Opinion

Willie Frank Brown v. United States

  • 314 F.2d 293
  • 1963 U.S. App. LEXIS 6108
Court
Court of Appeals for the Ninth Circuit
Filed
Feb 18, 1963
Status
Published
Author
Pope
On the bench
Duniway, Pope, Browning
Cited by
28 cases
Authority
More cited than 24.7%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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