570 F. 2d 21 - Dunn v. I Perrin Black

Petitioners, convicted of separate crimes in two state trials, sought habeas corpus and appeal the district court's denials of the writ. While different juries heard petitioners' trials, the instructions on reasonable doubt were virtually identical. We reproduce in the margin the instructions as given in Dunn's case.1 The New Hampshire Supreme Court concluded, in both cases, that the charge as a whole conveyed the correct concept of reasonable doubt. State v. Black, 116 N.H. 836, 837, 368 A.2d 1177 (1976); State v. Belkner, et al., N.H., 374 A.2d 938 (1977). The district court also found no constitutional error when it read the charge as a whole.

We are compelled to disagree. We are fully aware that the charge in each case, apart from its definition of reasonable doubt, is replete with reminders that every element of the crime charged must be proven beyond a reasonable doubt. But the passage defining that critical concept contained no fewer than three different misstatements, ranging from the dubious to the patently erroneous. With this linchpin so weakened, we cannot label the errors harmless beyond a reasonable doubt.

Reasonable doubt is at best a difficult concept to explain to a lay jury. It is also a concept informed by an abundance of precedent. It is not surprising that appellate courts have repeatedly cautioned that attempts to explain reasonable doubt seldom clarify the concept and may flirt with an impermissible reduction of the prosecution's burden of proof. See Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1880); United States v. MacDonald, 455 F.2d 1259, 1263 (1st Cir. 1972). Nevertheless, the court in these two cases obviously felt that a variety of approaches might clarify the concept.

The first formulation was to explain reasonable doubt as "doubt as for the existence of which a reasonable person can give or suggest a good and sufficient reason." Similar qualifications have received judicial criticism. See id. at 1263 (jury must find an "intelligent reason"); United States v. Christy, 444 F.2d 448, 450 (6th Cir. 1971) (proof must leave the jury with no "reasonable, substantial doubt"). While standing alone, this portion of the charge might not be reversible error, United States v. MacDonald, supra, we think it was improper. It suggested that a doubt based on reason2 was not enough to acquit, implicitly putting petitioners to the task of proving that the reason was "good and sufficient". See Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972) (per curiam).

What immediately followed this questionable definition of reasonable doubt was clearly wrong. The court spoke in these words:

"It (reasonable doubt) does not mean a trivial or a frivolous or a fanciful doubt nor one which can be readily or easily explained away, but rather such a strong and abiding conviction as still remains after careful consideration of all the facts and arguments . . . ."

In United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971), we condemned virtually that exact wording. Although the existence of other reversible error in Flannery made it unnecessary for us to resolve the constitutional implications of such a charge, we do so now. That definition of reasonable doubt was the exact inverse of what it should have been. See United States v. Magnano, 543 F.2d 431, 436 (2d Cir. 1976); Bernstein v. United States, 234 F.2d 475, 486 n. 8 (5th Cir. 1956). Instead of requiring the government to prove guilt, it called upon petitioners to establish doubt in the jurors' minds.3 That is an inescapable violation of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1969).

The court, continuing in its efforts to clarify, added:

"It is a matter of common knowledge to us all that absolute positive certainty in regard to many of the affairs of life can almost never be attained, and even in our most important matters, we frequently act upon information which we do not positively know to be absolutely true and which we have no means of verifying, but as to the truth of which we are morally certain. In such instances, there is no reasonable doubt."

Authorities differ on the advisability of equating proof beyond a reasonable doubt with establishment of guilt to a moral certainty. See United States v. Magnano, supra, 543 F.2d at 437; United States v. Byrd, 352 F.2d 570, 575 (2d Cir. 1956). We need not take sides in that controversy, however, for proof to either degree based on admissible evidence and proper inferences is far different from what was authorized here. This charge permitted the jury to convict or acquit on the basis of information incapable of verification. Yet the essence of the reasonable doubt standard is that guilt be established not on speculation or intuition, but on evidence and the inferences permitted by law. See Miles v. United States, supra, 103 U.S. at 309, 26 L.Ed. 481; United States v. Guglielmini, 384 F.2d 602, 607 (2d Cir. 1967).4

Finally, petitioners challenge that portion of the charge which defined reasonable doubt as that which would cause the jurors "to refrain from acting in regard to some transaction of importance and seriousness . . . ." That phrase has two elements: reference to refraining from action (as opposed to something like "to be willing to act") and comparison of the decision on guilt or innocence with an important transaction in ordinary life. Addressing the second first, we note that comparison of reasonable doubt in criminal cases with the standard employed by jurors to make even the most significant decisions in their daily lives has been criticized for its tendency to trivialize the constitutionally required burden of proof. See Scurry v. United States, 120 U.S.App.D.C. 374, 376, 347 F.2d 468, 470 (1965); Commonwealth v. Ferreira, Mass., 364 N.E.2d 1264 (1977).5 By contrast the "refrain from acting" portion of the charge given here has received widespread approval among the circuits.6 See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Robinson, 546 F.2d 309, 313 (9th Cir. 1976); United States v. Leaphart, 513 F.2d 747, 750 (10th Cir. 1975); United States v. Dixon, 507 F.2d 683, 684 (8th Cir. 1974); United States v. Richardson, 504 F.2d 357, 361 (5th Cir. 1974); United States v. Restaino, 369 F.2d 544, 546 (3d Cir. 1966). We find no constitutional infirmity in the combined effect of these two components.

What remains to be resolved is whether those portions of the charge we have found to be erroneous warrant relief by habeas corpus. After In re Winship, supra, 397 U.S. at 364, 90 S.Ct. 1068, it is obvious the errors are of constitutional magnitude.7 As the Supreme Court noted, the right to proof beyond a reasonable doubt is indispensable for a criminal defendant. Id. at 364, 90 S.Ct. 1068. Discussion of the concept is perhaps the most important aspect of the closing instruction to the jury in a criminal trial. Commonwealth v. Ferreira, supra, Mass., 364 N.E.2d 264 (1977).

Here reasonable doubt was improperly defined three times. This is thus not a technical error appearing in "artificial isolation", Cupp v. Naughten,414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), or one that was cured by an otherwise proper charge. See United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1974). The cumulative effect of the three errors was to obfuscate one of the "essentials of due process and fair treatment". In re Winship, supra, 397 U.S. at 359, 90 S.Ct. at 1070. Although the evidence against both petitioners was substantial, it could not be said to have been overwhelming. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1968). Thus a distinct possibility existed that the jury was misled by the charge. See Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880, 92 L.Ed. 1055 (1947).

In Chapman v. California, 386 U.S. 18, 20, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966), the Supreme Court indicated that some constitutional errors may be so substantial that they can never be harmless. We leave to another day the question of whether this was such an error. Under the circumstances presented here, a finding of harmlessness beyond a reasonable doubt is not permitted us.

The judgment of the district court is reversed. The writ of habeas corpus shall issue unless, within 90 days from the date of this opinion, the state has either reinstituted proceedings to retry the petitioners or applied for a writ of certiorari. If certiorari is sought and granted, issuance of the writ of habeas corpus shall be stayed pending further order of the Supreme Court. If certiorari is sought and denied, the writ of habeas corpus shall issue unless the state has initiated retrial of the petitioners within 30 days after the date certiorari is denied. Petitioner Black shall remain on bail until such time as retrial is commenced, unless the Supreme Court otherwise orders.

So ordered.