OFFICIAL TRANSCRIPT PROCEEDINGS BEFORE
THE SUPREME COURT OF THE UNITED STATES
DKT/CASE NO. «-53» H
TITf F WILLIE JASPER DARDEN, Petitioner, V. LOU ! If L.L. WAIN WRIGHT, SECRETARY, FLORIDA DEPARTMEN'H CORRECTIONS PLACE Washington > D . C.
DAT1- January’ 13, 1986 PAG£S 1 45
ALEtRSON REPORTING (202) 628-9300 20 F STREET, N.W. 1 IN THE SUPREME COURT OF THE UNITED STATES
2 ------x
3 WILLIE JASPER DARDEN, ; 4
5 V. .* No. 85-5 319
6 LOUIE L. WAIHWR IGHT , i
7 SECRETARY, FLORIDA DEPARTMENT . 5
8 OF CORRECTIONS ;
9 ------x
10 Washington, D.C.
11 Monday, January 13, 1985
12 The above-entitled tatter game on for oral
13 argument before the Supreme Court of the United States at
14 11i03 o’clock a.m.
15 APPEARANCES*
16 ROBERT A. HARPER, JR., ESQ., Tallahassee, Florida; on
17 behalf of the petitioner.
18 RICHARD W. PROSPECT, ESQ., Assistant Attorney General
19 of Florida, Daytona Beach, Florida; on behalf of
20 the respondent.
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ALDERSON REPORTING COMPANY iNC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 CONTENTS
2 OPAL AFCOiSJLSl-Gfi. PAGE
3 ROBERT A. HARFER, JR., ESO. ,
4 on behalf of the petitioner 3
5 RICHARD W PROSPECT, ES3. ,
6 on behalf of the respondent 16
7 ROBERT A. HARPER, JR., ESQ. ,
8 on behalf of the petitioner r eb uttal 39
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ALDERSON REPORTING COMPANY, INC.
20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 PROCSFDIIGS
2 CHIFF JUSTICE BCR GEEt He will hear arguments
3 next in Darden against Sain wriqht.
4 Mr. Harper, I think you may proceed whenever
5 you are ready.
6 ORAL ARGUMENT OF'ROBERT A. HARPER, JR., ESQ.,
7 ON BEHALF OF THE PETITIONER
8 MR. HARPER* Thank you. Mr. Chief Justice, and
9 may it please the Court, the prosecutor's closing
10 argument in the Millie Jasper Darden prosecution during
11 the final summary has been variously described as bad, as
12 unfair, as harmful, as prejudicial, as egregious, but
13 there is one word only that is sufficient to describe
14 this argument in this case, and that is reversal.
15 ^he question then arises as to why the case
16 hasn't been reversal and why is it here. And the simple
17 answer is, the Eleventh Circuit has not and did not apply
18 the appropriate standard announced in Caldwell versus
19 Mississippi.
20 On the same date that the Darden case came down
21 en banc from the Eleventh Circuit, July the 23rd, 198B,
22 that court decided Tucker versus Kemp, Brooks v. Kemp,
23 and William Tucker versus Kemp. The Tucker case has been
24 vacated and remanded under the Caldwell decision. We
25 raised Caldwell in the petition for rehearing which was
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 denied — that opinion is found in the joint appendix at
2 395 — when less tni a majority of the court voted in
3 favor of the petition for rehearing.
4 The Eleventh Circuit is squarely faced and
5 apparently rejected the Caldwell standard, and we would
6 submit that in view of the dissents, two dissents in the
7 en banc opinion on the 27tn of August, that a remand
8 would be inaccurate, and that an outright reversal is
9 required .
10 This argument is so bad it has been universally
11 condemned. It is so bad, as the District Judge noted,
12 even the state has not even weakly asserted anything but
13 that, it is improper.
14 The reviewing courts, each and every one,
15 starting with the Supreme Court of Florida, found that
16 the prosecutor's remarks under ordinary circumstances
17 would constitute a violation of the code of professional
18 responsibility.
19 Two astices of the Florida Supreme Court,
20 former Chief Justices each, described the remarks, as
21 vituperative personal remarks upon the accused and
22 appeals to passions and prejudice.
23 The magistrate who heard the evidence at the
24 evidentiary hearing below was "convinced that the jury
25 deliberation was substantially influenced by the u
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 pre jud Iciai argument.”
2 The Tlev?nth — Excuse me. The United States
3 District Judge who had a de novo hearing on the issue
4 said no one even weakly suggested that the prosecutors*
5 closing remarks were anything but improper. The Eleventh
6 Circuit said that anyone attempting a textbook
7 illustration of a violation of the code of professional
8 responsibility could not possibly improve upon the
9 example provided by the prosecution during Darden’s
10 trial.
11 vie submit that this case would be universally
12 applauded by the organized bar, and no concept should be
13 indulged to deflect from the fact that the sentencer in
14 this capital case was diverted from his truthfinding
15 functi on.
16 The purpose of the Code of Professional
17 Responsibility is universally accepted by every
18 practicing attorney and judge. The purpose of the rules
19 is to protect the due process rights to a fair trial.
20 These standards are objective, and we submit that these
21 standards are the litmus against which this prosecutor’s
22 argument should be tested, and wa submit that this test
23 in the search for the ever elusive concept called justice
24 would require that this trial, these proceedings be
25 reversed .
e;
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 Against this test every reviewing court, all
2 the parties in the litigation concede that the argument
3 is improper. The only problem is, the standard
4 appropriate in this instance has not been applied.
5 The argument itself comprises 44 pages in which
6 27 improper arguments are interjected. There are ten
7 attacks on the credibility of the criminal justice system
8 itself, attacks on the Department of Corrections, attacks
9 on the parole people for turning this man loose, and the
10 like, nine instances of personal opinion, two instances
11 of bolstering the argument, two outricht misstatements,
12 one interjection of race, and one attack on specific —
13 well, actually two attacks on specific rights.
14 In the order that they occur, the arguments
15 start off wit t entreaties to the effect, "It could have
16 been you, members of the jury, who had been murdered,"
17 arguments that I am convinced --
18 QUESTION* What is wrong with that sort of an
19 argument, counsel? I mean, the prosecutor has got to say
20 something.
21 NR. HARPFF* Well, Your Honor, I think he does
22 have to say something, but I think it has to be proper.
23 QUESTION* Is there some constitutional
24 standard of propriety that you see in our cases?
