United States Supreme Court  

Argument of J. Vincent Aprile Ii

 Chief Justice Warren E. Burger  

We will hear arguments next in Taylor against Kentucky.

Mr. Aprile, I think you may proceed when you are ready.

 Mr. Aprile  

Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

This case arises out of a state criminal prosecution in which the petitioner Michael Taylor was convicted of the offense of second degree robbery in violation of the criminal code of Kentucky.

The two constitutional issues presented in this case are first whether the trial judge denied petitioner his due process guarantee under the federal constitution when he refused to instruct on the presumption of the innocence when he was requested to do so by the defense attorney and secondly whether or not the trial judge denied petitioner due process under the Federal Constitution when he refused to give the requested instruction on the indictment’s lack of evidentiary value.

This is a relatively simple criminal prosecution.

The state presented only one witness to prove its case.

That was Mr. James Maddox, the victim of the alleged robbery.

The defense presented one witness the petitioner Michael Taylor testifying in his own behalf.

No other corroborative evidence was presented by the state of any sort physical or testimonial.

An analysis of the facts that this case reveals that the at the inception of the trial during the voir dire of the jury, the defense attorney attempted to talk to the jurors concerning the presumption of innocence and the indictment’s lack of evidentiary value.

The prosecutor referred to the defense attorney’s comments about the presumption of innocence, but did not speak at all during voir dire about the indictment’s lack of evidentiary value.

In his opening statement, the prosecutor told the jury that he would but one witness, the alleged robbery victim and that the essence of the Commonwealth’s evidence would include the fact that a warrant was taken against Michael Taylor by the prosecuting witness and that the grand jury had returned an indictment against Michael Taylor.

He then was instructed by the trial judge to read the indictment to the jury which he did.

 Chief Justice Warren E. Burger  

Would your constitutional issues be different if there had been ten witnesses on each side?

 Mr. Aprile  

No Your Honor.

I do not believe that they necessarily would be, but I believe the facts of this case make it a prime vehicle for focusing on the impact of the presumption of the innocence.

In this case, it was clearly the word of one man against the word of another and if the status of the defendant as a person who has been arrested, indicted and arraigned is to be used as any indicia of guilt against him, this could be the crucial factor in this case to swing the jury to convict this man in a very, very close case and that is why I have focused on the facts in this instance.

Without belaboring the facts, I would also like to point to the fact that under the direct examination of this prosecution witness, the prosecutor elicited from him that he had indeed reported this crime immediately to the police that he had obtained a warrant against the petitioner and that he had testified before the grand jury seeking the indictment which of course was eventually returned.

Also the case boiled down to the fact that the defense admitted that Michael Taylor knew the robbery victim that he had been to his apartment on three or so occasions and he adamantly denied that he had participated in this robbery or that he was present on the night of alleged crime February 16, 1976.

At this point with the evidence in this posture the parties met with the trial judge on the instructions.

At that time the trial defense attorney requested and tendered instructions on the presumption of innocence and the indictment’s lack of evidentiary value.

The trial judge refused to give those instructions and gave no comparable version of them.

Instead he instructed on only three things.

One, the substantive elements of the offense of second degree robbery.

Two, he told the jury about reasonable doubt and gave a general definition of reasonable doubt and third, he instructed them that their verdict must be unanimous In this configuration that the --

 Justice John Paul Stevens  

Did the indictment go the jury room?

 Mr. Aprile  

No Your Honor, the indictment did not go to the jury room, but it was read in toto to them by the prosecutor at the inception of the trial.

At that point, the defense attorney still trying to talk to the jury, talked to them about the presumption of innocence.

 Chief Justice Warren E. Burger  

In this jurisdiction, is any criminal case ever tried without the essence if not the exact contents of the indictment communicated to the jury?

 Mr. Aprile  

Yes, Your Honor.

 Chief Justice Warren E. Burger  

How does the jury find out what the charge is?

 Mr. Aprile  

It is unique I suspect with regard to other jurisdictions, but I have reviewed many transcript of records in which indictment is never given to the jury nor read.

 Chief Justice Warren E. Burger  

I do not mean given, but someone tell us the jury what the crime --

 Mr. Aprile  

Normally, the prosecutor gives a synopsis of the charge in his opening statement and I want to make it clear Your Honor that it is not an attack made on the procedure of the telling the jurors about the content of the indictment or reading it to them or even giving it to them.

The problem seems to be in this context is that there is a conflict between being allowed to do this on the part of the prosecution in having some means of guaranteeing that the presumption of innocence is not overridden by a mistake on the part of the jury that the indictment is in some way evidence of the defendant’s guilt.

In this posture what the defense attorney attempted to do was what is done in very many jurisdictions and that is to have the trial judge give a cautionary instruction that the indictment could not be considered as having any evidentiary value in the case.

 Chief Justice Warren E. Burger  

Would you think that that would be more important, more critical in the situation where as in some jurisdictions the indictment goes to the jury room with the jurors along with other pieces of paper that are evidence?

