Portuondo, Leonard, Superintendent of Fishkill Correctional Facility v. Agard, Ray (03/06/2000)

By: Gregory Turk, Medill News Service

Questions presented

Did the 2nd Circuit Court of Appeals err in extending the Supreme Court's decision in Griffin v. California, which prohibited prosecutors from commenting on a defendant's right to remain silent, to prosecutors commenting on a defendant's presence in the courtroom during the testimony of other witnesses?

Brief

""Taking the fifth,"" as it is known in common jargon, has found its way into the plots of thousands of books, movies and television. The right refers to the guarantee in the Bill of Rights that no person ""shall be compelledÉto be a witness against himself.""

But this right did not have full constitutional protection until 1965, when the Supreme Court ruled, in Griffin v. California, that a prosecutor claimed a defendant's refusal to take the stand was a de facto admission of guilt.

The Supreme Court ruled this statement compromised the defendants right to a fair trial.

Nearly 35 years later, the Supreme Court found itself ruling on a similar question in the case of Ray Agard.

Supreme Court review in Agard originated from statements made by a state prosecutor during the trial of Ray Agard, who was sentenced to a maximum of 20 years in prison in 1991 after being convicted on charges of first degree sodomy and illegal possession of a weapon.

During trial, the prosecutor alleged that Agard had tailored his testimony to fit evidence that he heard from witnesses through the course of the trial.

""He gets to sit here and listen to the testimony of all the other witnesses before he testifies,"" the prosecutor said during closing summation. ""That gives [him] a big advantage, doesn't it?""

The defense objected to the statement, saying that it violated Agard's 6th Amendment right to confront witnesses. After trial, Agard appealed, exhausting his remedies in state court.

In 1996, a federal court denied habeas relief, but in October 1997, a divided 2nd Circuit Court of Appeals reversed the sodomy conviction and remanded the case to the district court with directions to order Agard's release after he served his sentence on the weapons possession conviction. Agard, who had already served the entirety of the weapons charge sentence, was freed on bond.

The prosecution appealed the decision on claims that a new constitutional standard had been created in ruling on the case that was unfairly applied retroactively.

In a rare move, the appeals panel took up state's petition for a rehearing and reviewed the case a second time. While upholding its previous ruling in another 2-to-1 decision, the court narrowed its reasoning supporting it. The court denied creating a ""new rule"" and maintained that no constitutional issue was at stake.

The majority ""retreats from any language in our prior opinions suggesting that it is constitutional error for a prosecutor to make a factual argument that a defendant used his familiarity with the testimony of the prosecution witnesses to tailor his own exculpatory testimony,"" wrote Chief Judge Ralph K. Winter in his opinion.

Winter continued, saying prosecutorial remarks should stay with the facts of the case at hand, ""rather than focusing solely on (a defendant's) presence in the courtroom.""

Appeals Judge Ellsworth A. Van Graafeiland dissented a second time. He disputed the majority assertion that the prosecutor presented only ""a generic argument."" He felt the prosecutor referred directly to Agard and not to defendants in general.

Van Graafeiland said he felt there was ""overwhelming evidence"" at the original trial that ""was legally sufficient to establish the defendant's guilt beyond a reasonable doubt."" As a result, a retrial was unnecessary, he argued.

Van Graafeiland said he believed there was little similarity between comments made by the prosecutor in Agard and those at issue in Griffin v. California. In Griffin, Van Graafeiland argued, the tactics of the prosecutors were ""a remnant of the 'inquisitorial system of criminal justice.'"" In the current case, it was not a matter of taking away a right, he said, but rather enforcing a defendant's ""duty"" to attend trial. ""Where, as here, a defendant is required by law to be present in court while all the witnesses testify, I can discern no prejudicial constitutional error in a prosecutor's reference to the so-called Ôbenefits inherent in such requirement,"" Van Graafeiland wrote.

The U.S. Supreme Court granted certiorari on March 22, 1999, and allowed Agard to proceed in forma pauperis.

On March 6, 2000, the Court reversed, holding that prosecutors may tell jurors in closing argument that the defendant's presence at trial allows the defendant to tailor his testimony to fit the evidence.

""We see no reason to depart from the practice of treating testifying defendants the same as other witnesses,"" wrote Justice Antonin Scalia for the 7-2 majority. A witnesss ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening.""

In dissent, Justice Ruth Bader Ginsburg wrote for herself and Justice David Souter that the majority's holding ""transforms a defendant's presence at trial from a 6th Amendment right into an automatic burden on his credibility.""