Donald Joseph Hall v. United States

its content is or its delineated existence Ala., Mobile, for Haas, M. Thomas merely implied, tend to show the ac- appellant. charged? cused of the offense Atty., Mo- Conway, S. Don Asst. U. persuade Or does it tend to that he Jansen, bile, Ala., Jr., S.U. R. Vernol guilty of some other offense than that Atty., appellee. for charged? simply Or that he should GODBOLD, Cir- Before GEWIN put away aas social undesirable? Does CHOATE, Judges, District cuit Judge. go only credibility? to his Is the subject-matter of the remarks ab- name-calling, really stract related Judge: GODBOLD, Circuit to evidence at all? jury by a convicted go questions Some these charging single-count indictment a purpose of the content and statements transportation a stolen interstate attempt made. to search out Others years. to three and sentenced automobile questioned extent which the con for reversed must be The conviction procedural impinges pro duct on the prejudicial tections which the law has erected argu- during by prosecutors oral made itself. Others center around ment. peculiar impact around the which five remarks covered The reversible have remarks appellant had statements that areas: particular accused. witnesses; statement tampered a with considering impact of personal prosecutor of his belief fact, con concerning is said the court also must be issue what a controverted Degnan great potential Agent e., with FBI cerned i. whether statement; pros give persuasion which arises Beck to because forced witness prosecu- personal role same status ecutor’s voucher government Agent Degnan spokesman tend for the that FBI tor says ring give integrity; “we what he a statement authenticity. Attorney’s power and force office] United States [the impart im- guilty;” try prosecute only tend believability hope what the leaves plicit stamp of case and the evidence you anger says. power and as it does us because same with That nothing him, than I tell there is worse a minimum force allow messing words, impress that the with witnesses. And on the very investigatory the evidence shows government’s net- what vast machinery orderly plainly has done. that this defendant apart work, this, any trial, Don’t make mistake about the accused the knows that of Gary Wayne non-judicially death guilty con- Beck is scared to reached or has him. death of tend of this man—scared to which on relevant facts clusions just fit guilty. so he a and So much goes that hospital. has he is to show the to tampering. charge witness objected. Defense counsel The trial argue com- prosecutor to The first judge stated that he did remember inflammatory his remarks with menced evidence that of the Beck was afraid appellant’s to directed statements guilt defendant and the admonished charged to as- of the offense but go beyond not to the cutor evidence. tampered appellant that had sertions objection He did so not rule the far government One witnesses. with primary charge tampering the as was Beck, a government witnesses was gave cautionary and in- concerned no pleaded appellant. He had friend guilty jury. to struction the the next ap- stealing automobile to prosecutor picked up breath transporting, charged pellant with was cudgel again with these remarks: Appellant probation. testi- and was [appel- I the trial don’t what a week before know business that about fied get got try talking him to him lant] to to has [Beck] went to see Beck he anyway. subpoena Beck He stated He is under to to the to trial. come testify, although appellant had after come over here to and told him that nothing car he feared Mr. Hall to him and talked funds to do with him, testify “hurt have to he can’t it would been advanced so to because go Appellant here, probation.” that come he to to the testified over has hospital. psychia- under extensive Beck had been during care, their con- that tric and course, government Of does berserk, a fit had Beck versation went pretrial to have exclusive access wit- mouth, he tried at the that and foamed nesses. hospital to take Beck to Reed was another wit- get car, he then unable to him the and prosecutor As to said: ness. him father, pharmacist. As called Beck’s Now, gentlemen, hope I —I appellant was still far as knew Beck hope you when one saw Reed Mr. hospital time trial. at Mr. Hall here walked wink testimony evidence story tells the whole because at the relating nonattendance to Beck’s buddy. right there. He winks at his ap- no evidence trial. There was going out, to buddy, I am Look help old anything pellant during or said did you. angers I can’t That us. or that Beck to Beck visit help it, public servants because we legitimately confined or not ill duty. try and our we care about We a whis- hospital. to the There was prosecute it dis- and per afraid that Beck was things that. turbs We us see like appellant. try the wit- the cases with want nesses, we don’t them messed want argument by gov- The first words fooled like that. with and ernment these: counsel were objected again. May please MR. it defense CONWAY: again Court, gentlemen, did not rule but admonished am sure sense anger prosecutor evidence. both the stick Prosecutors’ appellant. flammatory But too was friend of nature of Reed the remarks nothing literally nothing— charged They separate, obvious. there was — They tending any- serious, show had criminal offense.2 thing integrity it to do with Beck’s wink went itself. the trial given they implication pursued re-pursued coun- And carried objection sel. after admonition the court. Where there are remarks In Weathers should, such here made the court 1941) F.2d 585 Cir. minimum, objection im sustain defendant’s di- stated mediately clearly instruct wife, government witness, vorced argument supported is not gotten deliberately on the stand and Pepe, evidence. United States herself, perjured added: “It and then (2d F.2d 838 defendant, plain seen that somebody, or opinion had defendant’s counsel or of on a The statement gotten fact, to this disputed woman before time issue of paper Degnan vouching that she delivered to us and the for aas testify.” integrity. time This she was called to of Court reversed. One of the issues that went Beck the witness was whether regard The issue with to witness Degnan by Agent FBI was intimidated tampering admissibility is not of one making into statement that Reed, but of comment.1 toAs there had The stolen the car. second charge support was no evidence to by saying, his cutor met this issue by prose tampering of The defendant. argument: point initial of properly cutor could not deduce from things amazing There some fact of wink the inference of an Hall undertaking The by about this case. defendant affirmative Reed him told “help” buddy.” has here that Beck testified his “old An inference by reasonably the F.B.I. that he was intimidated deducible from evi saying may or to make a statement forced dence not be Luttrell v. stated. the car States, (5th that stole Hall United 320 F.2d 462 Cir. 1963). charge only supported This gentlemen, get tired Now, little I improper implication being the police F.B.I. existent, unstated, of evidence whipping boys liars. of criminals jury did which the not have the benefit. Degnan Harry I don’t believe States, McMillian v. 363 F.2d United and whom who statement took Beck’s (5th 1966). 165 Cir. all in this have seen courtroom anybody to this time would force prosecutor’s assertion be him to make a know statement.