 Mr. Aprile  

Your Honor, it might be in certain cases, but I will say in this case there was not one exhibit introduced.

This jury did not have this slightest concept of what an exhibit was.

All the evidence they heard came from the witness stand or statements were made in the course of the trial.

So they would have no way really to differentiate a paper exhibit, a documentary exhibit from testimonial evidence.

So they were looking at what had they had heard in that courtroom and they had heard the prosecutor under instruction of the judge read them in complete verbatim form the indictment.

So I think that while your distinction is valid and certainly comes to the play in many situations such as some of the cases I have cited in the brief, it is not really crucial in this particular case.

I think we have to look at the interplay that we have in this particular situation.

There are two things that occur.

Number one, the trial judge never tells in his instruction to jury that the defendant is presumed innocent.

Number two, he does not give them an instruction that the indictment lacks evidentiary value.

Add to this, the fact that even his reasonable doubt instruction that he gives to jury does not deal with the burden of persuasion.

Nowhere in any of those instructions that he gave does he ever say the burden of proof is on the prosecution.

Indeed, his instruction begins on the substantive offense with a statement “You will find the defendant guilty under this instruction if and only if you believe from the evidence beyond a reasonable doubt all of the following.

When he goes into his instruction on a reasonable doubt he says.

If upon the whole case you have a reasonable doubt as to the defendant’s guilt, you will find him not guilty.

Number one, no statement that there is a presumption of innocence accorded to this defendant.

Number two, no statement that the prosecution bears the burden of proof proving the man guilty beyond a reasonable doubt.

Number three, this prosecutor did two things that coalesce both of these arguments together.

Number one, he knew that the indictment had been read to the jury and he questioned this one witness that he had whether or not he had appeared before the grand jury and testified.

It looks to be on the face of it that what it was an attempt to bootstrap that one witness’ identification.

In other words, it is an indirect way of saying did you testify before the grand jury,

Yes I did.

Did they bring back an indictment?

Yes they did.

The grand jury believed you.

That was another reason why this cautionary instruction was so important as this Court pointed out in Estelle v. Williams to guarantee the presumption of innocence in the fundamental fair trial guarantee, you will look with close judicial scrutiny and practices and procedures they conflict with the presumption of innocence.

I submit that in this case, the refusal to give the instruction on the indictment’s lack of evidentiary value conflicted with the defendant’s constitutional guarantee of a presumption of innocence, but look also at what this particular prosecutor did in this case.

He had just heard prior to his closing argument, the trial judge refused to give an instruction on the presumption of innocence.

What did he do?

One of the very first things he said in his closing argument was the defendant like every other defendant who has ever tried, who is in the penitentiary or in the reformatory today has the presumption of innocence until proven guilty beyond a reasonable doubt, that is just a presumption in his behalf.

What did he do?

Number one, he equated the presumption of innocence with the concept of the people who had been tried, convicted and sentenced to imprisonment.

Number two, he indicated that the presumption of innocence really does not have any validity in a criminal trial because it certainly did not protect to all those people who are presently confined in the penitentiaries of penal institutions of Kentucky at the time of their trial.

Number two, he misstated, clearly misstated the definition of reasonable doubt which was given by the judge.

He told the jurors that a reasonable doubt in this case was a big doubt.

He also told them, here he is, this prosecutor is faced with absolutely no evidence, but the complaining witness.

What did he say?

He said the absence of evidence in this case clearly equates with the defendant’s guilt.

 Justice William H. Rehnquist  

Are you challenging the instruction given by the Trial Court on the question of reasonable doubt?

 Mr. Aprile  

Your Honor, number one, in all candors I tried to point out in my brief that number one, it was not challenged by the defense attorney in trial, but under the teaching of this Court in Boyd v. United States and as you applied them in Cupp v. Naugten and Kibbe vs. Henderson, this Court said that you must evaluate all of the instructions and I submit that this particular instruction while it may not be constitutionally bankrupt on the issue of reasonable doubt, it is deficient because it did not allot the jury to utilize the fact that reasonable doubt could be generated for the want of or lack of evidence.

 Justice William H. Rehnquist  

If it is not bankrupt as you say and not constitutionally deficient, what business does this Court have addressing itself to it?

 Mr. Aprile  

Your Honor, as I understand it, this Court does not wish to evaluate instructions and it is some sort of isolation.

This instruction, while I am not assuming arguendo they will pass constitutional muster, I would submit that it is still standing alone is so deficient that it does not guarantee or protect this man’s right to the presumption of innocence and that his guilt be proven by probative evidence beyond a reasonable doubt.

 Justice William H. Rehnquist  

Well, the Kentucky Appellate Court and your petition for certiorari do not raise that as a separate point, does it?

 Mr. Aprile  

No Your Honor and I am not trying to litigate it separately, but I do not believe that we can take the Kentucky Court’s position which is if you have give an instruction on the reasonable doubt standards, you do not have to give an instruction on the presumption of innocence.

That was their position.