25 NR. HARPER* Yes, sir, particularly in a death
6
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 case. I think that, theca -- the — when you inf lame the
2 passions of the jury and divert them from the is sue at
3 hand, be it guilt or be it punishment, and inter ject
4 things like --
5 QUESTION* You say, then, that the Fou rteen th
6 Amendment of the United States Constitution proh ifcits a
7 prosecutor in a death case from saying to the ju ry,
8 members of the jury, it might have been you who was
9 killed?
10 MR. HARPER* Sell, that is just one of th e
11 first instances.
12 QUESTION* Hut I take it, though, that is what
13 you are saying.
14 MR. HARPER* That is one thing he said . Yes,
15 lour Honor. And I —
16 QUESTION* And you say it is unconstit utional
17 for him to say that.
18 MR. HARPER* Rhat I am saying more par ticularly
19 is unconstitutional is, there should be another defendant
20 in this courtroom, but alas, T know of no charge s to
21 bring against --
22 QUESTION* Well, but you started out ticking
23 off your claims as to how this prosecutor h ad falien
24 short, and I thought the first one you ga ve was, he said
25 to the members of the jury, this might have been you .
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 New, surely you meint tbit to nave a constitutional
2 dimension, didn't you?
3 HR. HARPER; Well, Tour Honor, that golden rule
4 argument, I was saying -- «hat. I have said was, there
5 were 27 instances of misconduct.
6 QUESTION * Well, how — you —
7 HR. HARPER* And not all of them maybe rise to
8 the constitutional level. T have some that I believe do
9 as opposed to that.one, and others that I think are
10 stronger. "The other defendant should be the Division of
11 Corrections," T think, is stronger.
12 "I wish the persons responsible tor him being
13 on the public were in the doorway and shot instead of the
14 victim, Hr. Turman." T think arguments like. He, Darden,
15 is a prisori'T. "Mr. Turman — that unknown defendant,
16 namely, the Department of Corrections, is criminally
17 negligent. And T will tell you this. I will guarantee
18 you that id I were in the same chair as yr. Darden, I
19 would lie retveen ny teeth," me, the elected official of
20 which probably a majority of that jury voted for.
21 And I think there are other arguments that get
22 even worse. "I have no contact with this case, but
23 sometime it emotionally gets to me. There is one person
24 on trial, he, Willie Darden, and his keepers." I think
25 those are the kinds of things that reach constitutional
8
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, ux. 20001 (202) 628-9300 1 dimension, Your Honor.
2 And I think it goes further when he says that
3 he, Darden, says ha asked for a polygraph. "Only an
4 incompetent lawyer would allow him to take a polygraph."
5 Kr« Goodwill, the defense lawyer, "You didn’t give my
6 shells back,” and these kind of conducts against this
7 lawyer, slamming stuff around, berating in front of the
8 jury, parading in front of the jury, putting the
9 credibility of the office of the state attorney, an
10 elected official under the constitution of the state of
11 Florida, in issue time and time again.
12 ”1 believe Willie Darden is a murderer. T will
13 believe that the rest of my life.” That kind of
14 argument, I submit. Your Honor, rises to the level of a
15 constitutional violation under any standard, and in
16 particular the Caldwell standard, which was not addressed
17 and has not been addressed by any reviewing court today.
18 Those are not the only instances of misconduct,
19 however, and.as I admit, there are more and more, and it
20 builds up time and time and time again, and the thing —
21 "The Department of Corrections turned him loose on the
22 public. Can we expect then to stay in prison when they
23 go there? Can’t we expect them to stay locked up once
24 they get there?”
25 "He shouldn't be out of his cell unless he has
9
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 a leash on him."
2 These are the kind of things, Your Honor, that
3 are not just isolated. They are persistent time and time
4 and time again. "Yes, there is another defendant, but I
5 regret I know of no charge to place upon him except the
6 public condemnation."
7 "Condemn them. Condemn the Department of
8 Corrections by putting Willie Jasper Darien in the
9 electric chair," is what that prosecutor is saying.
10 "He is a prisoner. He is supposed to be. Hr.
11 Turman is lead because of that unknown defendant, the
12 Department of Corrections. We don't have in the
13 courtroom allowe it. He, the Department of Corrections,
14 is criminally negligent for allowing it."
15 '"hose kxnd of arguments, I submit. Your Honor,
16 rise to constitutional question. It is a direct attack
17 on the reliability of the criminal justice system itself.
18 Here is the executive branch challening another branch of
19 the government, making attacks, personal attacks on
20 counsel in the courtroom, and then going through things
21 like, well, counsel is going to say — try the sheriff's
22 department.
23 Well, he has got notes that I gave years age,
24 and I used to be a defense lawyer myself, nine years.
25 And that is not the only thing, he asked. And I think
10
ALDERSON REPOkTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 the biggest thing ibout the argument is, ha gave one
2 argument — they gave one argument, 4 4 pages, 27
3 incidences of misconduct, and curing that time he says,
4 "I guarantee you I will ask; for death. There is no
5 question about it."
6 The second part of the trial, "I will request
7 you to impose the death penalty. I will ask you to
8 advise the judge. That is the only way I know he is not
9 going to get cut on the public. That is the only way T
10 know. It is the only way T can be sure. It is the only
11 way anybody can be sure, because the people that turned
12 him loose,” and those arguments, I submit to you, rise to
13 a constitutional question.
14 QUESTION; Your point is that that is an
15 unconstitutional -- that argument rises to the level o: a
16 constitutional standard .
17 ME. FAPPFEi I am sorry, sir?
18. QUESTION; The argument that he shouldn't hrve
19 been let out of the prison before, and that if he is let
20 out again, he might be out cn the public, do you say that
21 is an improper, impermissible argument
22 Constitutionally?
23 HP. HARPER; Your Honor, future dangerousness
24 is a different issue from what I am trying to say is
25 overall, considering the total circumstances of a
11
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 racially charged courtroom setting in a rural area of
2 mid-Florida in 1973, where the prosecutor entreats th«
3 jury during vcir dire that, can you try Millie Darden as
4 if he was white, then saying that their particular
5 argument, that, you Know, there are particular words that
6 are permissible, but they are included in the context cf
7 impermissible argument.
8 I think, future dangerousness is a permissible
9 argument, but to say that the only way I know that you
10 can protect the public is to -- and the negligent people
11 that turned him loose, to make sure it doesn’t happen
12 again, I don’t think that,is proper.
