Petition for Rehearing — Caudle v. United States

UNITED STATES OF AMERICA, = i

Respondent.

Of Order Denying Petition for Writ of Certiorari.

INDEX.

CG SII 6 ik doc ainv a cdecadhsvrnssenesesss 2

Reasons for granting rchearing and issuing the wiit.. 3

Placing the issues in proper context .............. 3

I. The silent prosecutor ...............00e000% 4

Bs UE I I cok cccccscaacaces’s ety 5

Be I I ED bcc da ckncccdcadacharencees 7

BU a Re GE I nc a needing qeescesceeces 10

Vs Re Ge ED bc vdiacscccccvcciccess 11

VI. The Plimsoll line of due process ............ 13

CPE cs inka shee ehekhaceuueeans es eu ewodene sun 13

Cases Cited.

Avery v. Georgia, 345 U.S. 559, 562, 97 L. ed. 1244, 73

Per re Pern er rr Ey Pere en Pere 6

Brown y. United States, 245 I°. 2d 549, 555 (8 CLC. A.,

Ey re Ere Tie hy ren eee ene ee B)

Fikes v. Alabama, 352 U. S. 191, 199 (1957), 1 L. ed.

bt ie Sr 2s S| Serer EEE PT Sree ee 13

U. S. v. Shotwell Manufacturing Company, 58-1 U. S.

T. C., Paragraph 9257 (C. C. H. Advance Sheets—

U. S. Tax Cases—February 12, 1958).............. 10

No. 738.

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1957.

T. LAMAR CAUDLE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR REHEARING

Of Order Denying Petition for Writ of Certiorari.

To the Honorable Earl Warren, the Chief Justice of the

United States, and the Associate Justices of the Su-

preme Court of the United States:

Petitioner prays that this Court grant a rehearing of

its order of March 31, 1958, denying his petition for certio-

rari, and that a writ of certiorari issue to review the judg-

ment of the Court of Appeals for the Eighth Circuit in the

above entitled case, as prayed for in the petition filed on

January 23, 1958.

a on

1. Whether the Fifth Amendmeat will permit a federal

trial judge to conceal from the defendants before, during

and after said trial that said judge is severely depressed

mentally so tha: psychiatric care is necessary and, further,

that the condition of said judge is serious enough to war-

rant the administration of electric shock treatments, that

a hypnotic drug, Paraldehyde, is administered instead in

increasing doses throughout the trial, that the judge him-

self is fearful that ‘‘something has gone wrong with his

brain’’ and that the drug ‘‘may have affected his men-

- tality’’; petitioner urging that a judge in such a condition

has a duty to warn the parties_of his condition so that the

parties, if they desire, may challenge his competency to

serve as trial judge in one of the most controversial trials

of a decade.

2. Whether the Fifth Amendment will permit a federal

court to place upon a defendant in a criminal trial the

burden of proving that two jurors who acted dishonestly

in failing to answer truthfully material questions pro-

pounded by the trial judge on voir dire (also did addi-

tional dishonest acts which were prejudicial to petitioner),

the falseness of said jurors’ original answers having been

proved.

3. Whether the Fifth Amendment and concepts of funda-

mental fairness will permit the admission into evidence of

portions ef a defendant’s files when such files were ob-

tained from the defendant after the indictment naming

him defendant had already been drafted, this fact being

known to the prosecutor and concealed from this peti-

tioner. The material obtained was prejudicial to the

petitioner in view « the construction placed thereon by

the prosecution.

4. Whether a successor judge who succeeds to the duties

of a trial judge upon the suicide of the trial judge has not,

t

— vo

as a matter of law, abused his discretion in (1) failing to

grant a new trial in a case where vital motions remain un-

decided after » trial of 37 days, 72 witnesses, and 200 ex-

hibits and (2) in the alternative, whether, upon deciding

to render a decision in the case, failed to rule on vital

motions expressly reserved by the now-deceased trial

judge.

5. Whether, if no one error be sufficient to justify t?.-

grarting of this petition, the cumulative effect of the many

errors denies petitioner due process of law and deprives

him of his constitutional right vo a fair and impartial trial.

—_—

REASCNS FOR GRANTING REHEARING AND

ISSUING THE WRIT.