They based it on a long line of Kentucky cases that go back to the early 1900s, maybe older than that, but my point is this was no model instruction on reasonable doubt.

Perhaps it is constitutionally bankrupt, I know I do not have that issue before you, but I am saying that it certainly was not a model of clarity and it certainly did not give that jury the reason to believe that they understood how the reasonable doubt standard worked.

Number one, it never talked to the burden of persuasion.

Number two, it never dealt with a crucial factor that this Court recognized in Johnson v. Louisiana that most courts recognize that reasonable can be generated just as much from the absence or want of evidence as from the evidence itself.

In this case, that was the crucial point.

There was an absence of evidence.

We had a swearing contest in this case.

Here is the complaining witness.

He said this man did it.

Here is the defendant.

I did not do it.

I was not even there.

It was a balancing contest.

 Justice Thurgood Marshall  

There are thousands of cases like that.

You are the one who steps on all of these.

 Mr. Aprile  

Your Honor, I only want you to accept those cases --

 Justice Thurgood Marshall  

You are the one to set a special rule where there is only one witness on the side, do you?

 Mr. Aprile  

No, your Honor, I certainly do not.

 Justice Thurgood Marshall  

Then why do you keep pushing that point?

 Mr. Aprile  

Because Your Honor, I think it clearly demonstrates the problem that we had in this case.

If you want me to reach back to the very clear abstract principles I would say this.

I think the dissenting judge summarized the problem very well in his statement.

He said the law builds in a presumption of innocence in favor of the defendant, but of what good is it to the defendant if the jury is not told about it.

Now, this Court in 1895, in Coffin v. United States clearly said that a reasonable doubt instruction is not sufficient when a man asked for a presumption of innocence instruction.

The language, although the case was a federal prosecution, was in the terms that every man is guaranteed the protection of the --

 Justice Potter Stewart  

That was not in constitutional terms, Mr. Aprile and that leads me to ask you a question that has troubled me from the time I read the briefs in this case.

I was unable to find that what you say as the first question presented by the petitioner was deprived of his constitutional right to due process of law by the refusal of the Trial Court to give it instruction under the presumption of innocence when petitioner’s counsel requested and intended such an instruction.

I was unable to find that that issue was ever raised in this case in the Trial Court or in the Appellate Courts of Kentucky.

I have looked at the requested instruction of that transcript.

I do not find that that was ever asserted as a constitutional claim.

I looked at the opinion of Judge Howard for the Court of Appeals of Kentucky and I find that he says that in answer to the contention, the well established law of Kentucky has been that as long as the Trial Court instructs the jury on reasonable doubt, an instruction on the presumption of innocence is not necessary.

Well, that would be no answer whatsoever to a constitutional claim and yet it seems to be in the view of the Court of Appeals of Kentucky, the complete answer to whatever defense counsel’s claim was.

I do not find any evidence except it mentioned once in Judge Wilhoyt’s dissenting opinion of the phrase due process that this was ever tendered as a constitutional issue to the Kentucky Courts.

 Mr. Aprile  

Your Honor if I may just speak to that, I was not the trial attorney, but I certainly was the appellate attorney and I wrote the brief in the Kentucky Court of Appeals.

Argument one was phrased, “the Court below erred to obtain substantial prejudice, denied appellant due process of law by refusing to give the defense requested instruction on the presumption of innocence.

Not only did it cite Coffin v. United States.

It cited this Court’s decision in Estelle v. Williams and predicated it on the fact that in Estelle v. Williams, you said that presumption of innocence although not articulated in the United States Constitution is part and parcel of the due process guarantee of a fair trail.

Now, I have no control over what the Appellate Court --

 Unknown Speaker  

You do not have any control but unless it is raised at the first opportunity to raise it which in this case was in the Trial Court, then it is not before us?

 Mr. Aprile  

Your Honor, I would like to make two points.

Number one, Kentucky Courts have never focused on the statement of a constitutional principle in an objection.

Number two, the attorney general’s office in this case has never challenged that this is a constitutional question at any stage of this proceeding.

Number three, neither in oral argument nor in any of the pleadings of the Courts have they said that we did not have a preserved constitutional issue here, but I will go one step farther.

 Unknown Speaker  

It is a matter of our jurisdiction, we decide that.

 Mr. Aprile  

Your Honor, my point is that at ever stage, Kentucky has allowed this to be litigated as a constitutional issue.

 Justice Thurgood Marshall  

They think that two of them together cannot give us jurisdiction?

 Mr. Aprile  

I understand that Your Honor, but my point is simply this.

The fact that the presumption of innocence instruction was requested and the fact that the lack of evidentiary value of the indictment was requested allows in Kentucky the appellate counsel to argue the constitutional ramifications of it, but I would not rest on that premise alone.

I will go to the language in the appendix, it is clear that with leave of Court in this particular case, the defense attorney after his instructions were rejected at the conclusion of the trial dictated his reasons into the record as to why he thought he was entitled to those instructions.

 Justice Potter Stewart  

Now, where is this?

