Steel Notes Magazine September 2016 - Page 31 Steel Notes Magazine • Rudolph Weber, owner of house where Tex, Linda, Katie and Susan stopped to hose off the blood from the Labianca house • Sergeant Gutierrez PD first officer on the scene at the Tate home • Dr. Thomas T. Noguchi, Los Angeles County Coroner • Dr. Katsuyama deputy medical examiner for the Coroner’s Office Without a doubt, the most damning prosecution witness was Linda Kasabian, a former “Family” member who was granted immunity in return for her testimony. Over protests by the defense, who held that Kasabian’s use of LSD and other drugs had made her incapable of distinguishing fact from fantasy, she described sex orgies, drug use, and Manson’s domination of all facets of “Family” life. To some judges, however, the procedure cannot be justified. It “results in serious impairment of the rights of the accused to a fair consideration by an impartial jury of the competent evidence produced against him.” It is a “fiction” and a “naive assumption” about the way juries can function. The rule calls upon the jury to perform “mental gymnastics” which is beyond not only their powers, but anybody else’s.” Involuntary Confessions: The Allocation of Responsibility between Judge and Jury. Writing for the four dissenters in Delli Paoli v. United States, Justice Frankfurter stated: “The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a non-admissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell. ... The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.” To these critics, the rule is not basic to our jury system and is not needed to preserve the system. Instead it is a rule that perverts the jury trial since it calls upon ordinary lay people to obey an instruction that every judge realizes cannot be obeyed. It fosters what one scholar refers to as our “inconsistent attitude” toward juries. We treat them “at times as a group of low-grade morons and at other times as men endowed with a superhuman ability to control their emotions and intellects.” Whether or not these criticisms of the present rule require its abrogation, a question we consider later herein, they clearly foreclose any assumption that error in admitting a confession that implicates both defendants is rendered harmless to the non-confessing defendant by an instruction that it should not be considered against him. At best, the rule permitting joint trials in such cases is a compromise between the policies in favor of joint trials and the policies underlying the exclusion of hearsay declarations against one who did not make them. “It is difficult, if not impossible, to prove that a confession which a jury has found to be involuntary has nevertheless influenced the verdict or that its finding of voluntariness, if this is the course it took, was affected by other evidence showing the confession was true.” “The girls tried to really tell how it all came down, but nobody would listen. People couldn’t believe anything Steel Notes Magazine 31