Edward Morgan MacKenna v. O. B. Ellis, Director, Texas Department of Corrections

CAMERON, Circuit Judge

(dissenting).

In seeking to formulate a dissent to the exhaustive opinion filed by the majori'cy, I think it appropriate to quote from a Supreme Court opinion an epitome of the spirit in which a federal judge should approach the consideration of a case which may result in setting aside a State court decision in a criminal case:

“ * * * in reviewing a State criminal conviction under a claim of right guaranteed by the Due Process Clause of the Fourteenth Amendment, from which is derived the most far-reaching and most frequent federal basis of challenging State criminal justice, ‘we must be deeply mindful of the responsibilities of the States for the enforcement of criminal laws, and exercise with due humility our merely negative function in subjecting convictions from state courts to the very narrow scrutiny which the Due Process Clause of the Fourteenth Amendment authorizes.’ Malinski v. New York, 324 U.S. 401, 412, 418 [ 65 S.Ct. 781 , 89 L.Ed. 1029 ]. Due process of law, ‘itself a historical product,’ Jackman v. Rosenbaum Co., 260 U.S. 22, 31 , 43 S.Ct. 9 , 67 L.Ed. 107 , is not to be turned into a destructive dogma against the States in the administration of their systems of criminal justice.” Rochin v. California, 1951, 342 U.S. 165, 168 , 72 S.Ct. 205, 207 , 96 L.Ed. 183 .

And in Darr v. Burford, 1950, 339 U.S. 200, 218 , 70 S.Ct. 587, 597 , 94 L.Ed. 761 , this general test was laid down:

“ * * * A conviction after public trial in a state court by verdict or plea of guilty places the burden on the accused to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court’s intervention to protect the rights of the accused.”

The majority here looses the long insensate arm of the federal government and empowers it to filch from the hands of the official of a sovereign State the key to the jail house and to set free one who was duly and legally convicted of violating the laws, not of the nation, but of the State of Texas. This extreme action, as I see it, is not justified by the facts before the Court, or by any authority cited'. Two cases by federal courts are relied upon by the majority. The first in Ader-hold, Warden v. O’Neill, 1933, 66 F.2d 85 . O’Neill was a federal prisoner and this Court held that he had served all but seventy-four days of a void fourteen months sentence. 1

The other federal case is Reid v. Sanford, Warden, D.C.N.D.Ga.1941, 42 F.Supp. 300, 304 , in which Judge Underwood ordered a federal prisoner discharged where he found that the conviction was of doubtful validity and that he had “already served about all that would' be required on a valid thirty-year sentence.”

With such scant supporting authority, the action ordered by the majority here, in my opinion, sets a dangerous precedent, and the reasoning by which its conclusion is reached deserves to be carefully tested.

I.

When this case was before this Court before Judge [then Chief] Hutcheson wrote a very able dissent 2 with which *606 I am in full agreement. Both of the points now developed in great detail were answered in that dissent. For convenience, I quote a portion of the dissent found on page 46:

“The second point, made by the majority, is no better taken. This is that the denial of his motion for continuance because of its failure to comply with the provisions of Art. 543 of the Texas Code of Criminal Procedure was a denial of due process. Here the majority, without pointing to any authority supporting the view, seems to think and say that the fourteenth amendment prevents or circumscribes the right of the Legislature of Texas to prescribe and of Texas courts to follow the prescribed procedure in criminal cases, and that it may be held that defendant has been deprived of due process when state procedure with regard to the requirements for motion for continuance does not conform to what the majority thinks due process requires.

“Again, with deference but with complete conviction, I assert the law is absolutely settled otherwise, * *

“One of the prime provisions of the Texas statute is that when a continuance is sought for absence of witnesses, the facts which are expected to be proved by the witnesses must be shown ‘and it must appear to the court that they are material.’ •fc * *

“Under the facts of this case, to send it back to the district judge to try the issues presented is, I think, a complete rejection of the basic principle that a state, in matters in its own sphere, is sovereign, and that it is not subject to the supervision and control of federal courts.”

The majority in the present opinion concedes that the provisions of Art. 543 were not complied with and that those provisions are valid and enforceable. But it does not, in my judgment, follow what it concedes.

II.