PLACING THE ISSUES IN PROPER CONTEXT.

Petitioner’s conviction represents the fulfillment of the

1952 campaign promise to ‘‘clean up the mess in Washing-

ton.’? And the political overtones of this trial cannot be

ignored by this court. Since little of the evidence in this

record is competent 23 .o this petitioner, the conspiracy

statute was invoked with its latent dangers to individual

freedom. The trial was scheduled to begin two months be-

fore the National Party Conventions met to select presi-

dential candidates. The jurors retired to their jury room

less than one month before one of the conventions assem-

bled. In the politically superheated air of St. Louis adverse

publicity concerning defendants was circulated by all the

organs of mass communication. This trial was ‘‘to deter-

mine the future course of the scandal investigations.’’

From reading the reams of publicity in this record, one

could almost assume that the jurors had a public duty to

convict.

Into this maelstrom petitioner .:as thrown. The follow-

ing facts were forgotten: As Assistant Attorney General,

pas eee

petitioner had administrative discretion to prosecute or to

decline prosecution. The maligned ‘‘health policy,’’ insti-

tuted by his predecessors, was one standard to guide these

decisions. Petitioner’s decision based on the opinions of

eminent psychiatrists, met the approval of his subordinates.

Federal Judge Harper, describing the case as ‘*the most

complicated medical problem of any case that I ever had

before me,’’ gave judicia! recognition to the correctness of

petitioner’s decision. And though the Court of Appeals

stated that petitioner received ‘‘substantial profits,’’ even

that court cannot alter the facts admitted by the govern-

ment—petitioner did not receive one cent.

I. The Silent Prosecutor.

On November 22, 1955, the government prosecutor

drafted the indictment naming petitioner as defendant. The

following day, petitioner turned over his private files to

government agents not knowing that his indictment had

been drawn. Portions of these files were admitted into

evidence over the timely objections of petitioner. The

(‘ourt of Appeals, though the issue was raised before them

at length, failed to discuss the use of this evidence.

Petitioner was familiar with the ordinary practice of

government prosecutors before grand juries. This knowl-

edge, relied upon by the government to prove that peti-

tioner was adequately appraised of his rights, actually

worked to his disadvantage for petitioner was familiar

with the duty of the prosecutor to warn potential defend-

ants as to their status before the grand jury. Mistakenly,

petitioner understandably felt that he could rely upon

the government to treat him fairly.

Unknown to defendant he became a potential defendant

possibly as early as November 18, 1955. There is no ques-

tion however about the date of the drafting of the indict-

ment, November 22. On that date petitioner, for all prac-

ae, eae

tical purposes, was no longer a potential defendant. When

we consider the power of the government before a grand

jury, we must realize that petitioner was on that date an

actual defendant.

As the prosecutor well knew, once the petitioner was

informed as to his status, the government would lose all

chance of procuring these papers. Therefore, the prose-

cutor decided to conceal the fact from the petitioner. Con-

cealing this vital fact as to petitioner’s status amounts to

obtaining his papers by the misrepresentation of a ma-

terial fact. ‘

Constitutional rights can only be exercised by a person

cognizant of his peril. Once his indictment was drafted,

his status was radically altered. His danger was greatly

increased. In such a situation petitioner was at the mercy

of his government. No quarter was given. The fact re-

mained concealed. The over-zealous prosecutor who re-

mained silent was Wyllis Neweomb whose actions before

another federal grand jury came ‘‘perilously close to be-

ing a fraud on the jurisdiction of this court’’. Brown v.

United States, 245 F. 2d 549, 553 (8 C. C. A., 1957).

Surely the government with its limitless resources owes

the simple ethics of fundamentzl fairness to those citizens

whom it would prosecute. The Eighth Circuit failed to

discuss this matter. Surely the admission of this tainted

evidence condones the actions of a prosecutor whose con-

duct poses a new and substantial question directly affecting

the administration of criminal justice in the federal courts.

II. The Silent Jurors.

The Court of Appeals has decreed the unique rule that

even after petitioner has proved that jurors who sit in

judgment upon him have testified falsely as to their politi-

cal affiliations, the petitioner must further bear the burden

dni

of proving additional acts of dishonesty by these jurors

before he may show prejudice.

The allocation of the burden of proof is often decisive.