 Mr. Aprile  

This would be at page 50 and 51, Your Honor and he points out there that this presumption of innocence alone is sufficient to acquit the defendant.

The Court in none of its other instructions so charges the jury with this very basic and fundamental principle of judicial fair play.

It was error for the Court to refuse to give this instruction.

He puts it in terms of a fundamental principle of judicial fair play.

 Unknown Speaker  

There is no mention whatsoever the constitution of the United States.

In the opinion of the Court of Appeals of Kentucky, their sole answer as a matter this is the established Kentucky law and of course that would be no answer whatsoever to a constitutional claim?

 Mr. Aprile  

Your Honor, as I recall in a recent case this Court decided, Diggin v. Smith, you rejected the same sort of argument when a federal district court judge said that the constitutional issue had not been presented to the State Appellate Court and you looked --

 Unknown Speaker  

It is a matter of fact is, it not, in some cases it is and in some cases it is not and I am asking, I am not arguing where if at all was it raised in this case?

 Mr. Aprile  

It clearly was raised in the Appellate Court by the language and the precedent cited.

 Unknown Speaker  

Did the Court have to consider it?

 Mr. Aprile  

Your Honor, the question --

 Unknown Speaker  

They did consider it but did it have to.

You are stuck with that are you not?

 Mr. Aprile  

Do they have to consider it?

I have only practiced there for five years on a myriad of appellate court cases before both of the Appellate Courts of Kentucky and I have never seen a decision in which they have refused to consider a properly objected too trial errors constitutional ramifications even though a constitutional basis was not set forth and I am talking about federal constitution.

 Unknown Speaker  

Well, they did not talk about your constitutional issue?

 Mr. Aprile  

Your Honor, I think what it really was is that they only took part of it when they talked in terms of substantial prejudice.

You will notice that they did talk in terms of due process with regard to the second.

 Justice Potter Stewart  

The indictment.

 Mr. Aprile  

The indictment and both of those arguments were stated the exact same way.

If they were going to differentiate, there was no basis in the record to make a differentiation between one being decided on a state law basis.

 Justice Potter Stewart  

So they could not possibly have been talking about the federal issue when they talked in terms of the established law of Kentucky, that is no answer whatsoever?

 Mr. Aprile  

I understand that your Honor.

 Justice Potter Stewart  

That is not addressing itself whatsoever to any sort of a federal constitutional claim?

 Mr. Aprile  

Your Honor, the Kentucky Court of Appeals has often elected not to address in my pleadings and other pleadings of the state public defender’s office, the constitutional issue presented.

 Justice Potter Stewart  

It was not raised in the Trial Court and as a matter of Kentucky procedures, is that sufficient ground for the Kentucky Appellate Court to disregard the claim under Kentucky law?

 Mr. Aprile  

I do not believe it is.

Number two I would cite you to two cases.

 Justice Potter Stewart  

That would be the general rule of many states.

That if a litigant does not raise something in the Trial Court then the Appellate Court is not required to consider it?

 Mr. Aprile  

This particular argument has never been made by the attorney general.

It has never been made in an oral argument by the Appellate Courts of Kentucky and the point I would say is even if you want to look at it from the point of view of the law of Kentucky, I will cite you to two cases.

I can give you the cites, I do not know the numbers.

Futrell v. Commonwealth and Jackson v. Commonwealth stand for the principles in Kentucky that an unobjected to denial of due process sufficient of an aggravated nature will be reviewed on appeal even if it has not been properly preserved.

Not properly preserved in constitutional terms, properly preserved at all, not even objected to.

We do not have a rigid contemporaneous objection rule like Florida did.

 Justice William H. Rehnquist  

Does the Kentucky Constitution have a due process clause in it?

 Mr. Aprile  

Yes, Your Honor.

In Futrell and in Jackson, they were dealing with federal constitutional rights though in the two cases where those statements were made.

 Justice Potter Stewart  

So even with respect to your second point, that is referenced to due process of law, could be referring to the state constitution, could it not?

 Mr. Aprile  

Your Honor, I did not raise any due process issue under the state constitution on either issue.

That question was not even before the Court.

I did not ground my issues in either case on anything but the Fourteenth Amendment.

 Justice Potter Stewart  

There is no mention of the Fourteenth Amendment throughout this opinion or the dissenting opinion.

 Mr. Aprile  

Your Honor, I think it would be a grave disservice to criminal litigants in the appellate process if State Appellate Courts could by the language of their opinion decline to reach constitutional issues and that that would be binding upon this Court.

 Justice Potter Stewart  

The constitutional issue was not raised in the Trial Court.

The Court has to be given an opportunity to consider whatever claims counsel has to make and if he does not make them, then he has waived them generally.

 Mr. Aprile  

Well, it seems that if we are moving to such a point in --

 Justice Potter Stewart  

Well, it is not moving to such a point.

That is the established law.

 Mr. Aprile  

Your Honor, what I would say in this regard is he put this in terms of fundamental due process, fundamental judicial --

 Justice Potter Stewart  

They did not mention due process in the Trial Court.