The chief discussion by the majority opinion of both of the points sent back by the former decision for trial has as its major thesis that appellant did not want to be represented by attorneys and so told the court, that the court forced attorneys upon him 3 and provided him with attorneys who were inexperienced, incompetent, and who were so beholden to the prosecuting attorneys for the State of Texas that they did not, because they could not, properly look after the interests of the man they were appointed to defend. This major premise is not, in my opinion, sustained by the record.

(a) To begin with, this whole contention was abandoned by the attorney who represented MacKenna before the court below. 4 After all of the testimony was in and the question of arguments was being discussed, the following colloquy took place:

“The Court: In obedience to the opinion of the Court of Appeals rendered January 16, 1959 that I would conduct a hearing, which has been done, to resolve two questions _* * *

“The Court of Appeals says, ‘The remaining two grounds which have more substance are: (3) That the trial court forces [sic] the appellant, over his objections, to accept repre *607 sentation of counsel appointed by the Court.’

“I understand that the petitioner is abandoning that one.

“Mr. Golding: I think so, Judge. I frankly and candidly don’t think that the review of the decision in my mind doesn’t place as much emphasis — ”

Near the end of the colloquy the same idea was repeated:

“Mr. Golding: I frankly admit to the Court, and that is only one issue in this case and that is whether or not—

“The Court: Whether he had ample opportunity to have his witnesses present.

“Mr. Golding: Whether or not the refusal to grant the continuance, if such was made, constituted a deprivation of due process.”

The majority ignores this narrowing of the issues altogether. But I think it is of great importance and that this experienced and capable attorney, having examined the appellant and subjected his two court-appointed attorneys to a vigorous cross-examination, was convinced that this point was without merit and that the question of the continuance was the only issue remaining in the case.

(b) The court below found the facts under this point squarely against the appellant. The judge was a Texan, familiar with Texas lawyers, Texas practice and Texas judges and, having observed the witnesses as they testified before him in open court, made specific findings, as set out in the margin. 5

Without question, MacKenna acquiesced in the appointment of the lawyers, giving them, according to his testimony, the names of witnesses, discussing with them whether he should take the stand, and generally consulting with them at least as his advisors — see Gray v. Ellis, supra. The point is, in my opinion, wholly without merit.

III.

The other question presented, which the experienced counsel representing MacKenna in the lower court thought was the only question involved, was whether appellant’s rights under the Fourteenth Amendment were violated by the Texas trial judge (apparently deceased when the case was heard by the court below) in his ruling on the so-called motion for continuance. The majority holds that appellant’s constitutional rights were violated chiefly on the ground that one of the numerous bills of exceptions prepared by MacKenna recited that a motion for continuance was made and denied. I do not understand that the majority feels that the recital of this bill of exceptions is final and conclusive, because the opinion frankly admits that the motion mentioned in the bill of exceptions did not comply with valid Texas procedural statutes. The majority further concedes that the court below found the facts on this point against appellant.

It is important to recall that the experienced trial attorney representing MacKenna in the court below manifestly did not consider the recitals of the bill of exceptions final or important. He placed MacKenna on the stand and promptly had him testify to the details of what transpired in the handling of what he called a motion for continuance.

According to MaeKenna’s testimony, Messrs. Collier and Tucker had been appointed to represent him on Friday, September 28th. The three had a con *608 ference and he gave the attorneys a list of witnesses. On the morning of the date set for the trial, October 2, 1956, MacKenna stated to the judge that his lawyers had not yet obtained his witnesses and “I asked him for a continuance * * * I asked him to give me at least one day, at least twenty-four hours and I could probably get the witnesses by telephone * * * He told me to let my attorneys handle it.”

The appointed lawyers testified that they also mentioned passing the case to the judge, although it was their understanding that the witnesses whose names were given them by MacKenna were character witnesses; and that it was their judgment, expressed to MacKenna, that it would be unwise to place any such witnesses on the stand since the fact of the seven former convictions of appellant would be brought before the jury.

