U.S. Supreme Court BERGER v. UNITED STATES, 295 U.S. 78 (1935)

[Page 295 U.S. 78, 89]

the other defendants, we think may properly be characterized as weak- depending, as it did, upon the testimony of Katz, an accomplice with a long criminal record.

In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its nonexistence. If the case against Berger had been strong, or, as some courts have said, the evidence of his guilt 'overwhelming,' a different conclusion might be reached. Compare Fitter v. United States (C.C.A.) 258 F. 567, 573; Johnson v. United States (C.C.A.) 215 F. 679, 685, L.R.A. 1915A, 862; People v. Malkin, 250 N.Y. 185, 201, 202, 164 N.E. 900; State of Iowa v. Roscum, 119 Iowa, 330, 333, 93 N.W. 295. Moreover, we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential. A new trial must be awarded. Compare N.Y. Central R.R. Co. v. Johnson, , 316-318, 49 S.Ct. 300.

The views we have expressed find support in many decisions, among which the following are good examples: People v. Malkin, supra; People v. Esposito, 224 N.Y. 370, 375-377, 121 N.E. 344; Johnson v. United States, supra; Cook v. Commonwealth, 86 Ky. 663, 665-667, 7 S.W. 155; Gale v. People, 26 Mich. 157; People v. Wells, 100 Cal. 459, 34 P. 1078. The case last cited is especially apposite.

Judgment reversed. Footnotes

[Footnote *] The defendant (petitioner) was on the stand; cross-examination by the United States attorney:'Q. The man who didn't have his pants on and was running around the apartment, he wasn't there? A. No, Mr. Singer. Mr. Godby told me about this, he told me, as long as you ask me about it, if you want it, I will tell you, he told me 'If you give this man's name out, I will give you the works.''Q. Give me the works? A. No, Mr. Godby told me that.'Q. You are going to give me the works? A. Mr. Singer, you are a gentleman, I have got nothing against you. You are doing your duty.'Mr. Wegman: You are not going to give Mr. Singer the works. Apparently Mr. Singer misunderstood you. Who made that statement?'The Witness: Mr. Godby says that.'Q. Wait a minute. Are you going to give me the works? A. Mr. Singer, you are absolutely a gentleman, in my opinion, you are doing your duty here. 'Q. Thank you very much. But I am only asking you are you going to give me the works? A. I do not give anybody such things, I never said it.'Q. All right. Then do not make the statement.'Mr. Wegman: The witness said that Mr. Godby said that.'The Court: The jury heard what was said. It is not for you or me to interpret the testimony.'Q. I asked you whether the man who was running around this apartment ..., was he there in the Secret Service office on the morning that you were arrested? A. I didn't see him.'Q. I wasn't in that apartment, was I? A. No, Mr. Singer.'Q. I didn't pull the gun on you and stick you up against the wall? A. No.'Q. I wasn't up in this apartment at any time, as far as you know, was I? A. As far as I know, you weren't. 'Q. You might have an idea that I may have been there? A. No, I should say not.'Q. I just want to get that part of it straight. ...'Q. Was I in that apartment that night? A. No, but Mr. Godby-'Q. Was Mr. Godby in that apartment? A. No, but he has been there . ...'Q. Do you include as those who may have been there the Court and all the jurymen and your own counsel? A. Mr. Singer, you ask me a question. May I answer it?'Mr. Wegman: I object to the question.'The Witness: Are you serious about that?'The Court: I am not going to stop him because the question includes the Court. I will let him answer it.'Mr. Singer: I would like to have an answer to it.'The Witness: Mr. Singer, you asked me the question before-'The Court: You answer this question. (Question repeated by the reporter.) A. I should say not; that is ridiculous. ...'Q. Now Mr. Berger, do you remember yesterday when the court recessed for a few minutes and you saw me out in the hall; do you remember that? A. I do, Mr. Singer.'Q. You talked to me out in the hall? A. I talked to you?'Q. Yes. A. No. 'Q. You say you didn't say to me out in the hall yesterday, 'You wait until I take the stand and I will take care of you'? You didn't say that yesterday? A. No; I didn't, Mr. Singer; you are lying.'Q. I am lying, you are right. You didn't say that at all? A. No.'Q. You didn't speak to me out in the hall? A. I never did speak to you outside since this case started, except the day I was in your office, when you questioned me.'Q. I said yesterday. A. No, Mr. Singer.'Q. Do you mean that seriously? A. I said no.'Q. That never happened? A. No, Mr. Singer, it did not.'Q. You did not say that to me? A. I did not.'Q. Of course, I have just made that up? A. What do you want me to answer you?'Q. I want you to tell me I am lying, is that so? ...

(No effort was later made to prove that any such statement had ever been made.) ...'Q. Did she say she was going to meet me for anything except business purposes? A. No.'Q. If she was to meet me? A. Just told me that you gave her your home telephone number and told her to call you up after nine o'clock in the evening if she found out anything about the case that you could help me with, that is what she told me.'Q. Even if that is so, what is wrong about that, that you have been squawking about all morning.'