Franklin v. State

Conley Byrd, Justice, dissenting. The facts in this case remind me of the old adage that you can lead a horse to water but you can’t make him drink. In this instance both the prosecuting attorney and the trial judge did their best to see that petitioners were adequately represented by capable counsel but the petitioners steadfastly clung to their alcoholic lawyer.

During the trial after both the State and defense had rested, the trial court out of the presence of the jury conducted the following proceeding:

“THE COURT: For the purpose of the record, the State has completed its case in chief, and the defendant elected not to put any evidence on the stand, and at declaring a recess, one Mr. Bill Horton approached this bench for the purpose of questioning whether or not in his mind the defendants were receiving a fair and impartial trial due to the representation of the defendants by one Mr. William I. Purifoy, an attorney of Camden, Arkansas. He further related to me that the attorney was drinking at the time and had in his pocket a half-pint bottle of wine. With that in mind, I am not familiar with the procedure that has been outlined to the defendants, but the record reflects that on July 14, 1969, each of you and the defendants now appearing at the bar, were arraigned, at which time you were informed of the nature of the offense against you, the penalties of the offense, the presumption of innocence, and the right to trial by a fair and impartial jury, and your rights of self-incrimination, that is, you do not have to make any statements to any persons whatsoever. You had a constitutional right to remain silent, that further, any statement that you might give could be used against you in the trial of the case, and you had a right to counsel at the time this case became directory or accusatory towards you, or more clearly, at the time of your arrest. Further, that you had a right to an appointment of an attorney by this. Court if you were indigent defendants. At that time the Court appointed Mr. Leonard Smead to represent you, and I entered a plea of 'not guilty’ and set your bonds. Subsequent to that, time, each of you have refused the appointment of Mr. Smead and have now employed Mr. William I. Purifoy to represent you. Is that correct?

MR. FRANKLIN: Yes, sir.

MR. REID: Yes, sir.

THE COURT: Now based on the statement of your brother-in-law to me this morning, are each of you aware of the trial that you are receiving today? Do you feel like you are properly represented in court?

MR. FRANKLIN: Yes, sir.

MR. REID: Yes, sir.

THE COURT: I believe as to the defendant Franklin, do you feel that you are properly represented today in court?

MR. FRANKLIN: Yes, sir.

THE COURT: Adequately represented?

MR. FRANKLIN: Yes, sir.

THE COURT: As to the defendant Reid, are you properly and adequately represented?

MR. REID: Yes.

THE COURT: Then there is nothing I can do. I simply wanted to bring, this to you and your attention with the complaint being made to the Court, and I simply am in accord with good justice, to see that justice is done to you and as well as to the State. Now you have employed this attorney and if you’re satisfied with his services, I have nothing to say. That is all. Thank you.”

At petitioners’ post conviction hearing Mr. John M. Graves, the Prosecuting Attorney, testified on cross-examination as follows:

“Q. Let me ask you — describe for the Court if you would, beginning with the apprehension or whatever points are convenient or suppose just what went on with regard to Reid and Franklin as to how the wheels of justice ground out their result.

A. Well, briefly, as I remember, they were arraigned at which time they were apprehended and arraigned and at which time Judge Grumpier appointed Leonard Smead to represent them. They later advised me that they had retained Mr. Purifoy. There were several discussions with both Reid and Franklin with regards to whether or not they were satisfied with Mr. Purifoy’s representations.

Q. What was the nature of these discussions?

A. At certain times that I discussed it with them they weren’t sure they were satisfied with him representing them. It is my understanding, I believe, that one of their wives had paid Mr. Purifoy and retained him — that I discussed it with them, whether or not they wanted me to go to the Court and ask the Court to appoint them another lawyer.

Q. Did you offer to do this?

A. Yes.

Q. What was their answer?

A. Their answer was that they wanted to have Mr. Purifoy try the case . . . The same as it was during the trial.”

In Fay v. Noia, 372 U. S. 391 , 83 S. Ct. 822 , 9 L. Ed. 2d 837 (1963), with reference to a post conviction petitioner who might deliberately by-pass the orderly procedure of the state courts, it was said:

“Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. Discretion is implicit in the statutory command that the judge, after granting the writ and holding a hearing of .appropriate scope, 'dispose of the matter" as law and justice require,’ 28 USC § 2243 ; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule. Furthermore, habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith v. Baldi, 344 U. S. 561, 573 , 97 L. Ed. 549, 558 , 73 S. Ct. 437 (dissenting opinion). Among them is the principle that a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable. We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.”

To the same effect see Henry v. State of Mississippi, 379 U. S. 443 , 85 S. Ct. 564 , 13 L. Ed. 2d 408 (1965).

Thus when we remember that petitioners were arrested inside the Bank of Chidester in the early morning hours, that a large opening had been cut into a door to the bank vault and that burglarly tools including accetylene bottles and a cutting torch were on the floor of the bank near the vault, it is readily apparent that petitioners had no real defense and that their only hope in demanding a trial was to recéive as small a sentence as possible. Furthermore since petitioners did not elect to testify at their postconviction hearing, the trial court -had every reason to follow Fay v. Noia, supra, and deny them any postconviction relief.

It is only human that the jurors, the trial court and this court would be disgusted with petitioners’ counsel under the circumstances. However, the fact remains that they refused sober and capable counsel appointed by the court and steadfastly clung to their employed counsel notwithstanding that both the prosecuting attorney and the trial court advised them that the effectiveness of their counsel was questioned. Thus, like a horse, they were led to water but refused to drink for reasons known only to them. Consequently the trial court upon the record here properly denied them any relief.

I also concur in Justice Jones’ opinion and the logic thereof is most demonstrable by the proposition that the time to yell rape is when it occurs. The petitioners here did not complain of the adequacy of their representation even after the verdict was brought in, but instead negotiated a concurrent plea of 21 years with the prosecuting attorney on other charges.

For the reasons stated, I respectfully dissent.