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. 21 22 23 24 25 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 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.