Frank A. Eyman, Superintendent, Arizona State Penitentiary v. Robert Alford

for recon- below remand ease Atty., County (argued), Jerry L. Smith light sideration Miranda Atty. Smith, Flagstaff, Ariz., F. Darrell Arizona, ante, p. Gen., 436 [86 Atty. Tegart, Gen., Asst. James S. being impossible 694], Phoenix, Ariz., appellant. say whether on the record Tucson, Morgan (argued), Edward W. principles in that case have announced Flag- Ariz., (argued), H. John Grace been violated.” Ariz., staff, appellee. following forth set issues were Before MERRILL and JOHNSEN* of de- court’s the district memorandum CARTER, Judges. Circuit by passed court. cision and Judge. CARTER, JAMES M. Circuit give defendant 1. theWas failure original con- of his appeal time an counsel at the This is order of right counsel evidentiary court, fession a denial of district hear- after an * ap- opinion, Harvey Miranda is not Johnsen, I of the M. Senior Circuit Hon. plicable Circuit, Omaha, Nеbraska, Judge, Eighth of non-retro- because to this case requirements though activity, sitting designation. by even complied apparently were of Miranda Douglas’ appears 1. with. Mr. Justice concern have been unwarranted. As discussed process a denial of due statement under oath of the defendant 14th Amendment to States guilty, the United that he was not denial of due process Constitution ? under the 14th the United States Constitution? defendant, Was reason being preliminary properly denied counsel at his 8. Was defendant convicted hearing, appointed denied to counsel under when his counsel could Constitution, and denied due not afford contact out of state wit- alleged under the and 14th Amend- 6th nesses to his client’s innocence ? ments to the United States Constitution reason of the fact that counsel did not money have to undertake such an investi- prosecution the defend- Was the gation, in of the 6th and 14th violation ant indictment information without Amendments to the Con- United States grand jury 5th violation stitution ? Amendment of the United Con- States decision stitution court based its ? district granting on issues 6 & 7 above writ 4. Was the of refusal the trial court against appellee and found to set the responsibility level of criminal maining issues. under either the “Durham Rule” or the Arizona) (State on this Appellant of Model Code of Criminal a denial Law seeking reversal, appeal, states law, due in equal a denial protection of follows: issues as the law under the United Amendment, States Constitution’s 14th (A) appellee denied Whether or a comply failure to with the standards in be- Amendment the 6th of the doctrine mens rea ? cross-examine ing to confront and unable pre-sentence and sentence 5. witnesses Was the denial under applicable the dis- (Issue proceedings 6 state No. before laws of right Arizona of the to ad- court). mit trict evidence insanity less than that permitted by M’Naghten (B) Rule and Whether it was a violation other mitigation evidence of punish- the Due of the 14th Process Clause ment, a equal denial of protection of the Amendment for the trial court state law under the 14th Amendment to the refuse to allow withdraw United States Constitution? (Issue plea guilty, prior to sentence court). No. 7 before district 6. Was the trial court’s conduct in obtaining (C) psychiatric a Whether оpinion the district court concern- ing refusing erred in Supreme condition of the to follow defendant with- out knowledge precedent interpretation Court defendant or counsel, defendant’s (Issue 14th No. 6 without be- afford- ing the court). fore the right defendant or district his counsel the of cross-examination, and in deter- Appellee states in his brief mining from judicial said extra evidence our relies punishment defendant, a denial all the made contentions dis of counsel under the 6th Amendment to cross-appeal trict court. There was no the United States Constitution and a by appellee rulings from the adverse right denial of the of cross-examination 1, 2, 4,3, issues No. 5 and 8. This provisions under the of the United States probably so, ap proceeding. If civil providing Constitution the defendant the pellee may appellant’s appeal raise right to confront witnesses under the 6th issues, cross-appeal. these Montgomery-Ward without a Amendment of the United Con- States Duncan, 311 & Co. v. stitution ? 