State or Federal --

 Mr. Aprile  

Yet the State Appellate Court did mention due process with regard to the indictment issue, the instruction on the lack of evidentiary value.

I do not think that there is any doubt that in this particular case both of these issues were addressed on a constitutional basis.

 Justice William H. Rehnquist  

Your response suggests that if they mentioned due process in treating the evidentiary value of the indictment, but not with respect to your other issues that perhaps if your are right that they used due process in the federal sense, they felt they were treating a federal question in one instance, but not in the other?

 Mr. Aprile  

Your Honor, the only thing that I am saying is that I think what you had there was a hastily constructed language in the opinion in which one instance they refer to one aspect which was the due process, in another, they refer to the substantial prejudice.

I grounded the issue on substantial prejudice and due process of law, Kentucky law and federal constitutional law before the Court of Appeals.

 Justice Potter Stewart  

It certainly is a very usual rule in Appellate Courts, however, that at least the Court need not deal with questions that were not properly presented in the Trial Court.

Now, is that the law of Kentucky or is it your submission that Appellate Courts in Kentucky will always consider a constitutional issue even though it is raised there for the first time?

 Mr. Aprile  

No, Your Honor, I certainly did not mean to give you that impression, but the language that I quoted to you from Futrell and Jackson is the law of Kentucky that because an issue is not properly preserved, even minimally preserved in terms of an objection does not preclude review by an Appellate Court in Kentucky if it is an aggravated denial of due process.

 Justice William H. Rehnquist  

So then the question would be whether in fact the Kentucky Appellate Court had passed on the constitutional question?

 Mr. Aprile  

I think the question, Your Honor can best be seen by the fact that if upon a review of the pleadings that I know are part of the record that is before this Court, you will notice that the Attorney General’s office waived any challenge in the Appellate Court to any question of preservation in terms of constitutional grounds.

 Justice John Paul Stevens  

Is your brief in the Court of Appeals part of the record?

 Mr. Aprile  

Yes, Your Honor.

It is not part of the appendix, but it is part of the record that was brought up from the State Court.

 Justice John Paul Stevens  

We can find in it then the question as you presented it to the Court of Appeals.

 Mr. Aprile  

Yes sir.

 Chief Justice Warren E. Burger  

But neither the court’s opinion nor the dissenting opinion makes any reference to the federal constitutional claim, does it?

 Mr. Aprile  

Well, Your Honor all I can say is based on my experience in Kentucky that the Court of Appeals’ decision uses a term due process could just as easily have been the federal constitution.

I do not know why they would have been referring to due process.

 Chief Justice Warren E. Burger  

In dissenting opinion Judge Wilhart says I believe he expresses the view that the Supreme Court of Kentucky would now reject the old line of cases relied upon by the majority and the understatement for that is the Kentucky cases.

 Mr. Aprile  

Your Honor, it is also the antecedent for that as the fact that in argument as well as in the briefs I pointed out that if those cases still existed on the books, they were no longer valid in terms of your pronouncement in 1976 in Estelle v. Williams that made the presumption of innocence part and parcel of the due process course.

 Unknown Speaker  

But the Court obviously did not consider your claim because it simply relied on the line of Kentucky cases.

I am looking at page 55 of the appendix.

The well established law of Kentucky has been that as long as the Trial Court instructs the jury on reasonable doubt, an instruction on the presumption of innocence is not necessary.

Now, that would be no answer whatsoever to your claim.

 Mr. Aprile  

My claim Your Honor was presented in terms of federal constitutional issue.

 Unknown Speaker  

And obviously, it was not considered.

 Mr. Aprile  

At no time, Your Honor was any argument, not one question in oral argument was placed to me on this basis.

Not one time has anyone until this moment suggested that this was not properly preserved and the State Courts of Kentucky did not do that.

There is nothing to suggest that their preservation --

 Justice Potter Stewart  

It is the same case, we ought to send back to the Court of Appeals of Kentucky and ask them as we have done in Krigder (Ph) v. California, did you decide this federal constitutional question or did you not?

 Mr. Aprile  

I would see that would be a possible remedy, but I think maybe the best answer your question, Mr. Justice Stewart is that one of my issues that I did not take before this Court, the prosecutor’s closing argument, there is a lengthy discussion that although the prosecutor’s closing argument was improper, it would not be considered on the grounds that it was not properly preserved.

Here, the opinion goes to great lengths to say, no proper preservation.

Why?

Because the Attorney General’s office argued lack of proper preservation.

In this case, they do not talk about this constitutional issue is not clearly before us.

I think you have to give a fair reading to this opinion and a fair reading of it is under Diggin v. Smith that I submitted federal constitutional issues to that court and you have to interpret to conclude that they did not reach my question simply because they do no make reference to it in the courts opinion.

 Chief Justice Warren E. Burger  

Not only that but they do not cite too, they certainly were aware of Estelle v. Williams and other cases that you now rely on but not any reference to them?