that Beck was afraid of defendant was absolutely the a fine F.B.I. officer — a bald assertion of not in fact absolute finest A of I know. man g., improper, and therefore Dunn e. v. get integrity. little tired And I States, (5th F.2d United 885 307 being boys whipping for of the F.B.I. 1962). tamper His inference of Cir. way And hoodlums. ing could from what mea drawn the defendant I know to describe how ger evidence, were facts United Hall, Donald he is a hoodlum. (2d Persico, States F.2d 534 v. 305 Cir. 1962); Schwartz, of United States 325 counsel (3d 1963); opinion that 355 Luttrell v. F.2d Cir. or his belief States, swpra. highly Agent United in Beck did did or not force Degnan obviously, 1964). And, Evidence of threats to a witness it would be admis tending credibility be admissible con to show sible on of the witness. guilt. Phillips g., sciousness of E. States, (1966). 334 F.2d 589 Cir. 2. 18 1503 § U.S.O. statement, opinion make and his Government counsel stated in oral ar (though Degnan’s fact) gument stated as a us before “in-

integrity, improper. apposite” were The volun because he is an “advo tariness of Beck’s statements cate.” areWe not clear whether underlying credibility issues of for disapproves principle, Writing jury. for this court whether he considers himself outside States, supra, F.2d Dunn v. United disagree. In it. either event we 886, Judge pointed out permit Gewin express per To counsel his express counsel testimony (even sonal belief in the if argu personal opinion in his phrased suggest so as to knowl ment. In McMillian v. United edge of additional evidence not known supra, opinion where the took the form jury), afford would him a being office con privilege not even to wit accorded “they’ve got case,” vinced that subject nesses under oath and followed Dunn. Worse, it creates cross-examination. Greenberg McMillian also relied reliability the false issue (1st v. United credibility pe counsel. case the United States culiarly if unfortunate one of them Attorney expressed opinion of advantage has the of official backi government’s trustworthiness ng.* questions The resolution of consequent evidence and the testimony credibility of for im is Judge the accused. Chief Aldrich said partial jurors judges. The fact and this: is, counsel as he Rule 15 of the Canons of Profes- says, very an the reason advocate is sional Ethics of the American Bar why impinge upon he this should Association reads, quasi-judicial function. believe We improper lawyer “It is for a to funda the canon to be elemental and argument personal assert in his be- mental. lief in his client’s in the innocence or justice of his cause.” 280 F.2d at 474-475.3 * opin Where would this leave criminal de- 3. In some of instances representation, guilt fendant who is entitled to reversible ion of have been held not but supported whose counsel does not in his believe if statement is jury innocence? Must his counsel neverthe- evidence and if it does not lead the relying prosecutor less assert in such a belief order to to believe the is on expressed opinion govern- counter of evidence outside record. At times the the opinions counsel, ment emphasis or does such a defendant in the has been on the against him, have an unrefuted witness in first factor with the second almost dis attorney? prosecuting in the regarded. Thompson form of the United See prosecutor permitted 1959) Or States, (5th ; should a be to 272 919 Cir. argue, example, 14, for “Members of Henderson v. E.2d 218 jury, you my opinion denied, (6th Cir.) I tell trained A.L.R.2d 754 cert. to 660, examine is evidence this defendant L.Ed. 1253 349 U.S. 75 S.Ct. (cid:127) guilty (1935). I as hell. his know it. Even yes, Thompson own counsel knows it. Oh his is not a blanket authoriza- coun: you guilty. sel expressions opinion asked to find him not tion for of about sug- (or else.) But notice guilt