254, 243, 189, 147 85 L.Ed. 61 Seeburg Corp., 7. court, (1940); Was the refusal the trial Minthorne prior sentencing, see, (9 1968); 397 F.2d Gordon defendant’s 237 Cir. request change plea guilty Enterprises, Firemen’s Mailloux Inc. guilty 740, Company, when Court had the 366 F.2d 741- Insurance Refrig 1966); right attorney Moist Cold and his have an Cir. Inc., Co., hearing. Co., preliminary to a v. Lou Johnson Inc. erator denied, 1957), cert. 249 F.2d preliminary hearing A was held on 1008, 356 U.S. July 22, 1963. did not ask (1958). attorney an employ attorney nor though he had the assets described above. proceeding this habeas Whether He was bound over for trial. civil, is or is not sincе it involves penalty the issues consider all we will permitted by An information, through below, 8. raised Nos. law, July 26, July was filed 1963. On Appellee, incarcerated now appellee appeared employed counsel Flagstaff, Arizona, pend- county jail at pleas entered of not to each charged ing criminal appeal, charge. September Trial was set July in three complaint filed 9, 1963, September later but continued children three of murder counts ap- 1963. A to determine age Carol, aged follows: named and pellee’s ability mental to stand trial was Jacqueline, 12; age 14; Theodore, September later set for found age had been Their bodies hearing, pursuant to Rule Highway 1963, one mile south June Procedure, Rules Criminal in- Williams, Initiаl Arizona. near was held on Appellee the date set. and shot vestigation had been Carol showed employed his present. counsel were The beaten; Jacqueline and times and four reports Tuehler, written of a Dr. Maier twice. shot each had been Theodore psychiatrist, psychologist, and a Dr. Rosa, Appellee was arrested at Santa Cantor, presented. Aaron were July 12, PM 1963. California about 4:45 identity He of the was advised sanity hearing At Dr. Tuehler being officers, arrested what he was was called appellee. as a witness for the a state- to make qualifications and that he did not have testify His expert to as an taken. ment. No statement was then psychiatry witness in the field of were stipulated to. He he ex- testified had he interviewed At about 10 PM was appellee, amined and did interviewed the fully agent of his an FBI him who advised sensorium, an evaluation of his neuro- a rights.2 Appellee not want did said he logical examination, ap- a review following July attorney. day, The pellee’s present predicament a had and given 1963, polygraph a examination was past history involving a mental available request, appellee later and to at his illness in He had before him 1958-1959. being day, after he interviewed was subject’s also in- an evaluation of the rights. again Then on of his advised telligence Cantor, Chief Dr. made being again July 14, 1963, advised after Psychiatrist Hospital, the Veterans killing rights, to the he confessed of his holding Psychology. He a testi- Ph.D. children. three M'Naghten fied hе was familiar with being July 14, 1963, advised after On pass appellee could and did Rule and that by a State California of his sanity M’Naghten on the Rule for signed municipal appellee judge, a waiver day the basis he him and “on examined of extradiction. period me, of his to as statements during at- May June, and indigent time at the was alleged have youngsters to person tacks on were on of his had $435 arrest. He ” capable occurred; of as- pick-up that he was unencumbered owned an and defense; sisting Flagstaff in his own camper. returned He was the Durham familiar arraigned a was also 16, 1963, doctor July on probably be appellee would him Rule advised Peace who Justice hospital case him, considered a charges of the murder oрinion. part agent I contained the FBI contents the statement Rule; appellee neurotic was At the petition Durham the habeas psychotic. court, before the but not district John F. Huber agent testified that he anwas FBI ap- he testified cross-examination On first talked at the Santa Rosa defective; he pellee mentally was county jail July (This insane; assist he could was not arrest). the date of the He testified reports in his own defense. counsel that Under present Clark also Sheriff Cole was received were Tuchler and Cantor of Drs. he, ap- Huber, and that advised case. of the record in the pellee as follows: “I advised him that ap- testimony, In of the medical view any statement he made to me have employed through pellee counsel basis, voluntary to be on free vol- to allow him moved state court untary basis, talk that he did not have to en- pleas of not withdraw his was, I me. him I advised who guilty pleas of the three in each ter * * * agent special of the F.B.I. guilty pleas entered counts. The were right told him that he had see an at- appellee. personally The state torney prior to the time that talked for October set telephone me. desk. There was a requested prosecutor’s office I asked him if he call then wanted to report the evi- submit a full written attorney, and there to consult with an they at the offered dence that would have and he that he not. I told him said did they to be trial and what believed attorney that we would furnish him an request to bе facts of case. The one, if he to afford and he wasn’t able approval counsel submitted to defense money, one, he had if he said that wanted at- disapproval. the defense Likewise get one. He that would be able to said torney was directed to submit a written nothing hide, and therefore report copy prosecutor. awith attorney. he I didn’t need to have Attorney appellee request did not say anything he told him that that did court, pursuant the 336, to Rule him, against to me could later be used Rules of Procedure, A.R.S., Criminal 17 testimony And or in a court of law. mitigating for a aggravating or circum- him under no circumstances told hearing. However, stances the any promises to would make threats its own investigation conducted an and him in ordеr to obtain statement.” inquired into the circumstances sur- guilt No admissions of were made. rounding the crime. questioning Ap- was terminated. On the basis of all the information pellee again July was interviewed 13 which the court accumulated, had the pre- and in substance the same advice sentencing judge 7, 1963, on October ex- viously given by agent FBI was the plained imposed his decision and the peated. The interview lasted about penalty. thirty minutes. again July Appellee was interviewed I. 14 and in the substance advice same agent. Appellee given contends he was him FBI that was denied the On admitting signed counsel ‍​‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​​​‌‍at the time of his confession and date he a statement (Issues preliminary Ap- hearing at 1 the murder of the three children. pellee No. it, court), and 2 before took considerable the district read corrections, time, that he the initialed was denied effective assistance initialed (Issue page counsel each the bottom wrote due a lack of funds and at signed pages court) No. 8 he read these had district vio- testified, “At lation of and Fourteenth statement himself. Huber Sixth said, signed ‘I have he the time he it Amendments the United States Con- just signed my That death warrant.’ stitution. these own We find no merit quote.” is a contentions. direct 312 counsel; testimony appears chose, with advice From this Thus, counsel, guilt. no properly appellee’s admit confession was knowingly, prepare defense required intel funds were obtained after against charges voluntarily him. ligently, waived Arizona, 384 v. U.S. Miranda counsel. II. (1966) 1602, 436, 694 16 L.Ed. 86 S.Ct. 478, Illinois, U.S. v. 378 and Escobedo Appellee contends he was de (1964), 1758, 84 12 L.Ed.2d 977 S.Ct. prose nied due because they are applicable not to this since case cuted on filed the dis an information 1963, 7, not to October retroactive grand attorney rather than on trict appellee, John date of jury (Issue No. 3 before indictment 719, Jersey, 86 S.Ct. 384 son v. New court). There is no merit district Moreover, 1772, (1966). L.Ed.2d 882 16 specifi Supreme contention. The Court guilty plead appellee confession since cally approved prosecution informa find no him. We used never California, 110 U.S. tion in Hurtado v. prejudice or violation of constitutional (1884), 28 L.Ed. 232 4 S.Ct. appel rights at lack of counsel due ever followed been decision has original lee’s confession. 169 Hоcker, F.2d 394 Morford v. since. therein. 1968), cited and cases Cir. Appellee again advised Eyman, F.2d so We held in Sims hearing, preliminary but proceed chose to without counsel. He prejudice