At all events, it is conceded that no motion for a continuance as required by Texas law was ever made, and the action of the Texas trial judge upon which appellant predicates his claim of denial of constitutional rights is the judge’s failure to grant the motion for continuance which he, himself, had made orally. It is plain, therefore, that there was no denial of constitutional rights under appellant’s own testimony. The court heard all of the testimony of MacKenna and of the lawyers and found that Mac-Kenna had not made out the case stated in his petition. 6

It is further clear that the witnesses brought forward in appellant’s motion in the court below for a rehearing of the petition for habeas corpus would not have given testimony which would have changed the result. The appellant testified categorically that he was in fact at the fair grounds and that he there obtained the camera in question from a man he had come to know in the prison. The date was never made certain, but he fixed it somewhere between October 13th and October 18th, 1955. The main complaint of appellant is that the witnesses whom the two lawyers failed to have present would have testified that he had not been at the fair grounds at or about that time. 7

Surely the majority opinion fails to demonstrate the likelihood that any attorney would have made any effort to get character witnesses until after MacKen-na had, over the attorneys’ objection, *609 taken the stand as a witness, the attorneys so testified. One of

Boiled down, therefore, these conclusions from the testimony are patent: (1) no motion for a delay or continuance was made in writing or in conformity with Texas law, the motion mentioned in the bills of exception obviously being that mentioned in (2) infra; (2) the oral motion which MacKenna made, evidently in the absence of his counsel, was not denied, but the court merely suggested that the matter be handled by the attorneys; (3) the alibi witnesses whose statements were produced on motion for rehearing would not have helped appellant, because he admitted that he did get the camera at the fair grounds and because he was unable to fix any dates, and the witnesses whose statements were proffered were unable to recall any specific dates; (4) no adequate showing is reflected in the record that any person would have testified to his good character, and it is further manifest that, if they had attempted to do so, they would have been met with questions concerning his seven prior convictions of crime.

Under these circumstances we cannot, in my opinion, justify a holding that the findings of the court below were clearly erroneous, and certainly are not justified in holding that the handling of the so-called motion for continuance amounted to denial of due process of law.

Under well' settled principles of law, the question of a continuance, even if legally raised, would have been one addressed to the discretion of the trial court: “That the action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question [citing five Supreme Court cases].” Isaacs v. United States, 1895, 159 U.S. 487, 489 , 16 S.Ct. 51, 52 , 40 L.Ed. 229 . And see also Hardy v. United States, 1902, 186 U.S. 224 , 22 S.Ct. 889 , 46 L.Ed. 1137 ; and Avery v. Alabama, 1940, 308 U.S. 444, 446 , 60 S.Ct. 321 , 84 L.Ed. 377 .

IV.

Reference in the majority opinion to the report of the Conference of Chief Justices at Pasadena, California, August, 1958, and to the other articles listed in Note 9 of the majority opinion indicates that it shares with me the feeling that the handling of habeas corpus by federal courts has been a prime factor in reducing to a low point the esteem in which they are held. Hardly a newspaper can be picked up which does not carry headlines about some revolting crime having been committed by an ex-convict. That group, it seems to me, is copiously replenished by the unwarranted intervention of federal courts into the police power of the States.

This case, it seems to me, furnishes a typical example. The opinion reflects upon the integrity and competence of Texas judges and law enforcement officers ; , upon the honesty and professional ability of two young lawyers who were commissioned by the court to represent this unfortunate appellant; upon the capacity of the court below to weigh evidence given before him in person and to find the facts as that evidence reflects them. And what is it which the majority finds so convincing as to impel it to so extreme a holding ? Essentially, the monstrous tale of a highly educated man seven times convicted of violating society’s laws. It is not hard to understand the natural feeling of sympathy such an unfortunate individual arouses. But we, as judges, are not permitted the luxury of allowing our judgment to be swayed by excess of sentimentality. Ours is the duty always to hold the balance true between the constitutional rights of the individual and the protection to which society is entitled. 8

*610 Being convinced that the facts of this case do not justify the action ordered by the majority, and that precious Federal-State relationships are injured by the failure of Federal Judges to exercise restraint in such matters, I respectfully dissent.

. As authority for the discharge we cited only the case of In re Bonner, 151 U.S. 242 , 14 S.Ct. 323 , 38 L.Ed. 149 . The discharge in that case was from the wrong penitentiary so that the prisoner might be turned over to the custodian of the proper penitentiary.

. MacKenna v. Ellis, 1959, 263 F.2d beginning on page 44.

. We approved such a practice in Gray v. Ellis, 1958, 257 F.2d 159 .

