UNITED STATES OF AMERICA, PETITIONER V. THOMAS O. ROBINSON, JR. No. 86-937 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Reply Memorandum for the United States In our petition, we contended that the court of appeals' judgment reversing respondent's convictions was flawed in two respects. First, the court of appeals misconstrued this Court's decision in Griffin v. California, 380 U.S. 609 (1965), and it did so in a fashion symptomatic of the wider confusion among the lower federal courts about the scope of the Griffin rule. Second, the court of appeals misapplied the "plain error" doctrine, holding that courts are freer to overlook a failure to object at trial where the error in issue implicates constitutional rights. 1. Respondent does not dispute our argument that the rule in Griffin applies only to comments that ask the jury to treat a defendant's failure to testify as evidence of his guilt. Moreover, respondent expressly declines to address (Br. 9-10) our contention that the lower federal courts have construed the Griffin rule in conflicting ways, many of which lack any basis in the Griffin decision or its progeny. Instead, respondent devotes nearly his entire brief (id. at 1-9) to an argument intended to show that the trial court and prosecutor misinterpreted defense counsel's summation. According to respondent, counsel did not accuse the government of denying respondent a chance to explain himself at trial; rather, according to respondent (id. at 4), counsel simply claimed that respondent had not been given a chance to refute the fraud charges during the pre-indictment investigation. Respondent contends, therefore, that the prosecutor's rebuttal was "utterly gratuitous, inherently unresponsive to the context, and above all a blatant attempt to circumvent one of the most fundamental protections of the United States Constitution" (id. at 6-7). Respondent concludes (id. at 10) that because of the prosecutor's "egregious" remarks there is no reason in this case for the Court to consider "the infinitely more subtle" issues raised in our petition. Respondnet's contention provides the best possible evidence of why the contemporaneous objection rule must be fully applicable to claims of constitutional error. If respondent's attorney intended his summation simply to argue that respondent had not been given a chance to explain himself to the investigators, that point was certainly lost on the trial court. The trial court understood counsel's remarks just as the prosecutor did: as an assertion that respondent had been denied a chance to testify at trial. The trial judge stated explicitly that this was how he understood counsel's argument (Tr. 681). But while defense counsel objected to other rebuttal arguments that the prosecutor proposed to make (id. at 682-683), he made no objection either at trial court's interpretation of his summation or to the court's ruling permitting the prosecutor to respond (Pet. App. 2a). Accordingly, the trial court could only have understood counsel to agree that the court's interpretation of his remarks was correct and that the prosecutor was lawfully entitled to respond. If counsel felt otherwise, he was obligated to say so at the time. /1/ 2. Respondent concedes (Br. 10) that this case presents the question whether the plain error rule applies with equal force to claims of constitutional error. Respondent contends (id. at 10-12), however, that this is not an appropriate case in which to resolve the conflict among the circuits on that question. In respondent's view, there was no reason in this case for "(t)he merely technical and inadvertent lack of specific objection by defense counsel" (id. at 12) since "(t)he District Judge was obviously made fully aware of the issue" and ruled on it "without asking for argument from defense counsel" (id. at 11). But the trial court plainly did not appreciate what respondent now advances as the true meaning of his attorney's summation. Had counsel provided that explanation when the issue was first raised, the trial court may well have ruled differently. In any event, the court would have had an opportunity to consider respondent's explanation before the prosecutor gave his summation and the jury rendered its verdict. Respondent's post hoc reconstruction of his attorney's summation is a perfect illustration of why the contemporaneous objection rule must be applied with equal force to all objections at trial, constitutional or otherwise. For the foregoing reasons and those stated in our petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Solicitor General FEBRUARY 1987 /1/ Respondent claims (Br. 7-9) that the court of appeals shared his view that the trial judge and prosecutor misconstrued the import of defense counsel's summation. There is no basis in the court's opinion for that claim. To the contrary, the court of appeals acknowledged (Pet. App. 7a) that counsel "reiterated repeatedly" that respondent had not been given a "'chance to explain'" and concluded (ibid.) that these remarks and others by defense counsel "were wrong." The court of appeals reversed not because it believed that the prosecutor misunderstood defense counsel's remarks but because it determined that, regardless of the purpose or context of the prosecutor's rebuttal, the rule in Griffin precludes any reference to a defendant's failure to testify at trial.