appellant investigated this had been for and Vol. 3 at 36. alleged to a co-defendant’s involvement in Secondly, those procure through guaran- could reasonable “circumstantial State] ” efforts .... tees of trustworthiness” which federal utilize, hoc, may except courts ad a clear- It should be clearly understood ly reliable statement from the rule which has convicted these indi- 804(b)(5) under Federal Rule of Evidence hearsay, viduals was not mere but was dou- unrecognized were not in law at only Ohio is, hearsay. Agent ble That FBI Ressler trial, the time of but were and still are testified that Braun had once told Carol in utterly Every nonexistent this ease. fact (but denied) him later that she had heard in concerning circumstance evidence statements made each of these three making of the Braun cries declarations defendants, either before or after the Steele out for an opportunity cross-examine. murder, which tended to incriminate them The declarations were in the least re- The Braun were not variously. statements spect against any legally recognized inter- observations, concerning personal her nor declarant, though might est of the did involve or incriminate her in any reputation tarnish a in some circles. Braun way. Agent Ressler said that she had said acknowledged had a clear and motive to that she had overheard the two Kilbanes falsify just at the time. had left She Owen allegedly conspiring to murder Marlene Kilbane “once and for all” in and had Steele. Ressler also said that she had said Agent called Ressler to advise she was had, essentially, Owen Kilbane “con- prepared give against evidence Owen fessed” participation his in the murder con- “put because she wanted to him away”, spiracy subsequently, and had also with her an alleged five-year- accusation of told her of the roles of defendant Steele old nothing spontaneous crime. There was and State’s witness plot. Robbins sought about the statements. Finally, Agent Ressler said that Braun She Ressler’s had *14 help said to achieve revenge against that and Kilbane her es- Steele Owen had tranged police instructed her to tell the lover. She asked Ressler to show nothing, names, when her investigation pictures, give had her some and commenced. hints, and she to recall would be able Even if Carol Braun had testified at prose- Owen’s criminal acts for Ressler to trial, these defendants’ and if severance had cute. been actuality, denied as it was in the “con- fession” of Finally, Owen Kilbane to Braun would “trustworthiness” of those have violated the rights confrontation of accusations is completely undone their Kilbane, defendants Steele and Martin at Agent recantation before Ressler had States, least. Bruton v. passed See United them on to the Braun jury. Carol him, trial, 88 S.Ct. 20 L.Ed.2d 476 had told before that these state- Moreover, false, lied, I fail to see ments were why that all and that she had problem drunk, has disappeared, present in the been been on drugs, and been insane context. long when she made them. had since She Kilbane, gone they back to Owen and were But Carol Braun did testify not and there the parents baby. of a newborn has been no contention that she was a co- conspirator defendants, of making here, these majority like the trial Ohio statements during court, the pendency of and in has further found that all defendants Indeed, furtherance of a it can- conspiracy. waived such right to confrontation as is not be fairly argued any that of the defend- acknowledged by “procur- to be applicable, alleged ants’ statements to her even fell ing” the Braun. unavailability of Carol On within those parameters. Accordingly, that issue I first must note that defendants Agent testimony Ressler’s as to what Braun Martin Kilbane and Steele asked leave of said the defendants said to her was the subpoena the trial court to her for cross purest statement, of attenuated doubly hearsay, and a examination on Ressler’s and gross is, deprivation of their constitutional were denied that leave. There Trial right to confront their accusers. Judge acknowledged, proof” “no that de- testify, her again Braun refused that partici- Kilbane and Steele Martin fendants introduced. would be Braun’s re- to Ressler procure statements any effort

pated testified, her recantation surely three inasmuch as all If she had but testify, fusal to her statements prior interest and the stand of “united in defendants were clearly more waiver found have been effort”, Ressler would he attributed than it jurors three. Kilbane to all the minds upon etched against Owen was, to Ressler’s as a footnote ultimately which Owen facts And as to be decided this matter is testimony. If “manipula- “procurement” Kilbane’s my suppo- insert I will here suppositions, those are were found: refusal tion” of her preferred have would sition that defendants court had which the Trial facts the identical Ressler’s, entry after of claim of support insufficient just found feasible “ma- order, any that final is, includ- marriage. That commonlaw her for- brought would have nipulation” exchanged parties had the fact that ed time. ward at that again before vows in 1967 and commonlaw name, Kilbane’s lived trial, Braun used were testifying Braun’s reasons for given birth to his child him, just with had is no evidence but there complex, doubtless trial, and that “she was within weeks other anything were whatsoever him for food and shelter dependent upon and her own. personal, than facts her child.” On those for herself and in all re- Judge White I would affirm six months jailed Braun for the Trial court spects. refusing to testi- claiming wifehood and Then, evi- fy. holding any further without whatsoever, trial court hearing

dentiary wrongful procurement of

held that a of the witness the defend- established, resulting in been

ants had rights. Amendment waiver of their Sixth Ruby CLARK, Plaintiff-Appellant, appear to flow from These conclusions major- this finding, repeated by trial court’s AMERICAN BROADCASTING COMPA relationship ity, Braun/Kilbane NIES, INC., Defendant-Appellee. wife, but that was not that of husband that latter rela- pimp prostitute. If No. 80-1476. *15 law, in the tionship recognized is a status United States Court of Appeals, question remaining to be answered Sixth Circuit. how, definitionally, precludes one the other. Argued Reynolds v. United Dec. standards 1981. States, 145, 25 (1878) for a L.Ed. Decided July 1982.

finding of waiver of the to confronta Order of Oct. 1982. tion of a procuring the Rehearing Denied Nov. 1982. witness have not been met here. No evi had, ever and not one dentiary hearing was

fact character of other than the “marital” been relationship Braun/Kilbane has finding.

cited support

Finally, “manipulation procure- analysis appears

ment” to be based assumption that Braun’s expected

would have been to be less favor-

able defendants than was the inevitable of her refusal The trial testify.

result

court opinion had announced in a written