anything that not once did he The about gest you argument single ap- to that he statement, shadow even a in an Why pealing passion prejudice belief in his client’s innocence. to subject any didn’t criticism, he? Because his conscience otherwise to was permit you, wouldn’t lawyer him to. Even his own “I’ll be frank with I think the ver- innocent, doesn’t think he is but three Also dict on all counts.” ” * * * etc., ground he wants etc. That an alternative for the affirmance argument case, might not the made but was that even if the statement point stopping except legiti- regarded beyond see no the one as the bounds of stated in argument, the canon. mate defense counsel declined Degnan’s impaneled pass personal on his in- for voucher nocence, blatantly improper. pre- It integrity was clothed sumption jury. It province of- the of innocence. The invaded general credibility dispense presump- in- beyond neither with the went Degnan denigrate tegrity, implying tion of innocence nor func- force a would tion of the trial nor sit a thirteenth as who the sort juror.6 It was a statement. make witness inferentially on ex- merely based description explicitly trinsic “hoodlum.” knowledge extrajudicial objection There no opinion Degnan based use of the term. Steele v. United knowledge. for the reversed This court (5th 1955) States, 222 F.2d 628 Cir. witness voucher styled Jekyl defendant was “Dr. Gradsky F.2d 706 v. United Hyde.” and Mr. This court held no there, Here, jury objection necessary and that was evidence was led to believe own its motion should jury that unavailable unknown or jury disregard have instructed the credibility. established remarks. try “we statement type This of shorthand characteriza- guilty.” only the cute accused, tion of an not based on evi- try prose “we The statement dence, especially likely to stick in guilty” not defensible.4 cute minds and influence its opinion of Expressions individual deliberations. Out the usual welter part guilt are dubious at best. See grey starkly succinct, facts it rises — guilt as supra. statement takes pithy, expressed colorful, sharp in a is, pre-determined The remark fact. break with the decorum which citi- least, to lead the effort at the expects representative zen governmental whole believe government. already determined establishment guilty on to be 5. McMillian, supra, 383 them. before 78, States, Berger v. United 295 U.S. may Or, arguably be it at F.2d 169.5 629, (1934) 55 L.Ed. de- S.Ct. 79 1314 pretrial as a ad mean to that construed scribes the double burden which has defendant matter ministrative Attorney United carries. States charged he else as found been prosecuted, Attorney and been would have is States United ordinary representative level determina of an that administrative jury upon binding controversy, party tion is either to sov- but Appel highly obligation govern persuasive to it. ereignty to or else whose jury and the impartially compelling its held as as lant’s rectify attempt implication pre- to the offer of the court to of a In McMillian the guilt and elected to “stand the situation not near- trial determination exception.” ly here, strong being in the as cast [his] so necessity prosecutor’s form of the [prosecu- 4. “Other ‘institutional’ causes for being by government office agents convinced possible. There is torial] misconduct are “they’ve got a case.” that prosecutor’s bias, possibility that ‘the may Singer points uncon- mental attitude 6. Professor out that restraint may imply sciously swayed, prosecutorial and he conduct become does say jury it the con- of the so much as looks be inclined to that mistrust neutrality which is victed and even sus- the absolute but also indicted toward ” Singer, pected Singer, guilty.’ the defendant. Forensic are shield supra 4, by Federal Prosecutors —and at 236. Misconduct note Grew, 227, 228 How It 20 Ala.L.Rev. (1968). 588 all;