In this case the burden is impossible to sustain unless

petitioner is fortunate enough to receive a confession from

the silent jurors to additional acts. Should this case go

unreversed, jurors may remain silent on voir dire with no

prejudice attached to their actions. And defendants will

ponder the value of challenges when they know that

this court permits jurors to conceal material facts.

The courts below advance the following argument to

justify their position: ‘‘. . . this court has no right to

assume that in this trial jurors of Republican affiliation

would be prejudicial to these defendants . . .’’ Would

those lower courts also assume no prejudice even though

certain jurors concealed their Republican affiliations from

the questions of the trial judge? And yet that is what the

court says even though any juror who admitted political

affiliation and activity was struck by either the defendants

or the governments.

To force petitioner to prove additional dishonest acts

on the part of these jurors misplaces the burden. In a

similar situation this court said: ‘‘ . . . The Court below

affirmed, however, because petitioner had failed to prove

some particular act . . . and the State argues that it is

petitioner’s burden to fill this ‘factual vacuum.’ We can-

not agree. If there is a ‘vacuum’ it is one which the State

must fill,’’ Avery v. Georgia, 345 U. S. 559, 562, 97 L. ed.

1244, 73 S. Ct. 891.

Surely this Court will require as high a standard of

conduct in the federal courts as Avery demands of the

states. Because those jurors were silent petitioner was

deprived of his righi to challenge.

=

Ill. The Silent Judge.

Although the right to challenge jurors is valuable, it is

no more precious than the right to challenge the compe-

tency of the judge who shall hear your case. This right,

however, is also useless without having adequate facts

upon which to base a timely challenge. If these facts are

locked within the bosom of the court, petitioner is helpless.

During this long, arduous trial, the late Rubey Hulen

was a desperately ill man. His bodily ills posed no danger

to the administration of criminal justice. Such cannot be

said of his menta! ills.

This subject is distasteful to petitioner because Rubey

Hulen may no longer defend himself. Yet petitioner is

in extremis. Plain words must be used.

Judge Hulen was under the care of a doctor and a

psychiatrist during this trial. The fact of his illness and

its nature were not revealed to petitioner until six months

after the judge's death. The information, in the form of

affidavits, was presented to the successor judge the day

before sentence was passed. Consequently the questions

there raised have never been fully explored.

The following excerpts from the affidavits of the two

doctors are eloquent: :

The Psychiatrist:

‘*. . . Approximately three weeks before the begin-

ning of the trial of the Connelly-Caudle case Judge

Hulen again consulted me saying that he had a fe-

currence of his inability to sleep and was again in a

depressed mind. I renewed the medication but dur-

ing the course of time more and more medication was

required for him to get adequate rest. He was taking

Paraldehyde, a liquid sedative, that carries with it

=

some odor that is discharged through the lungs. As

the trial progressed it was necessary for the judge to

take more and more of this medication and the amount

that he was taking begzn to worry him, first, because

he feared it would effect his mental capacity, . . . He

construed to be in a state of melancholy and had he

not been in daily sessions in the Court which required

his constant presence, I would have considered pre-

scribing electric shock treatments for him, which, in

my opinion, would have calmed him down and reduced

his depression substantially and permitted him to do

his work comfortably in a normai manner. However,

electro therapy involves temporary loss of memory

. . . Therefore, he was continued on the liquid medica-

tion in rather heavy doses in an attempt to tide him

over until the pressure of this trial abated... .

After the trial was completed it was concluded be-

tween Dr. Kountz and myself that Judge Hulen should

be hospitalized and a date was set for him to enter

Barnes Hospital . . . He was scheduled to enter the

hospital on the day that the fatal builet was in-

flicted . ..

It is my professional opinion that during the period

that covered the trial of this case that Judge Hulen’s

emotional state was such as to make him somewhat

indecisive and perhaps his medication would have im-

paired his judgment to some degree on one day or

another during that period. . .”’

The Doctor: ~

‘«. . . after the trial was over I was concerned about

his depressed state of mind, and in consultation with

Dr. Haddock, agreed that the judge should be hospital-

lized and should, if possible, be persuaded to take

electric shock treatments to relieve his tension. . . .