suffered no as a result. White Maryland, III. 373 U.S. (1963) application L.Ed.2d 193 no has Arizona’s contends that to this plead case since not M’Naghten test use of the rule as preliminary at the hearing, and, further competence the Four for mental violates more, preliminary is not a States teenth United stage” proceedings “critical dis (Issue No. 4 before Constitution Garaygordobil, Arizona law. State v. agree. Both court). trict We do (1961). 161, 166, Ariz. 359 P.2d 753 Supreme Court the United States Alabama, Hamilton v. 368 U.S. permitted use this Court have (1961) also M’Naghten rule, and adhere we applicable preliminary since the hear Oregon, position 343 that now. Leland v. ing arraignment. in is not Arizona an 1002, 1302 96 L.Ed. U.S. 72 S.Ct. Coursey, P.2d State v. 71 225 Ariz. States, 241 (1952); United Sauer v. Thomas, (1950); 713 78 Ariz. State denied, (9 Cir.), U.S. 354 cert. 640 F.2d denied, (1954), 350 275 408 cert. P.2d 1539 L.Ed. 828 100 States, 390 (1957); United Ramer v. (1956). Appellee’s constitutional 1968). F.2d 564 Cir. of coun were not the absence violated hearing. preliminary sel at his IV. pass We do not on whether insuf Appellee Ari contends the that ficient properly prepare funds trial for sentencing procedure zona in murder could in result a denial of effective as cases, sole which not allow does evidence sistance of in counsel violation ly mitigation punishment in Amendment, ques Fourteenth since this presented process, jury, due to a violates present tion is in not the before us. case right protеction, equal not the and study Our in this case and record jury plead guilty trial demand a and surrounding guilty the appellee’s facts court). (Issue the No. district 5 before plea that convince us not denied was length rejected at and We considered effective due to a assistance counsel Eyman, 405 indigent in Appellee this same attack Sims v. lack funds. not was legal basis arrest; The F.2d 439 at the time of retained erly imposed. for to the the attack is identical Appellee here contends that procedure basis here attack in factual this Sims. violated his constitutional except appel- generally rights. same that judge, Judge judge (the prisoner) Wren, obviously lee here contends a appreciated gravity procedurе, evi- Arizona hear responsibility following could under of his appellee’s incompetency pleas of mental which guilty. dence expressed pref- He M’Naghten qualify jury would not under the erence for a decision sen- as to the be- test and so would not be admissible imposed. tence which should be He al- jury; that fore Arizona thus passing an lowed several weeks sen- before able plead to be defendant must study reports so tence that he could present we have such evidence. What submitted both sides and all consider disposes of this issue. held Accordingly, in Sims relevant information. discussed the facts the case Y. investigating officers and learned that bullets had fired been into the hearts Appellee contends that he denied thеy already the children after had been right and cross confront examine shot. this doubts Since evidence raised presentence witnesses sen- appellee’s in his mind mental con- about proceedings tence in violation dition, Tuchler, to Dr. he talked who Sixth and Fourteenth Amendments hearing. sanity appellee’s testified (Issue United States Constitution No. 6 Dr. Tuchler that stated court). before the district The district not of mental evidence indicative appellee’s found in on this favor incompetence, act rather was the but disagree. contention. We destroying calculating mind intent The Arizona Rules Criminal Pro- might testify. anyone who later cedure, permit Rules consultation contends judge to obtain and consider evidence informa- with Dr. Tuchler additional proper sentencing may relevant reality extension tion was jury have been inadmissible hearing, sanity Rule guilt. on the issue of in- The witnesses given were Dr. Tuchler answers producing volved evidence confront appellee’s violation subject to confrontation cross exam- against him. witnesses and cross examine case, ination In this defendant. sentencing judge obtained additional Rule 250 It is clear from the appellee’s compe- information on mental September 20th M’Nagh tence de- and other matters order to legally insane under punishment prop- termine what should be employed by ten test Procedure, pun- plea Arizona Rules of Criminal as to the and has discretion offense, may Rules 336 and read: hear ishment Inquiry mitigаting punish- “Rule 336. into what witnesses to determine aggravating imposed.” and When circumstances. ment shall be pen- broadly interpreted the alty has court discretion as to the has been Rule 336 defendant, to be inflicted on the men- “circumstances” in Arizona. The shall, upon suggestion party of either exten- limited to therein are not tioned uating may immediately that properly there circumstances which sur- circumstances consideration, rounding be taken into offense but commission information, any type hear evidence as to