13 QUESTIONS Constitutionally impermissible?
14 That is my question.
15 MR. dARPSRs ^our Honor —
16 QUEST 10 Improper may be one thing --
17 MR. HARPSRs Yes.
.'8 QUESTION: — as a matter o* good taste. Is it
19 constitutionally impermissible to point those things
20 out?
21 MR. HARPER: I think there are certain segments
22 of the argument that pass constitutional muster, hut
23 considering the argument as a whole, the calculated and
24 designed effect it had to inflame the jury, it was a
25 model in its total context. It was designed and did, I
12
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 believe, violate every single article of the Code of
2 Professional Responsibility.
3 QUESTION! When vas this crime committed?
4 HR. HARPER; This crime was committed on
5 September the 8th, 1973.
6 QUESTION* 1973.
7 HP. HARPER: Yes, sir.
8 QUESTION; So yoa think it is constitutionally
9 impermissible for a lawyer in the courtroom to criticize
10 the system of justice that lets this kind of a matter run
11 that long? Constitutionally impermissible for a member
12 of the executive branch, as you put it —
13 HR. HARPSRs Yes, sir.
14 QUESTION; — the prosecutor to be critical of
15 the system of justice that takes 13 years to get
16 something complete!?
17 HR. PAUPER* Your Honor, it wasn’t 13 years old
18 when he said that. The trial, of course, was four ronths
19 later from the crime. The crime was committed on.
20 September the 8th, 1973. The trial was January the 17th,
21 1974.
22 As far as this trial, this proceeding dragging
23 on this long, if that is the question you are putting to
24 me, Your Honor, my position is that I am sworn to defend
25 a person’s rights as long as he has those rights.
13
ALDERiON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 In this case, Willie Jasper Darden, he will not
2 die because o* these rights he has, and these rights we
3 have been asserting the last eight years that I have been
4 wor'tina on this rase pro bono have been, reevaluated at
5 least three times by this Court.
6 All three issues we have filed have been
7 reevaluated, and the only thing that has changed in
8 Willie Darden’s case is not the facts, but the way we
9 have had to plead in ours, and the way we have had to try
10 to get the courts below to apply the standards that you
11 have set out.
12 Our case has been, I think, very active, and it
13 was visited by the en banc Eleventh Circuit four times.
14 QUESTION* Did you say it is the third time it
15 has been here?
16 MR. FARPERs Yes, sir. Yes, sir, it is the
17 third time here, but I think it is appropriate to say
18 that the issues are more ripe now. The magistrate made
19 certain findings below, and the District Judoe made
20 findings below that make things ripe in the sense of
21 this. There are historical findings that have been made
22 that are important by the judge below which are now
23 reviewed under a clearly erroneous standard, and I think
24 those findings, those ■‘■ypes of things solidify the rights
25 of Willie Darden to the relief that we are requesting.
14
ALDERSGN REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 And that isn't the only issue in the case. The
2 exclusion of Murphy, veniri urn in Murphy, I think, is a
3 perfectly viable issue. It certainly falls short of the
4 breadth of Lockhart, but is as viable an alternative to
5 the relief that we request on the argument. Mr. Tiurphy
6 was clearly excluded applying the wrong standard of law.
7 He was not questioned under the Adams standard, and I
8 think it is appropriate to review the case and reverse
9 the case on that issue by itself.
10 QUESTION: Hell, Furphy was sitting there while
11 the judge had made his introductory statements in that
12 regard, wasn't he?
13 MR. HARPER* YouC Honor, that cannot be gleaned
14 from the record, and 1 would submit, Justice Eehnquist,
15 that a contrary inference could be drawn from the
16 record. The appendix at Page 5, the transcript at Page
17 6, the judge says, "All right, at this time we will take
18 a recess for ten minutes. I would like you all back in
19 the courtroom to proceed with the selection of tfe
20 jury."
21 One of the jurors said, "Beg your pardon, sir?
22 She was talking, and I couldn't hear what you said."
23 I don't think you can conclude from the record
24 that Mp. Murphy heard.
25 QUESTION: Well, but if there is a debate on
15
ALuER.SON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 that, I think that cur casas on federal habeas review say
2 that you presume the judge applied the correct
3 standard.
4 HR. HARPERS Yes, sir, but I don't think that
5 presumption can apply in this case, and the reason I say
6 that are two. The findings are not fairly supported by
7 the record, and there was an inadequate development of
8 the material facts, and I think that the presumption cf
9 correctness that has been announced, and which really is
10 not new law, but just a new enunciation of the
11 proceedings under 254(b).
12 QUESTION If you should prevail, counsel, on
13 the juror Murphy issue, what is the result, vacation of
14 the conviction or only of the death penalty?
15 HR. HARPERs Only of the death penalty. Your
16 Honor.
17 If it please, Hr. Chief Justice, I would be
18 willing to reserve itj remaining time at this time for
19 r abuttal.
20 CHIEF JUSTICE BURGER; Kr. Prospect.
21 OPAL ARGUMENT OF RICHARD W. PROSPECT, ESQ.,
22 OS BEHALF OF THE RESPONDENT
23 MR. PROSPECT; Mr. Chief Justice, and may it
24 please the Court, w?th reqards to the first remarks that
25 Kr. Harper made, I would like to relate to the Court
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ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 hist or 5 cally that nine years ano when we argued this case
2 another lawyer appeared on behalf of ?!r. Carder, and gave
3 essentially the sane attack: on the statements of the
4 prosecutor.
5 Nothing obviously has changed. The remarks
6 have remained the same for the past 13 years. The
7 attacks have remained the same, and judicial treatments
8 and considerations of the propriety of those remarks have
9 likewise remained the same.
10 The only thing that has changed between nine
11 years ago and now is the federal hearing we had in 1979
12 in District Court. Nine years ago I stood here and told
13 you that although the remarks were indeed improper and no
14 thinking person could ever hope to defend them either
15 singularly or collectively# there was something : ha t I
16 thought was very compelling about the case# and that was
17 the lack of objection.
18 There was no objection to the particular
19 alleged inflammatory remarks. At that time# I knew only
20 that there was no objection, but by virtue of the federal
21 hearing# I knew why, and the Court knows now why there
22 was no such objection.
23 The lead defense counsel for Nr. Darden# Nr.
24 Goodwill, testified at the federal hearing which, if I
25 may digress for a moment# the federal hearing was held
17
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 for the sole purpose of 1etermining the Ineffective
2 assistance of counsel claim. As a major premise of that
3 challenge, the defense intended to develop the reason for
4 failure tc object.