. Appellant was represented in that hearing by Bernard A. Golding, Esquire, of the Houston, Texas bar. Examination of Martindale-Hubbell Law Directory shows that he was admitted to the bar of Texas in 1927. The fact that he was and is an experienced and successful practitioner is attested by the many important cases which have been argued before this Court and the Supreme Court o'f the United States, e.g., Indiviglio et al. v. United States, 5 Cir., 1957, 249 F.2d 549, 551 , reversed by the Supreme Court, 1958, 357 U.S. 574 , 78 S.Ct. 1381 , 2 L.Ed.2d 1547 .

. “The evidence is that before these lawyers were .appointed that MacKenna beckoned to them and they went over and talked to him in the courtroom in Dallas County, that later the same morning they were appointed to represent him. It is the testimony of the lawyers that he did not protest, that he made no objection to their appointment. The testimony of the lawyers is that they did confer with him, they advised with him, and at least some of their advice he did not accept, which of course he was under no obligation to accept. I would resolve that issue and find that the two lawyers in question, Collier and Tucker, were not appointed over his objection.”

. “What the petitioner is asking for here is for me to set aside the ruling and judgment of the state court, which was appealed and affirmed. It is my opinion that judgment of the state court should not be set aside lightly. It should only be done for serious reasons, based upon serious grounds, grounds well established. I do not think that such proof has been made in this case. For the petitioner we have testifying the petitioner only. For the state we have two young lawyers of the state bar. * * *

“In this case the witness, MacKenna, has a considerable interest. I cannot say myself that the strong claims that he makes at this time were existent at the time of the trial, the time of which he is complaining. The two attorneys who testified — and let it be noted that the rule was invoked, that they were both excused from the courtroom and neither heard the testimony of the other — each testified that there was no motion for continuance. * * * ”

. Probably the most important witness under appellant’s contention was his former wife whose deposition was taken and who made the following statement:

“Interrogatory No. 11. From your personal knowledge of the charge against Edward Morgan MacKenna, you could and would have offered testimony in his behalf, showing his whereabouts and other facts concerning the date of the alleged theft, October 18, 1955?

“Answer to Interrogatory No. 11: I do not recall his whereabouts on that day.

“Interrogatory No. 12. Testimony showing that during October, 1955, on every afternoon about 4:30 P.M., you drove to 2218 North Harwood Street, Dallas, his place of employment, picked up MacKenna, drove him home and spent the evening with him?

“Answer to Interrogatory No. 12: I did not.

“Interrogatory No. 13. And, to your best recollection and muraory, this specifically included the afternoon and evening of October 18, 1955?

“Answer to Interrogatory No. 13. I do not recall.”

. Ad illustration of the extent to which people generally are aroused by the feeling that the courts are not maintaining that balance, but are coddling criminals and neglecting society’s vital interests may be found in the remarks *610 of Senator Byrd of Virginia appearing in the Congressional Record of April 25, 1960 at page 8023:

“Mr. President, the chief justices of State supreme courts, in their conference held in Pasadena, Calif., in August, 1958, found that the * * * Supreme Court ‘does not seem to have given any consideration whatsoever to the risks to society which might result from the release of a prisoner of this type.’

“The State chief justices were referring specifically to the case of Moore v. Michigan ( 355 U.S. 155 [ 78 S.Ct. 191 , 2 L.Ed.2d 167 ]). But for all intents and purposes, the statement is equally applicable to the Andrew Mallory case which the * * * Court decided on June 24, 1957.

“In this Mallory case the * * * Court seized upon what it chose to regard as a technical flaw in traditionally accepted police practice to turn loose a confessed and convicted rapist to prey again on innocent women,

“Andrew Mallory was arrested again in January 1958, little more than 6 months after he was freed, on charges of housebreaking and assault on the daughter of a woman who had befriended him.

“He was convicted on the assault charge April 4, 1958. Now he is indicted again in Philadelphia for rape and burglary.

“Certainly, the courts of this Nation must protect the rights and liberties of all of the people — but this means protection of innocent people, too. Here we have another example of the pattern of * * * Supreme Court decisions which has undermined the confidence of the American people in the Federal judiciary.

“The effect of the * * * Supreme Court decision in the original Andrew Mallory case was to hold that the police — not the rapist — had violated the law.”

Another quotation from the extension of remarks of Senator Byrd appears at page A3746 of the issue of the Congressional Record — Appendix, May 3, 1960:

“ ‘Some of us believe that enough has been done for those who murder and rape and rob,’ said Senator Ervin, ‘and that it is time to do something for those who do not wish to be murdered or raped, or robbed.’ ”