circumstances fa- the both include summarily open court, unfavorable, in either im- de- about the vorable and mediately special background or at a The time and character. fendant’s party assessing рunishment judge such notice to the the bound adverse is not directs, inquire may court or the court evidence in rules of evidence may punishment into such mo- circumstances its own and he con- to determine ag- mitigation many tion.” or in matters sider gravation punish- “Rule 187. Determination be inadmissible which would plea guilty. guilt ment on a When de- State or innocence. on the issue pleads guilty Levice, fendant to an 130 P.2d indictment 59 Ariz. v. information, accepts (1942). if the court competent to stand trial. The if was able restricted to information were consulting Tuchler, judge, given open Dr. in in court witnesses seeking subject to deter- information additional to cross-examination. And the trial, competence appellee's ‍​‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​​​‌‍probation report mine stand modеrn in- draws seeking every concerning infor- aspect additional but rather was formation concerning proper type sentence mation a defendant’s life. The and ex- information, Thus, imposed. totally tent of this information make presented aggravating impossible impractical open circum- which if not stance, presentence testimony investi- of a with cross-examina- gation permitted by procedure law. Such endless- tion. could Such a ly delay in could be relied on information criminal administration judge passing and was sentence issues. retrial collateral subject cross ex- confrontation The considerations have set we out by appellee. amination treating admonish us the due- process guaran The сlause as a uniform command Sixth right throughout opposing tees the courts confront wit the Nation age-old nesses, including practice to cross ex abandon their of seek- ing amine, prosecutions, in all information from criminal out-of-court guarantee binding guide judgment this sources to is their to- made through enlightened just Amend states the Fourteenth ward a more sen- Texas, Pointer 380 U.S. tence. ment v. New York statutes criminal (1965), 85 S.Ct. set limits for wide maximum and mini- see, retroactive, apparently fully which is mum sentences. Under New York Douglas Alabama, 85 S. judge escape U.S. statutes a state cannot (1965). grave fixing How responsibility Ct. 13 L.Ed.2d 934 sen- guarantee apply ever, determining does not tence. In de- whether a presentence one-year evidence obtained in fеndant shall receive a mini- proceedings. twenty-year sentence mum or maximum sen- tence, we do not think Federal We believe the case Williams Constitution restricts view York, New sentencing judge the information (1949) controlling here. 93 L.Ed. 1337 due-pro- open court. contrary received judge, the trial In that case not be treated as a cess should clause recommendation, imposed jury’s freezing pro- the evidential large- device for penalty on the defendant sentencing the mold cedure con- light ly information of additional procedure. treat due- trial So report presentence tained pre- if not hinder clause jury. Under was inadmissible before federal— courts —state clude all judge law, consider could New York making efforts to im- progressive though from ob- it was even such information of criminal prove the administration per- outside the courtroom tained justice. not been the defendant sons whom examine. cross permitted to confront or however, should urged, that we It is pro- Supreme stated Court toas distinction a constitutional draw judge in proper since the cedure obtaining informa- procedure for by the sentencing bound not be need im- sentence the death tion where applicable evidence rules of strict accept conten- posed. cannot We (337 U.S. concluded The Court trial. free Leaving a tion. 1084, footnotes 250-252, at 69 S.Ct. at infor- of out-of-court himself to avail omitted): choice making a fateful such in mation of recognize most that must "We a to him broad secure sentences does judges upon relied now information susceptible discretionary power, one intelligent im- guide them to considering a whether But in abuse. unavail- be position of sentences be should rigid barrier constitutional

315 any created, must that appellee’s it be remembered violations of un- possibility of wherever der there abuse Sixth and Fourteenth Amend- judge im- a must between life ments. choose * * * prisonment We death. say due-process that clause VI.

