Opinion

United States v. Frank Gorham, Jr., United States of America v. Otis D. Wilkerson, A/K/A Robert N. Jones, A/K/A James Burgess

  • 523 F.2d 1088
  • 173 U.S. App. D.C. 139
  • 1975 U.S. App. LEXIS 11741
Court
Court of Appeals for the D.C. Circuit
Filed
Nov 28, 1975
Status
Published
Author
Bazelon
On the bench
Bazelon, MacKinnon, Robb
Cited by
37 cases
Authority
More cited than 25.0%

affirming trial court’s refusal to admit evidence bearing no legal relation to the charges but which might encourage a “conscience 11 verdict” of acquittal

How later courts described this case

  • affirming trial court’s refusal to admit evidence bearing no legal relation to the charges but which might encourage a “conscience 11 verdict” of acquittal
  • “The right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure.”
  • promise of immunity from prosecution given by hostage being mistreated during prison riot
  • “a fact he had come to know through performance of his official duties”

Written by the judges who cited it.

The opinion

BAZELON, Chief Judge

(concurring):

I concur in parts (1) — (7) of the court’s opinion, and in the result of part (8). The issue addressed in part (8) is whether evidence must be admitted when its only relevance is to enable a jury to decide whether to exercise its nullification power. 1 In my opinion, the record in this case is plainly inadequate for deciding that issue.

*1099 Appellant’s entire claim is based on the trial court’s denial of a codefendant’s request that Judge Bryant be subpoenaed to testify. (Tr. 1649) The codefendant made no proffer of evidence, nor did he explain the reasons for requesting the subpoena. The appellants gave no indication that they joined in the request. Most important, none of the defendants objected to the trial judge’s ruling after he explained that he had spoken to Judge Bryant and had been informed by Judge Bryant that his order of October 13 was not intended to bar prosecution.

Since there was neither a proffer nor an objection, the only question properly before us is whether the refusal to grant the subpoena — or admit the evidence— constitutes plain error, “affecting substantial rights.” 2 Since we cannot place the trial court’s decision within that category, I join in affirmance.

. That issue was not decided in United States v. Dougherty, 154 U.S.App.D.C. 76 , 473 F.2d 1113 (1972), which holds only “that a trial judge need not deliver an instruction explaining the process of jury nullification.” (173 U.S.App.D.C. page -, 523 F.2d page 1098, supra)

. Fed.R.Crim.Pro. 52(b); cf. Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946).

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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