 Mr. Aprile  

Your Honor, I certainly do not intend to go outside the record, but as I say for over five years I practiced in the Appellate Courts of Kentucky and it is not unusual for them to dismiss federal constitutional claims without reference to a federal constitutional case.

 Justice Potter Stewart  

For them to answer a federal constitutional claim by saying it is well-established state law.

That just poses the question, that does not answer it.

 Mr. Aprile  

Your Honor, all I can say is that I have seen it done on innumerable occasions, but on the other hand, they are quick to point out the absence of proper preservation.

I do not know how much time that I have exactly left but I would like to reserve just a few moments for rebuttal.

 Chief Justice Warren E. Burger  

Mr. Shearer?

 United States Supreme Court  

Argument of Guy C. Shearer

 Mr. Shearer  

Mr. Chief Justice and may it please the Court.

I am getting a bit aged I am afraid to fight fire with fire, but sometimes you found yourself in such a position that you have no other out.

I agree with Mr. Aprile that this is a balancing contest and speaking of what occurred here.

Mr. Maddox the victim in here was robbed by Michael Taylor.

He was a man who worked, respected 51-year-old man at whiskey store, very diligent, had his own little place where he had lived for 16 years in the job that he had occupied for 17 years.

He had known Michael Taylor for 15 years and Michael came to his home for two or three times and apparently were friends.

On the night in question Michael brought a man with him.

He went to the door and told him they wanted to come in.

He said, “No, you cannot come in because I want to go to bed and go to sleep” and he had a friend with him.

He locked the door and went back to bed.

Shortly thereafter, 15 minutes thereafter he returned to his home and told him that he was going to let him in and he did not let him in, but he did unlock the door.

The two men pushed in the house, pulled him out, robbed him, took his money $10.00 or $15.00, took his cards, credit cards and the like, and then the man ran away.

 Chief Justice Warren E. Burger  

Now, jury has settled all these issues so the only issue before the court is the --

 Mr. Shearer  

The balancing contest was the only reason from my being that up Your Honor.

What we are here going today though is did the petitioner Michael Taylor has a constitutional right to have the jury instruction of presumption and of innocence tendered by his counsel as a separate instruction.

The instructions which were tendered here by counsel speak for themselves.

In his instruction, he showed that he said the man was slate clean or clean slate, these are just a few of the cracks left along.

When as a matter of fact the man was not slate clean or clean slate, he knew it, but he wanted to give the impression probably over to that jury adroitly by inflection of the voice convey the idea at a later time.

We are also concerned with this case that he mentioned here in the matter what he was basing it on --

 Justice John Paul Stevens  

General Shearer may I interrupt you with one question please.

 Mr. Shearer  

Yes sir.

 Justice John Paul Stevens  

Do you dispute the fact that the defendant comes in the court with a clean slate as far as the jury is concerned?

I did not understand your argument about the clean slate?

 Mr. Shearer  

I do not understand.

 Justice John Paul Stevens  

You argued that the instruction that the defendant tendered was not correct as I understood?

 Mr. Shearer  

Yes sir, it was not correct as to form and it would have been in there form to have accepted it.

 Justice John Paul Stevens  

And why is that?

Why does not the defendant come into court with a clean slate?

 Mr. Shearer  

You have to ask this counsel, Mr. Justice.

Why is it not?

Well, the prosecutor did not put it in issue because it did reflect on his integrity.

He was on a probated sentence for knowingly receiving stolen property, one year since.

 Justice John Paul Stevens  

But is it not true that for purposes of the matter on trial he was presumed to be innocent and presumed to come in with a clean slate.

 Mr. Shearer  

Yes, I agree with you 100%.

He was free as far as his charge was concerned until evidence why it is introduced against him?

 Justice John Paul Stevens  

As far as his charge was concerned did he not have a clean slate?

 Mr. Shearer  

No, Yes, but here is the point.

If he could get an instruction with slate cleaned or cleaned slate in it for which was no excuse at all because that was evidence.

He used it as a peg on which to get over to the jury in his argument that this man was clean slate on everything, all the way through, it is of no trick, it is as common as days gone in certain jurisdiction.

 Justice Thurgood Marshall  

As long as we have had common law courts, we have had the presumption of innocence -

 Mr. Shearer  

That is correct sir.

That is exactly right and we have had this argument along this very thing here goes back to King Darius over 2,500 years ago and that too did not have any specific instruction on it.

They said it took two or three witnessed that was the burden approved you had to meet, but it showed that the presumption of innocence followed you until it was overcome and overwhelmed by evidence.

 Justice John Paul Stevens  

Mr. Attorney General is it the practice in Kentucky if a man has the kind of clean slate where he has never been on probation or parole or anything at all then does he get the instruction?

If this man had had the kind of clean slate you have in mind?

 Mr. Shearer  

No, he was not entitled to it at all with that word clean slate in there.

 Justice John Paul Stevens  

Even if he had it completely clean slate?