5 It was their lean 1 position that the failure to
6 object to these arguments represented and constituted
7 ineffective assistance of counsel. Now, obviously, Mr.
8 Goodwill had tc testify that there was no objection, but
9 he gave as his reason the fact that apparently he and the
10 prosecutor were old friends.
11 They had gone to law school together, and they
12 had known each other approximately 13 years. When I
13 asked him directly why there was no objection, he stated
14 that because of his prior acquaintance with the
15 prosecutor and by having cases against him and knowing
16 him as a lawyer, ha was confident that his remarks, if
17 left unchecked, would rise to a level which would
18 represent reversible error without the need of
19 objection.
20 Now, this question that I asked of the
21 gentleman was specifically responsive to the testimony
22 presented on behalf of the defense at the federal hearing
23 from the ether lawyer, the junior attorney who was newly
24 admitted to the b’r who was assisting Mr. Goodwill. His
25 name was Maloney.
18
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 Mr. *aloney raid the reason there was no
2 objection was bams? he didn’t know anything that the
o prosecutor was saying was objectionable. Hr. Goodwill
4 contradicted that, and specifically added that at one
5 point in the closing argument Mr. Maloney arose as if to
6 object and he physically restrained him.
7 Mow, this was sworn testimony before a federal
8 magistrate. In this particular regard, even the
9 magistrate, the one person who Mr. Darden relied so
10 heavily upon, made a finding of fact after hearing
11 testimony. He rejected obviously Hr. Maloney's testimony
12 and accepted as a finding of historical fact that the
13 lack of objection was due to deliberate tactical choice.
14 Now, for the past few minutes we ha,re obviously
15 heard complaints about the arguments, and we lave heard
16 the requests that because of the arguments alone the
17 conviction should ba reversed.
18 QUESTION: Has there ever been a finding about
19 effective assistance of counsel in this case/
20 HR. PROSPECT: Yes, sir.
21 QUESTIONS There- has been? I thought so.
22 HR. PROSPECT* That has been consistent
23 throughout. The magistrate through the Eleventh Circuit
24 en banc every time.
25 QUESTION: Well, while I have you interrupted,
19
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) S28-9300 1 do you agree that there are Gone arguments that ge* to
2 the point where they are constitutionally impermissible?
3 NR . Pr.OSPECTi It viewed by themselves under
4 different circumstances and perhaps in a different case,
5 yes, sir. I agree that they have no business in a
6 courtroom in cur land.
7 But I have to temper that answer —
8 QUESTIDHs I keep hearing that, but I have
9 difficulty finding a case that after saying that they
10 reversed.
11 HP. PRQSPECTs That is true. And obviously Mr.
12 Darden wants this to be the first one. Rut in answer to
13 Justice Rehnquist's question about that, I think the
14 standard has been developed, at least in the federal
15 context, in United States versus Young.
16 Now, there the remarks weren't hardly as bad,
17 but. the concept and the standard that was applied was
18 whether viewing the remarks alone could a determination
19 be made that the jury was unable to properly weigh the
20 evidence.
21 Now, for a moment we brush aside the fact that
22 there was no objection, and that there was no objection
23 for a deliberate reason. Even without that consideration
24 momentarily the remarks were really more the product cf
25 somebody who perhaps got carried away to the point of
20
ALDERSON REPORTING COMPANY, INC. 20 F SI., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 forgetting his professional responsibility.
2 As 7 point out in my brief, the defense counsel
3 made a very skilfull closing argument in which he pointed
4 out. the fact of Mr. McDaniels parading around the
5 courtroom and slapping paper on the table, and apparently
6 he was doing something else that wasn’t demonstrated, at
7 least not in the record.
8 He mentioned to the jury that Mr. McDaniel
9 never argues the evidence or talks about the case. He
10 wants to embarrass you into a verdict. He wants you to
11 be harangued into a verdict, to use his words.
12 If I may guote, "My God, I get the impression
13 he wants to he there to pull the switch.” The jury heard
14 this, and they saw what the prosecutor did, and only they
15 did. We never did.
16 If you will remember, the record reflects that
17 these 44 pages of closing argument were followed by an
18 ecual, if not greater, number of closing argument pages
19 by the defense, during which I still maintain a very
20 skilfull usage of the prosecutor’s transgressions was
21 had .
22 DUESTIDNs Was this the issue before us when it
23 was here before?
24 MR. PR0EPE1T: Yes, sir, and only the issue.
25 QUESTIONf And that is when you were here
21
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 ' (202) 628-9300 before ?
HR. PROSPECT: Yes, sir.
QUESTION; And. we dismissed as im providently
granted ?
MR. PROSPECT* Yes, sir.
QUESTION; It was just a line, no opinion?
MR. PROSPECT: Just a line, sir.
The claim today is different in that we now have the Caldwell Eighth Amendment ramification
introduced. Although it hasn’t been stated, I guess what 0 th^ position is that this argument carried over to the sentencing phase of trial such that the recommendation
and thus the ultimate sentence was not reliable in terms of the Eighth Amendment.
Now, I will just mention that the defense counsel followed that argument with a lengthy closing argument, as long or longer. fit the close of that
argument, the judge instructed the jury in a capital case
in a first degree sarder, the instructions of which are
very long and involved.
At that point in time, the jury retired for, as the record reflects, two hours and ten minutes. After
they returned with their verdicts, they were polled individually <-hree times, once for each count. At that
time, brief closing remarks were made by defense and
22
ALDERSON REPORTING COMPANY, INC. 20 f ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 prosecution during the penalty phase of the trial.
2 Nothing a is ever been claimed here or before
3 that the remarks of the prosecutor during penalty phase
4 were improper ir. arty way. In fact, they are very brief,
5 and if I may sum up, the prosecutor asked the jury to
6 listen and remember the evidence that was presented at
7 trial, and I am sura you will find after listening to the
8 judge's instructions that Hr. Darden falls into the
9 aggravating circumstances and doesn't fall into any of
10 the mitigating circanstances.
11 At that point, the record shows that the jury
12 deliberated for an additional ^0 minutes and returned a
13 recommendation of death. If we add all that up, we are
14 looking at approximately fo ur-an.d-a-hal.f t.c five hours
15 when the recommendation of death came after the argument
16 which the defense maintains necessarily infected.