He was already fearful that something had gone wrong

with his mind and that possibly the liquid medication

a poe

given him by Dr. Haddock had already done injury

to him. . . °. On the Sunday before Saturday that he

was to enter the hospital, I went by Judge Hulen’s

home to invite him to accompany me on a visit out

to my farm. He said he could not go for he was hav-

ing difficulty in preparing an opinion in the Connelly-

Caudle case. He stated that he was having great

difficulty in concentrating and bringing his pencil down

to the paper to write the opinion that was expected

of him and complained that the medication had in

some way affected his mentality. . . .”’ =

In the ordinary case facts such as these might not prove

decisive. But one of the largest issues in the trial before

Judge Hulen was the mental health of the taxpayer Sachs.

Thousands of words of medical testimony described min-

utely his fits of depression and his suicidal tendencies.

Deep in his leather chair, Judge Hulen listened . . . lis-

tened to symptoms quite like his own. Unknown to every-

one else in that courtroom, Judge Hulen was listening

to a partial analysis of his own condition. His heart and

brain must have recoiled throughout that agonizing task.

Judge Hulen could have mentioned his desperate mental

plight to counsel. Yet he remained silent. The muffled re-

port of a pistol brought him peace.

It is obvious that had ecither the government or peti-

tioner known of the Judge’s condition, serious consideration

would have been given to challenging his competency to

sit in this controversial trial. Perhaps then Rubey Hulen

would be alive today. No one can sey with certainty what

effect his illness had upon his discretion and judicial tem-

perament. And to say that the printed record is ample

protection of petitioner’s rights is to beg the question.

Sitting in judgment is difficult enough with a sound mind.

And to force petitioner to prove, in the face of these affi-

davits, that the illness of the judge prejudiced him is again

—

imposing an impossible burden. Surely the Constitution

guarantees this defendant the right to be heard by a

judge in full possession of his mental facultica.

IV. The Unhearing Judge.

Petitioner feels justified in raising this issue because of

certain statements made by the Successor Judge, Gunnar

Nordbye, in U. S. v. Shotwell Manufacturing Company, re-

ceived after the Petition for Certiorari was filed. The case

is cited in 58-1 U. S. T. C., Paragraph 9257 (C. C. H. Ad-

vance Sheets—U. S. Tax Cases—Febrnary 12, 1958). Pe-

titioner would like to adopt as his own argument the fol-

lowing words by Nordbye, J.:

‘c¢. | , But, just because his (trial judge) fact-find-

ing is based on his estimates of the witnesses, of their

reliability as reporters of what they saw and heard,

it is his duty, while listening to and watching them

to form attitudes toward them. He must do his best

to ascertain their motives, their biases, their dominat-

ing passions and interests, for only so can he jucse

of the accuracy of their narrations. He must also

shrewdly observe the stratagems of the opposing

lawyers, perceive their efforts to sway him by appeal

to his predelictions. He must cannily penetrate

through the surface of their remarks to their real

purposes and motives . . . If the judge did net form

judgments of the actors in those courthouse dramas

called trials, he could never render decisions. Frank,

J.—In Re Linahan, 138 F. 2d 650, 653.’ ”

To quote these words by the late Jerome Frank after

attempting to rule on a cold record of 37 days, 72 wit-

nesses and 200 exhibits shatters the faith of petitioner.

— yo

V. The Silent Schwimmer.

From October 26, 1949, the date the petitioner first met

Harry I. Schwimmer unti! he left Washington he never

conferred with him alone.

The suspicion against the petitioner is engendered be-

cause of the efforts of Schwimmer to sell petitioner a frac-

tional mineral interest for $750.00, the title to which was

recorded in petitioner’s name without his knowledge in the

State of Oklahoma.

Insulted by this familiarity Schwimmer was severely

rebuked and condemned. An apology admitting his error

and the promise that he would correct the mistake he per-

sonally made seemed sufficient in the judgment of the peti-

tioner. No gift was offered, only an effort to sell, which

was not acceptable.

Many promises were made by Schwimmer resulting from

many long distance telephone calls demanding a deed to

sign to sever title from petitioner’s name, his continued

illness and confinement to his home because of angina pec-

toris, his acceptance of full responsibility for his mistaken

efforts to sell petitioner and the fact that his introduction

to the petitioner stemmed under the highest auspices an

attorney could have, confused and confounded the peti-

tioner no end until the day he ‘received the long songht

deed to sign in April, 1951, which was promptly executed

by the petitioner and his wife, air mailed within 40 minutes

from its reception where title has vested from that time

until now in the name of Schwimmer and his wife.