 Mr. Shearer  

It said that presumption of innocence is proved until he is proved to be guilty.

It would have been all right, but the clean slate is evidence and there is no place --

 Justice Thurgood Marshall  

Yes, and that is not what the Court of Appeals of said.

The Court of Appeals said, “If the court gives a reasonable doubt instruction the court does not have to do anymore.”

So that is the law of Kentucky.

 Mr. Shearer  

That is absolutely the law of Kentucky.

 Justice Thurgood Marshall  

Up till now?

 Mr. Shearer  

In the case of Coffin the court did hold that the presumption of innocence was evidence.

Later however this Court in Agnew and Holt said that it was not evidence.

It is pure argument and argument has no place in the instructions script.

In the cases of Holt and Agnew, it was recognized that the first time to this Court that it was not proved are evidence.

Then if it was not evidence are proved there would not exist any need for the judge to give an instruction on something that was not proved.

The instruction was dovetailed with the evidence and Kentucky law is that the instruction should dovetail with the evidence.

If the presumption of innocence is not evidence then you can dovetail an instruction with the evidence.

The state has our own justice system.

Justice of Federal Court has its district system, has its Court of appeals system, its own rules and the rules of this Court.

The reason some things were not mentioned in the argument before the counsel was it, it was not preserved at the state level.

It could have been, but was not preserved and should have been if he thought there was something detrimental in it and that some deduction was made there from which was not reasonable.

The States and the Federal Government follow their rules and in this case I notice that there was supposed to be 20 and Rule 23, you were not supposed to bring things up for the first time here and that there were some brought up which I ignored.

We did not answer because we did not think it was that we should answer them.

 Justice Potter Stewart  

According to your brother these were not brought up for the first time here, but were brought up in the Court of Appeals of Kentucky in its brief, its constitutional arguments.

Do you agree with that sir?

Did they make their constitutional claims in the Court of Appeals of Kentucky?

 Mr. Shearer  

No, they did not.

Do you mean that they argued that this was within the constitution frame of Kentucky?

 Justice Potter Stewart  

No, that they argued that Kentucky Law was unconstitutional under the federal constitution?

 Mr. Shearer  

No, no sir.

 Justice Potter Stewart  

You said they did not argue that in the Court of Appeals?

 Mr. Shearer  

They did not.

 Unknown Speaker  

You talked about one witness in this case recalls to my mind the range of Latin legal maxim two that witnesses are weighed not counted and the weight in this case was what they were trying to circumvent through tendering an instruction that could have been a good instruction if it would have just not that two or three words in it and in the rewrite the instruction previously given by the Court.

 Mr. Shearer  

In Kentucky after the Court gives its instruction, they will read them and accept them or reject them and you can take exception to him or you can take exception to them or you can tender amended form as to the Court derived its own form, but it is not the Court’s duty to write instructions for the defendant.

That is the duty of his counsel.

Counsel in this case had no doubt looked a long time before he had found in that federal form book the one that contain those words clean slate of which he wanted to turn into a peg on which to hang a hope that he could talk to jury into believing in this man's record was spotless.

 Justice William H. Rehnquist  

Mr. Shearer, am I right in thinking now that the Court of Appeals of Kentucky is an Intermediate Appellant Court?

 Mr. Shearer  

Yes, it is now.

 Justice William H. Rehnquist  

Your highest court is now called the Supreme Court and I notice at page 59 of the record, there is an order by the Chief Justice of the Supreme Court denying what is the denominated discretionary review.

Does the Supreme Court have absolute discretion to deny a petition on whatever the grounds of the petition for it is?

 Mr. Shearer  

At the State level that is correct sir.

 Justice Potter Stewart  

Even if it is a federal constitutional claim, it has discretion to deny it, does it?

 Mr. Shearer  

Yes sir, I think it does.

 Justice Potter Stewart  

Right.

 Chief Justice Warren E. Burger  

Would they be granting, would they place that in a case like this on the grounds that it was the Federal constitutional claim was not preserved in the Trial Court, that would be one of the basis of discretion?

 Mr. Shearer  

That is correct.

Now, in the Coffin case which was mentioned here, the court as I said held it was evidence, but later held that the presumption of innocence and the doctrine of reasonable doubt were not equivalent.

They were not the same.

I think the Court was correct in that ruling, but the error and that was written I believe in 1895 when Mr. Justice White and --

 Justice Byron R. White  

It has been a long time.

 Mr. Shearer  

But it was concluded that the burden known as it is now is the bowman of Commonwealth to make its case and in this case we submit that that was done.

A tendered instruction number three, tendered instruction number four, all speak for themselves, all have things in them that are evidence and this is not evidence in the very case that was cited by the defendant, proves that were in there.

For example number four there, the law presumes the defendant to be innocent of a crime.

That is all right it could stop there, thus, the defendant although accused against the crime was clean slate that is, he does not say if no proof or heard and be entitled in an acquittal or dismissal.

