despite failure tc allege prejudice, judgment vacated and remanded for determination of prejudice because of unrecorded summations
How later courts described this case
- despite failure tc allege prejudice, judgment vacated and remanded for determination of prejudice because of unrecorded summations
Written by the judges who cited it.
The opinion
POPE, Circuit Judge
(concurring).
I concur fully in Judge BROWNING’S opinion.
When, as here, there has been a complete disregard of a positive statutory command to record closing arguments, I find myself in a predicament. I do not want to order a new trial merely for want of this recording, in the absence of some proof of prejudice. And still, I know that if, in fact, government counsel made the kind of argument dealt with in Ginsberg v. United States, 5 Cir., 257 F.2d 950, 955 , 70 A.L.R.2d 548 , or in Wagner v. United States, 5 Cir., 263 F.2d 877, 884 , I would seriously consider reversal for “plain error”, whether objection was or was not made at the time. Compare Viereck v. United States, 318 U.S. 236, 248 , 63 S.Ct. 561 , 87 L.Ed. 734 .
That any such thing happened is extremely unlikely, but it is not impossible, as the cases cited show. Perhaps the chances are only one in ten thousand, but since I believe that never, if we can possibly avoid it, should any man stand convicted where plain error occurs, I think we have taken here the only step that *297 will make certain that appellant is assured a fair trial.