17 I think that is a factor to be considered. No
18 court has ever held that the arguments alone under the
19 circumstances of this case have infected the
20 determination of guilt. Now, I submit that if that is
21 true, then I don't see how the carryover effect could be
22 had to the recommendation, which was only a
23 recommendation, mini you.
24 If I could get back to the fact of the lack of
25 objection, I think that is really the issue in this
23
ALDERSON REPORTING COMPANY, INC. 20 f ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 case. fe’as that choirs panissible in a capital case? As
2 I have stated in my brief, I think that decisions of
3 counsel obviously can hind any defendant. Decisions cf
4 counsel can obviously define — I am sorry — bind a
5 capital defendant. But will those decisions, even though
6 deliberate, will tney allow a capital defendant to be —
7 to suffer any adverse or prejudicial effect.
8 And that is what I think, the crux of this case
9 is on this issue. And I have offered the standard of
10 reasonableness, borrowing from Strickland versus
11 Washington. Did Sr. Goodwill's decision not to object,
12 did it represent a reasonable decision under the
13 circumstances and facts of that case?
14 flow, I would like to remind the Court again
15 that this case was indeed the first case in Polk County,
16 Florida, in 1973. Fveryo.ne involved was relatively, if
17 not totally, new at proceeding under cur capital statute
-M 18 at that time.
19 If you accept the premise that Goodwill offered
20 under oath that the prosecutor would go indeed to the
21 point of reversible error, you have got to examine what
22 possible effect he expected or hoped for. He didn't get
23 a verdict of acquittal. That is obvious. So he wasn’t
24 successful.
25 But nevertheless was he reasonable in
24
AIDERSON REPORTING COMPANY, INC.
jLO F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 anticipating at that time the proposition that if he
2 allows! the prosecator to io on, coal! he possibly
3 embarrass the jury out of a verdict?
4 Me turned everything the prosecutor said
5 skilfully around, I submit. I think at that point in
6 time, not using the benefit of hindsight and
7 result-oriented thinking, I think it was reasonable. He
8 had made other tactical choices during the proceedings.
9 One, which I mentioned in the brief, regarded
10 alibi. Darien at all times wanted to present a
11 defensive alibi, and based on their investigation, the
12 lawyers assigned to the case could not account fcr his
13 whereabouts between approximately 5s30 and 6s30 — 6sCO
14 o'clock, I am sorry.
15 That period of time was a gap. The decision
16 was made not to go with a strong alibi defense in terms
17 of a formal defense. The iecision as revealed in the
18 federal hearing was to let Kr . Darden cake the stand,
19 provide evidence of his alibi up to a point, and let the
20 state provide evidence from that point after, in other
21 words, before the gap and after the gap.
22 That turned out, we learned again in the
23 federal hearing, to be a proper choice, because the
24 prosecutor told the defense lawyer later, after the
25 trial, that he was just hoping an alibi defense would
25
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 have been presented because he sas fully prepared in
2 rebuttal to come ii and show that from where ?*r. harden
3 said be was at a given point, there was ample time
4 driving the routes necessary to have gotten tc the
5 furniture store, committed the crime, headed cut of town
6 on State Road -- or US 92, and had the accident, which
7 was never iis putei.
8 That was a good choice. Again, the choice
9 about failing to object, while not good, was still
10 reasonable, and I think even though this is a capital
11 case, and I am not standing here saying that we can
12 always provide procedural bars in capital cases. This is
13 a serious business. T think, to borrow language from the
14 Court in other decisions, perhaps capital defendants are
15 entitled to as much protection as possible, but I
16 nevertheless think in the circumstances of this case it
17 was reasonable.
18 ihe evidence that was presented was strong. I
19 think the jury was intelligent enough to know that the
20 prosecutor was simply being outrageous. There is no
21 showing that they were infected or affected by what he
22 said. The evidence was ample.
23 They could have and obviously did return their
24 verdict b=sed only on that evidence, and I think the
25 petitioner here, the defendant has failed to show other
26
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 than the claim how nr why there is even the possibility
2 that they were affected by the closing argument.
3 I think he needs to do this. I posited that
4 position in my brief, and I think if anything is written
5 in that regard it should be that if you are going to make
6 that claim under facts and circumstances like this case,
7 there should be some burden shown. I think there has
8 been none offered and obviously none shown.
9 Regarding the Witherspoon issue, I cheerfully
10 admit that the question of Caldwell was raised in the
11 third petition for rehearing seeking the fourth en banc
12 hearing of the Eleventh Circuit. I also note that twc of
13 the dissenters mentioned that the issue, the Eighth
14 Amendment issue of dosing argument ornht to be
15 considered in light of Caldwell versus Mississippi as
16 well as the series of cases that the Court had come out
17 with about the same time.
18 I don't believe, however, that the views of ti.e
19 dissenters are equivalent to a holding on the issue. I
20 don't really think the Eleventh Circuit has ever
21 addressed this.
22 But as against the possibility that seme could
23 consider they had, I would like to say that this is not
24 Caldwell. I don't need to remind the Court what was
25 involved there, but I will briefly emphasize that in
27
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C 20001 (202) 628-9300 1 Caldwell that which lessened the reliability of the
2 sentence were remarks made by the prosecator to the jury
3 who was the sentencer, unlike Florida.
4 This jury in Mississippi lid the actual
5 sentencing. The remarks were of the tenor that, ladies
6 and gentlemen of the jury, you don’t really need to worry
7 about what you are going to do, because this case is
8 going to be reviewed by higher authority. An objection
9 was made, unlike here, and the trial judge reinforced
10 that statement when he repeated to the effect, ladies and
11 gentlemen, that is true, there will be further review of
12 this case.
13 How, for the very, T think, compelling and
14 adequate reasons expressed in the lecision, that could
15 have left the jury with the possibility that they could
16 have shirked their responsibility with the idea that
17 someone after them would take care of sentencing this
18 individual.
19 Thus the reliability was lessened. We don't
20 have that here. We have got improper remarks, but we
21 don’t have misstatements of law. We have nothing going
22 to the jury which indicate} they could do anything but
23 what they had to do. At that point it was guilt or
24 innocence.
25 We don’t have the trial judge reinforcing what
28
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 the prosecutor said. I realize that the rather loose
2 claim has been made that the trial judge told the jury to
3 listen carefully to the closing arguments, that these
4 lawyers were trained, and that they should pay close
5 attention.
6 But I don't think that hardly rises to the same
7 level as the statements of the trial judge in the
£ Mississippi case.
g The last issue which has not been argued by Mr.