Other than the serious illness of the taxpayer Sachs as

disclosed by five long affidavits of eminent physicians of

St. Louis, none known to the petitioner, and relying upon

the Assistant Superintendent of St. Elizabeth Hospital and

his staff of senior psychiatrists to guide him and his staff,

as consultants, and Schwimmer’s unsuccessful efforts to

on

sell some kind of an interest to the petitioner, was the ex-

tent of knowledge that the petitioner had of Schwimmer’s

activities.

Not until 3 years 7 months and 21 days later was he ap-

prised to some extent of the activities of Schwimmer when

the petitioner was before the grand jury and 17 court trial

days when Schwimmer’s unethical practices were proven

by witnesses hundreds of miles removed from where the

petitioner lived. As to all of these activities, none ever

known to the petitioner, the silent Schwimmer has re-

mained silent.

His heart attack in the court room, Judge Hulen’s open

reluctance to grant Schwimmer a mistrial until a reputable

physician, appointed by him, swore under oath that to

force his presence further would probably result in Schwim-

mer’s death, left the petitioner in a hiatus state then as

he is now because of the silence of the only one who caused

the gross humiliation borne by him and his family.

The silence of this man, barely known to the petitioner,

his proven lies and silent activities, never explained by him

or by any person for him, and the lack of knowledge of all

until confronted with it during the trial, is a plague upon

the house of the petitioner.

His whereabouts have rot been known to the petitioner

since his stumbling departure in the aisle of the court room

before the public and the jury the day the mistrial was

granted.

This court should recognize the latent dangers all public

officials are plagued with by characters of this type whose

silent, unknown activities, if known, would have altered

the course taken by the petitioner.

To this very hour, having spawned the specter he alone

created, he remains silent wherever he is.

_— oe

VI. The Plimsoll Line of Due Process.

This tragic trial has been marked by the following un-

usual circumstances: a prosecutor silent as to material

facts; two jurors silent as to material facts; a judge silent

as to his serious mental illness; the broad sweep of the

conspiracy statute; the heart attack of defendant Schwim-

mer in the courtroom and his departure, leaving petitioner

with the burden of ezplaining away evidence incompetent

as to him and unknown to him prior to the trial; the ad-

mission of ambiguous, poisonous Exhibit 100J, a piece of

evidence that the trial judge refused to admit five times

before yielding on the sixth; the trial judge allowing peti-

tioner only two hours to argue his case before the jury after

37 days of trial; the express reservation of motions by the

trial judge; the successor judge failing to rule on these

motions; the death of petitioner’s chief counsel; the dis-

closures by the doctors of statements by the dead judge;

the successor judge ruling as an appellate court; the suc-

cessor judge seeing petitioner for the first time in passing

sentence; the appellate court stating several times that

petitioner received substantial profits when the government

admits he received nothing; the Court of Appeals failing

to mention the eminent psychiatrists and the federal judge

who supported petitioner’s honest decision not to prose-

cute because of the taxpayer’s health condition.

If there be a Plimsoll Liné of due process, surely peti-

tioner’s craft is heavily laden. Never have so many

strange happenings occurred during the course of a single

trial. Their cumulative effect cannot justly be ignored.

Fikes v. Alabama, 352 U. S. 191, 199 (1957), 1 L. ed. (2d)

246, 77 S. Ct. 281.

CONCLUSION.

Petitioner hereby formally adopts as his own and incor-

porates by reference the Petition for Rehearing filed by

Matthew Connelly.

ene, Wren

For the reasons co:.tained in this petition and in the peti-

tion filed by Mr. Connelly, petitioner prays this Court to

grant this Petition for Rehearing.

Respectfully submitted,

C. ARTHUR ANDERSON,

722 Chestnut Street,

St. Louis, Missouri,

WALTER M. HAYNES,

Winchester, Tennessee,

JOHN J. HOOKER,

1106 Nashville Trust Building,

Nashville 3, Tennessee,

By JOHN J. HOOKER,

Counsel for Petitioner.