obligation govern integrity, to at and bers of for his fair- interest, therefore, ness, impartiality.” Thompson in crim- and whose prosecution supra, shall it is not that United 923 inal 272 F.2d at justice (concurring ease, And, Berger opinion). shall awin such, peculiar points out, 88, done. he is in a at at As 295 U.S. 55 S.Ct. 633, very the servant at 1321: and definite sense 79 L.Ed. law, aim of which the two fold say average It is fair to escape or in- shall not is that greater degree, jury, in has less prosecute may He nocence suffer. obligations, these confidence vigor indeed, with earnestness and — plainly which so rest But, while he should do so. he cuting faithfully attorney, ob- will be liberty blows, he not at strike hard sug- Consequently, improper served. much ones. It is as to foul strike insinuations, and, gestions, especially, duty his to refrain knowledge assertions of produce calculated methods weight carry against apt much wrongful use is to conviction as they properly accused should when bring every legitimate means carry none. just about one. presence Added this is the unseen 633, 79 at S.Ct. U.S. at great pow- our and courtroom of carried We have L.Ed. erful its counsel Handford doctrine forward its of the United voice Attorney. For all reasons States these 1957): great. persuade And power attorney A car- United States district speak with these he must reasons ries owes an a double He burden. care, sensi- the decorum obligation government, to the tivity position befit his any obligation attorney to his an owes duties. the heat strain Neither zealously. client, his case conduct right trial nor blows strike hard that he But he must also remember authorizes him to do otherwise. govern- representative is the of a Reversed. equal ment to fairness dedicated Judge CHOATE, District justice and, Senior respect, to all (dissenting): obligation heavy the ac- owes a imposes representation cused. Such certainly prosecu- It true that overriding obligation of fairness re- tor’s remarks should be Anglo-American important so stricted to reason- evidence and its rests on foundation: criminal law implications. true But it able is also guilty escape the in- than better presumptively valid verdict zeal out- nocent In this suffer. case appeal should not unless be disturbed argument of the ran The fairness. it is shown that there was reversible attorney in the district United States be- error do not court below. improper, prejudicial, court was lieve such error was demonstrated error. constituted reversible particular in this case. understanding our We reiterated prosecutor's characterization Washington principles Unit- these in object- as a “hoodlum” not ed ed to at This state- trial. short-hand unsupported by ment outrun fairness was not When zeal does evi- and, inappropriate improper, perhaps dence makes while multiple requiring effect fundamental reversal. error length part tip which in favor tends to scales matters discussed government. govern- Ordinarily opinion majority of the 2 of the not as- were individual, “prop- signed is, appeal ment counsel as an error on and were erly highly argued. respected by the mem- It is the function briefed appellate for errors court to search presented to the trial court assigned as error that were appeal. Fogarty See v. United (5 1959). Finally, the 263 F.2d 201 Cir. reasonably understood court was objections to the re-

have sustained parts and 3 of the

marks discussed

majority opinion. did trial At no time obligated for a mis-

counsel feel to move never

trial and the trial called on such motion. rule dealing not here We case slight guilt

where the persuasion government’s

the subject burden of trials are free

to attack. Few

from of the defendant error. and we should hesitate manifest unless reversible

disturb conviction it is cer-

error is demonstrated. While protect

tainly the intent the law accused, rights of the

fundamental also the over-

must remember riding it intent law prosecuted undue promptly without jus- system criminal Our

restraint. suffering severely the now tice is reaching delays final result

common case, proceedings. in criminal court, should be af-

comes before

firmed. H. and William E. GREGORY

Judith Plaintiffs-Appellees, Gregory,

Philip HARDGROVE, D. Defendant- Appellant.

No. Docket 33637. Appeals

United States Court Second Circuit.

Argued Oct.

Decided Dec.

Case Details

Case Name: Donald Joseph Hall v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 12, 1969

Citation: 419 F.2d 582

Docket Number: 25827

Court Abbreviation: 5th Cir.