10 harper yet, if at all, regards the ineffective assistance
11 of counsel.
12 QUESTION* May I ask, because it was argued,
13 are you going to comment on the Witherspoon problem in
14 your presentation? That was argued both orally and in
15 your brief.
16 HR. PPCSPECT: Yes, sir. Thank you for
17 reminding me. I completely forgot.
18 QUESTION* And in your brief, I notice you
19 state that the venlcman Murphy told the trial judge his
20 principles were such that he could not vote tc recommend
21 a penalty regardless of the facts, but that is not what
22 he told the jury, is It? That was not the question that
23 was asked, was it?
24 MR. PROSPECT: Of Mr. Murphy?
25 QUESTION* He was asked whether he could do
29
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 that without violating his own scruples.
2 HR. PROSPECT* Pis principles.
3 QUESTION* Yes. Do you think that is an
4 adequate question?
5 KB. PROSPECT* Yes, I dc. I think it is a
6 semantic exercise to say that using the Witt standard of
7 substantially impairing or prevent, .1 think when the man
8 who sat throughout the entire examination, and I would
9 like to step aside for one moment, there is record
10 support.
11 QUESTIONS I wanted to break my question in two
12 parts. First, if ypj just had that question by itself,
13 would you not agree that that is just almost verbatim tne
14 Illinois statute that was held insufficient in
15 Witherspoon?
16 WR. PROSPECT* Perhaps —
17 QUESTION* They were asked there whether they
18 had scruples against the death penalty.
19 HR. PROSPECT* Perhaps relating to the statute,
20 but the question asked in Witherspoon had nothing to do
21 with the statute in terms of the language. wy reading of
22 Witherspoon was that the h7 venirmen who were excused
23 were done on the basis of one or two perfunctory
24 questions to the effect, do you have any views against
30
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 QUESTION! Well, the statute provided if you
2 have conscientious scruples against capital punishment,
3 you can he excused for cause.
4 BB. PROSPECT; Sad I —
5 QUE ST ION; Do you think today if a venirman is
6 asked if he has conscientious scruples against capital
7 punishment, and he says yes, would that be sufficient to
8 justify his using it for cause?
9 MR. PROSPECTS No, I don’t think it would.
10 QUESTION* Well, why isn’t that precisely the
11 question that was asked here?
12 MR. PROSPECTS pecause Mr. Murphy was asked, do
13 you have any principles in opposition such that you could
14 not participate in a recommendation of the sentence of
15 death.
16 QUESTION* Without violating these principles.
17 MR. PROSPECTs Without violating those
18 principles.
19 QUESTIONS Do you thi'.k it is impossible that a
20 person could violate his own principles if the law
21 required him to do so?
22 MR. PROSPECTs Is it possible to violate?
23 QUESTIONS Yes, that is exactly what —
24 MR. PROSPECT* Yes, I think it is possible.
25 QUESTIONS Then he hasn’t said you couldn’t
31
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 vote against the death penalty. He has only said he
2 can’t do it without violatina his principles.
3 MR. PROSPECT: Well, it would be my position
4 that the violating of his principles would represent an
5 impairment of his ability to follow the law.
6 QUESTIONS I see.
7 MR. PROSPECT; That is my position on that.
8 QUESTION; Then I suppose you would say that
9 the statute held invalid — the Illinois statute held
10 invalid in Witherspoon is now valid under the later
11 case?
12 HR. PROSPECT; Yes, sir.
13 QUESTION: Witherspoon has been overruled, is
14 your position. That is what it comes down to, I think.
15 MR. PROSPECT; I don't know I would go that
16 far.
17 QUESTION: You just lid.
18 MR. PPOSPECT; If I could explain my answer, I
19 don't think the statute was as much in issue in
20 Witherspoon as it was the lack of questioning which
21 trapped the statute. Had the Illinois judge elucidated
22 on the statute and established not only the opposition to
23 capital punishment, but also that the individual jurors
24 involved were opposed such that they couldn't follow the
25 law, I don't think Witherspoon would have been decided
32
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 the way it was.
2 If I recall Justice Stewart setting the tone of
3 that tria 1 --
4 QUESTIONS In other words, you are saying if
5 they had asked that additional question, which of course
6 they didn’t ask here, either, as to whether they could --
7 NR. PROSPECT* No, no, they didn’t ask
8 additional questions, but previous questions were asked
9 at least 14 times,
10 QUESTION Of this juror?
11 NR. PROSPECT* No, sir. To the pool, the
12 entire pool, and two things I would like to point out.
13 In the beginning, the trial judge explained to the entire
14 people before 12 were selected to go into the box for
15 individual examination, he specifical1y told them in
16 language which even the defense doesn’t complain about
17 that they were alL going to be asked questions regarding
18 capital punishment, so they at least knew that something
19 was coming in that regard.
20 Now, Mr. Harper faults the Eleventh Circuit as
21 well as the District Court, the conclusion cf both courts
22 that presumably or obviously Mr. Murphy heard all
23 questions going before the one asked of him.
24 Now, there is record support, a gentleman by
25 the name of Wulroy — I believe it is on Page 89 of the
33
ALDERSON REPORTING COMPANY, INC. 20 F 5T., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 trial transcript — was callei in after peremptory
2 excusal, and the first thing asked of him was, could you
3 hear the questions ws have been asking all the jurors?
4 And he says, yes, I could.
5 Now, it would be obviously better if the same
6 question was askal of Murphy, but it wasn’t. But I think
7 the presumption or the logical inference can be that the
8 circumstances of the questioning of the jurors was such
9 that all prospective jurors, and I am talking about those
10 before they were called into the box for individual
11 examination net only hear! the questions asked of those,
12 they observed the people who answered in the specific way
13 those five who were excusel. They saw them step down.
14 QUESTION* Well, may I ask, do you think that
15 the record before the particular question was asked of
16 Murphy is clear enough so that if the judge had just said
17 to Mr. Murphy, is there any reason why you can’t sit in
18 tnis case, and he had said no, that he could then have
19 been -- I am sorry. I have it backwards.
20 He did at least lave to ask this question to —
21 I am sorry. No, I have it backwards. I’m sorry. • I
22 shouldn’t have interrupted you.
23 MR. PROSPEIT* That is quite all right, sir.
24 put, wherever I was, I think I was about to —
25 QUESTION* You are relying heavily on what was
34
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 said in the general discussion rather than on this
2 particular question, is really what I air trying to —
3 MR. PROSPECT i I am relying on it, four Honor,
4 but I still don’t abandon the position that the question
5 is sufficient under Witt to demonstrate that Mr. Murphy
6 could not follow the law.