They have to put this all this other in there and he ends up saying so that presumption of innocence alone is sufficient to equip the defendant so lack of proof alone that is sufficient and as far as the indictment goes in take it in reading it is a common practice in Commonwealth for the defense to get up and take the paper and say this is a piece of paper.

He has a piece of paper with a little indictment on.

This piece of paper is worth just as much as that until they put proof on which might substantiate what is on that one.

Those arguments are all are used and as far as presumption of innocence goes, I want to say this to this Court, I have practiced law 41 years.

The great book of which was a defense attorney and I have yet in the Commonwealth to hear a crowd start out in which the thing they get first is the individual's name as was done in this case.

The second thing they get are you acquainted with the fact that this man must be proven guilty beyond a reasonable doubt.

He has presumed to be innocent until that point is reached and then whenever they say yes, every single juror in this case, every one of them was asking.

They went back to have a discussion on it in chambers.

It was argued all on that side and if you are good counsel is with getting that in front of the jury and one of the favorites that we would use down our way we would say, “Look this is a presumption of innocence and you talk you can mention and say this was brought up in voir dire and a man is presumed to be innocent until proven guilty as stated by the instructions in this Court and then they will turn to the judge and say now Your Honor if I have misstated it please inform me wherein I have erred and you have got it in front of the jury far more and if the judge will either confirm it or deny.

 Unknown Speaker  

Is the record of the voir dire here in this case in the record?

Does the transcript of the voir dire appear in the record before?

 Mr. Shearer  

Yes, sir it certainly does.

And if some quotations that would appear is there and it shows that it went at great length into it.

The other thing that was brought out about this slate clean was that they were trying to make this man who worked on a liquor store probably knowing that some people were prejudiced against him for drives appear that he was not comparable with the man who had robbed him and who was in there using employing this vehicle for trying to gather an acquittal.

The last thing he has here in his second question is that of having an instruction as to the lack of value of an indictment that it is not evidence where a clean slate was that it is not evidence

The Court has those case are all Federal cases, we do not argue with them, but those are cases where they took Mr. Chief Justice, the indictment back into the jury room and where they could place embankment down and read it and reread it and these Federal Courts have held and very properly so that if you are going to do that then an instruction is going to cockney to let that jury know that is not evidence and that should be the law and no where in those cases is there any consideration given to the instruction that the indictment lacks evidentiary value in Kentucky or that it is a constitutional right.

Yet counsel for the petitioner continues to contend that because of decided cases the petitioner was entitled to an instruction on the indictment’s lack of evidentiary value.

The burden of proving that such an instruction is a Constitutional Right is not upon the Commonwealth, but it is upon the petitioner alleging and this burden the defendant has not met.

Some total of the evidence in this case can leave little doubt that there was nothing more imbued than the minds of those 12 jurors than the doctrine of the presumption that a man is presumed to be guilty until proven beyond a reasonable doubt and that instruction gave him, given by the judge and that judge has labored so hard to practice and record speak for it to be surely guided.

Let him make a statement now, let him come back after the argument, after the court and put other statements on the record and I do not know what more he could have done.

You could not expect him to abdicate his right to prepare instructions over to defense counsel.

I never could get him to do it so that is the sum total of the entire picture as I see it and it looks like my time is about up and I do not want to run over my friend Mr. Aprile did, but I think this is a very important case to Kentucky.

The ruling in Kentucky leaves more leeway, wider space, and a presumption of innocence is just one thread in the fabric and it is much better for when advocacy points of view you got more room to roam than you do in many of the other states.

 Chief Justice Warren E. Burger  

Very well, Mr. Aprile you have about one minute left.

 United States Supreme Court  

Rebuttal of J. Vincent Aprile Ii

 Mr. Aprile  

I would just like to of course take issue with the point that was made by the representative of the Commonwealth.

When you repose the brief in this case you will see that in both of those issues, Estelle v. Williams, the Fourteenth Amendment due process was all set forth as the basis for the due process denial on both of these issues.

 Unknown Speaker  

Well, you relied greatly, I have just glanced through your brief in the Court of Appeals of Kentucky, you were lying greatly on these three Federal Case, Coffin, Holt, and one of 218 U.S. 245 none of which was a constitutional case?

 Mr. Aprile  

Your Honor on page seven of the brief and page eight, talked in terms of the right of the fair trials of fundamental liberty secured the presumption of essence that sort of thing, it went on to say that in this context this denied the man has right of a fair trial.

 Unknown Speaker  

You do talk about it.

I simply pointed out that would you agree that these three federal cases are not constitutional cases?

 Mr. Aprile  

They are not decided in constitutional parameters that is true, yes Your Honor.

That was the point I was trying to make when we got into our original discussion yes sir.

Also, I would point out that at no time did the Trial Court or the Appellant Court in this case challenged the giving of this instruction on a presumption of innocence on the basis that it was defective in anyway.

The voir dire argument was certainly not part and parcel of a judicial instruction and I have cited many cases to that effect.

Thank Your Honors.

 Chief Justice Warren E. Burger  

Thank you gentlemen.

The case is submitted.