7 QUESTION; If it weren't for Witt, would you
8 agree it was plainly insufficient under Witherspoon.
9 Would you not agree with that? You have to rely on Witt
10 as in effect having overruled Witherspoon, I believe.
11 MR. FROSPECT; To a certain degree, but no, I
12 believe it would have been sufficient under Witherspoon
13 simply because we don't know the exact questions asked in
14 Witherspoon.
15 QUESTION-* But we ho know from the first
16 paragraph of the Witherspoon opinion that questions
17 complying with the Illinois statute were not sufficient,
18 and the questions complying with the Illinois statute are
19 substantially in the language that this trial judge, who
20 had had no experience in death cases, as I understand it,
21 asked in this case.
22 MR. PROSPECT* That is true. Mo experience.
23 Put all courts below have consistently held that he
24 understood the concept of Witherspoon perfectly. I might
25 note that the question that he asked goes only to the
35
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 first part of Footnote 21 in Witherspoon. He never get
2 to the guilt or innocence. He went right to sentence/
3 those two concepts which were merge! in Witt an!/
4 according to the opinion simplified.
5 Now, if I nay borrow somewhat from the
6 preceding argument, I think that it must be remembered
7 that the objection raised here, and I think rather
8 prophetic in lighr of the argument before us, the defense
9 filed a pretrial motion contending that the state net be
10 allowed to ask Witherspoon type questions, contending
11 that such questions were irrelevant to a determination of
12 guilt or innocence, but that if the court would allow
13 those questions and if a positive response were as»ked,
14 that challenges for cause not be allowed, without
15 articulating it. any aora than that, and I practically
16 stated it verbatim.
17 The position of the defense in *73 in light of
18 our new statute was that now that we have a bifurcated
19 trial, anything that the state miaht want to know
20 regarding predisposition to Witherspoon has nothing to do
21 with guilt or innocence. That was the motion. It was
22 denied, and a continuing objection was lodged throughout
23 th“ entire examination, but nothing was renewed. And I
24 think that is critical.
25 No juror excused was made the object of a
36
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 statement, motion, or objection that the individual was
2 impartial, there was no objection, or request, perhaps
3 more importantly, there was no request that the trial
4 court continue questioning and see if the juror,
5 whichever jurcr hai given a response regarding opposition
6 to capital punishment, to see if aiditional questioning
7 could be had to determine rehabilitation on guilt or
8 innocence.
9 In that regard, T think that the precise issue
10 is not really raised in terms of the Grigsby concept.
11 The excusal, I think, was proper standing by itself. The
12 right Question was asked. I don't know what the wrong
13 sriniari is that they are continually harping on. But I
14 submit that it. was proper.
15 vcw,'if I could return to the last phase, I
16 only want to say since my time is running out that — and
17 if I may, it will be by way of conclusion, this case in
18 addition to being as old , s it is is rather eerie.
19 We have a murder occurring in September of
20 1973. Mr. Darden was arrested that evenina and was
21 immediately appointed counsel. The record indicates both
22 directly and I think you can draw logical inferences
23 therefrom that the entire staff of a public defender's
24 office in Polk County, Florida, was devoted to this first
25 capital case.
37
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 If anyone suffered, I think, in that, four-month
2 period I think it an3 the other criminal defendants in
that county who for all the record suggests were getting
4 no attention to their particular cases whatsoever. The
5 case is prophetic in that the lawyers 13 years ago
5 decided that Witherspoon did not apply to a bifurcated
7 trial by filing their motion. T think that was
3 innovative and brilliant.
9 We have i situation where a trial judge in what
10 can only be considered a prophetic vein told the jury
11 that at the second phase of the proceedings they were
12 only going to recommend sentence, and that he was going
13 to give that recommendation, however, great weight. The
14 great weight concept to our recommendation in Florida was
15 embraced in Tedder versus State, and that wasn’t decided
16 until, two or three years after this trial.
17 The trial judge told the defendant, told the
18 jury, and told the defendant's lawyers after reading the
19 statutory mitigating items in our statute, said that no
20 one was limited to these things. Anything in mitigation,
21 anything relevant rfis coming in. The parameters of
22 Lockett were character and record of the accused. Here
23 he asked for history, family causes, reputation, anything
24 pertinent to the proper sentence.
25 The lawyers again perhaps being able to see in
38
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 the future asked questions of the individual jurors
2 relatino to rase, whit they felt about statistics showing
3 the number of convictions and arrests for blacks versus
4 whites, something which I believe was argued last month.
5 Tt is surprising, I think, that the amount of
6 due process afforded to this individual has nevertheless
7 resulted in this Islay- 1 am not hare to ask for speed.
8 I am here only to ask for looking at this case in the
9 context of what it was as it was tried 13 years ago.
10 tfe can’t judge either the performance of
11 counsel or the performance of the judge by standards
12 which have evolved at this point in time, ever, though I
13 might add I don’t think the judge could have improved one
K bit between new and then.
15 Therefore I would ask that the Eleventh
16 Circuit’s decision in this case be affirmed in all
17 respects.
18 Tl.a nk you.
19 CHIEF JUSTICE BURGER « Do you have anything
20 further, Mr. Harper?
21 ORAL ARGUMENT OF ROBERT A. HARPER, JP . , ESQ.,
22 ON BEHALF OF THE PETITIONEE - REBUTTAL
23 MR. HARPERi Yes, sir, Your Honor.
24 The state would apparently have Mr. Darden come
25 forward showing some prejudice by this argument. In
39
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-Y300 1 other words, placo some burden cf shewing on us which is
2 the standard adopted by the Eleventh Circuit. We would
3 submit than it is more appropriate that the standard is
4 on the state to show that there was a livelihood of harm
5 from this prejudicial argument.
6 It is our position that this trial, the system
7 itself broke down. Unlike Caldwell, where the judge
8 actively intervened and made a proper instruction, the
9 judge was quiet and didn’t say anything. As a matter of
0 fact, when there were what has been categorized as
tentative, a weak objection, the judge in one instance
2 oV'.-rruled it, and in the other instance said, proceed
3 with the case.
4 QUESTION: What do you have to say about the
5 failure of an objection? Is that correct — the
6 objection?
7 ME. HARPERi The magistrate found there was an
I -W objection, firstly, Sr. Chief Justice, and that was at —
9 it is in the appendix at Page 240 — excuse me, the
20 appendix at 2 4, late and tentative. T would submit that
2 finding of fact is reviewsble under the clearly erroneous
22 standard. The District Judge, however, said that the
23 state decision was rendered by the Supreme Court to
94 entertain fair trial on the merits and pronouncements.
25 QUESTION: What does the transcript of the
40
ALDERSON REPORTING COMPANY, INC.
20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 trill show with respect to an objection?
2 lS. HARPER* Your Honor, in iy opinion, it shows
3 defense counsel alternatively rising to object to the
4 argument in two separate instances.
5 QUESTION* And what was the specific objection
6 made in those two instances? Wasn't one having to do
7 with the gun?
8 MR. HARPER* One — the second objection was —
9 that is about the fifth time the state has said he wished
10 the defendant would kill himself. And the first
11 objection was to tie evidence. But the second objection,
12 I think, was clearly to the improper argument.
13 But as to this prejudice showing, I think it is y 14 important to note that the jury even in this case was
15 split, and if there is such universal accord cn the death
16 penalty being appropriate -- even in the face of this
17 argument there was a split verdict — I think there is
18 some -- that is some showing, at least, uhat.the
19 reliability of the outcome has been infringed upon.’
20 QUESTION* Mr. Harper, how do you read the
21 magistrate's — is it a finding, defense counsel's
22 objection to the prosecutor's argument was late and
23 tentative? What does that mean?
24 MR. HARPER* I read it to mean that there was
25 an objection, albeit late, albeit a little weak, hut
41
ALDERSON REPORTING COMPANY, INC. 20 F >T., N.W., WASHINGTON, D.C. 20001 (202) 6^8-9300 1 there was an objection.
2 QUESTION» What about the testimony of the
3 lawyer at the habeis hearing?
4 MR. HARPER t Well, there are two lawyers who
5 have testified there, of course. Your Honor.
6 QUESTION» Did they claim they objected?
7 MR. HARPER; One said -- yes, sir. There was a
8 conflict in the testimony between those two lawyers.
9 Just one of them sail co-counsel, Mr. Goodwill, was too
10 intoxicated to show up, and I had to no to court one day.
11 There was a conflict cn that testimony. There was a
12 conflict on the testimony about the objection. One said
13 we didn’t know about it. The ether one said it was a
14 tactical decision.
15 But in any event, I would submit --
16 QUESTION; *hat was a tactical decision?
17 MR. HARPER» The not objecting was —
18 QUESTION: So there was testimony that there
19 was no objection.
20 MR. HARPER» There was an objection that he
21 withheld objection until a later point, Ycur Honor. It
22 was not testimony there W33 no objection, that early
23 objections were withheld.
24 QUESTION; Mr. Harper, the Florida Supreme
25 Court found, and this is on Page 50 of the joint
f'Z
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 appendix, appellant admits that his attorney voiced but a
2 single objection to the prosecutor's closing arguments,
3 and that it was not directed to any of the alleged
4 inflammatory matter, and that his attorney waited until
5 the fifth objection -- a fifth occasion to object at
6 all.
7 HR-. HARPER* Yes, sir.
8 QUESTION* Do we have to disregard that?
9 MR. HARPER; Well, sir, I think there are two
10 answers to that. First of all, the magistrate, has made
11 findings now that *e are in federal habeas proceedings.
12 Secondly --
13 QUESTION'* Put they were — accepted hy the
14 District Court.
15 MR. T-IARPFT* Yes, sir. Yes, sir. And
16 secondly, we have the Supreme Court of Florida in any
17 event reaching the merits of the issue, clearly. And
18 thirdly, that is an alternative grounn -- the Supreme
19 Court never said wj are applying the procedural bar.
20 They in footnotesfjp.te Jonas v. State, but they don’t say
21 we are applying a procedural bar, and indeed they can,
22 but because counsel lidn't object, it triggered a-rule in
23 Florida that this case would have to be reviewed under a
24 fundamental error standard, under state law. It is
25 reviewabla without objection, and it had to be reviewed
43
ALDERSON REPORTING COMPANY, InC. VO F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 by the Supreme Coart under the death penalty statute
2 The total record had to be anyway.
3 So, the Supreme Court of Florida had r ea ched
4 the merits under either one of, whether there wa s or
5 wasn't- an objection. They had to and did reach the
6 merits of the issue.
7 The Witherspoon argument rebuttal repl y I would
8 like to make is that the appendix bailed tc pick up the
9 n°xt line after the excusal of juror Murphy, and that is
10 at Page — let's see, Page 9.
11 It says, "Ml right, sir, you will be excused.
12 (Murphy then left the box)." In the trial trans cript,
13 Page 165, the very next line is the judge saying , "Ms.
14 Horne," the court reporter, "you wilx please not e an
15 objection for cause by counsel."
16 And I would submit that the trial juig e himself
17 enunciating that objection into the record is al 1 that is
18 necessary. T don't think that an experienced tr ial
19 lawyer in Florida is going to say, oh, yes, sir. Your
20 Monor, and in addition to that objection because I would
21 like to explain furt'ner an aid ition al gr o un ds, I think
22 the trial law yers vould say when a judge says your
23 oh jection is noted, that is the eni of it, and w hen the
24 judge said, your objection for cause is n oted — it
25 didn *t say your cb jection, it said a n ob ject i on for cause
ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 1 is noted — that is all that is necessary, and a lawyer
2 cw's his respect to a court to say nothing, and I think
3 that is what happened here.
4 It is there, and that is my rebuttal and
5 reply.
6 Thank you.
7 CHIEF JUSTICE BURGEE* Thank you, gentlemen.
8 The case is submitted.
9 (Whereupon, at 11 s55 o'clock a.m., the case in
10 the above-entitled, matter w*as submitted.)
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ALDERSON REPORTING COMPANY, INC. 20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300 Alderson Reporting Company, Inc., hereby certifies that the attached pages represents an accurate transcription of electronic sound recording* of the oral argument before the I Supreme Court of The united States in the Matter oft *85-5319 - WILLIE JASPER DARDEN, Petitioner V. LOUIE L. watmwptp.^
SECRETARY/ . FLORIDA DEPARTMENT ott ™PPffCTICIJC
and. that these attached pages constitutes the original transcript of the proceedings for the records of the court. 3T sfc
(HE20RTZR)
) MARSHAL'S
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