cannot merely because renders a sentence void Appellee contends that it was a denial judge gets in- a additional out-of-court of due under the Fourteenth formation to assist him in exercise to the United States Con- power imposing of this awesome stitution for the trial court to refuse to death sentence.” plea guilty allow him to his withdraw prior sentencing to (Issue 7No. before The Williams case has been adhered court). the district The district court Supreme to and followed in Court appellee’s also found in on this favor Oklahoma, the circuits. See Williams v. disagree. Again, contention. we 576, 421, 358 U.S. 79 S.Ct. appears appellee, It that with advice (1959); Specht Patterson, counsel, realized that his crime was 18 L.Ed.2d 326 aggravated so Fischer, and the evidence (1967); and United ‍​‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​​​‌‍States v. overwhelming so him that he would al- 381 F.2d 509 Cir. certainly most sentenc- be convicted and sentencing procedure The is not im- ed to death to if chose contest scrutiny mune pro- from under the duе guilt jury. apparently Appellee cess York, clause. Williams v. New hoped found unfit to that he would be supra, at n. 69 S.Ct. 1079. How- produced stand trial. After the evidence ever, appellee’s reliance on Townsend v. appellee’s sanity at Rule 250 Burke, 334 U.S. S.Ct. competent mentally showed him (1948) L.Ed. 1690 misplaced. law, advice appellee, with under Arizona record case, in this unlike Town- plea counsel, to withdraw decided send, does not indicate that the sentenc- guilty plea of guilty of not and enter ing judge assumptions relied on to each count. materially contrary were untrue. On the expected the contends that he appears every Judge Wren made imprison- judge impose life attempt to secure full and in- accurate ment, penalty, on rather than concerning formation proper sen- testimony psychiatric the basis of the Moreover, judge tence this case. produced hearing. sanity theOn at the disclosed the information which the day through sentencing, appellee, set for based, sentence was done in Wil- judge counsel, that the discovered liams, supra, impose penalty. decided the death Un- Verdugo States, Thus v. United 402 F.2d appellee sought derstandably, to with- 1968), application no has guilty plea draw his to avoid death. case this since the information was However, except self-serving for a claim any obtained in violation of constitution- legiti- innocence, appellee no offered al and the information was dis- withdrawing justify mate basis to closed to and his counsel. plea. judge, exercising his sound presentence therefore hold We law, discretion under Arizona refused to proceedings and sentence did not result plea.4 allow withdrawal signed 4. The explained his decision as fol- self, innumerable —I know don’t : bring your lows “Jir. Alford, subsequent how many subpoenaes, mandates — hearing, Large you prior arrest to this witnesses, other states. given legal every were avenue this sums court’s expended, were considered; your and on applica- order, expense money for those wit- application your tion and the attor- when nesses. All cancelled pursuant your ney, request, you plea prior matter entered * * * jury set for I, my- trial. you set trial. To allow with- date 316 may serving by Crim- then his Arizona Rules of be client best of the Rule 188 advising plead guilty to provides him to as follows: inal Procedure bargain for the lenient most treatment any at may discretion in its “The court strategy possible. To is counsel this plea permit of a sentence time before inadequately, not advise even if judg- and, if guilty be withdrawn expectation leniency subsequently is of entered been has conviction ment of thereon, disappointed’ (Emphasis supplied.) judgment, and such set aside Comment, Counsel, of Assistance 7[8] or, guilty, plea not of allow a 1434, 1441, (May Harv.L.Rev. a county attorney, allow of the consent Huff, U.S.App. And see Monroe v. 79 of- included plea guilty lesser of a (1944).” D.C. F.2d 145 249 degree the of- lesser fense, or of a federal standard withdrawal for the сharged, substituted to be fense guilty discretionary plea un- a is also plea guilty.” 32(d) der Rule of the Federal Rules interpret has rule been This Procedure, Criminal In United U.S.C. 18 Arizona many Su ed on occasions Ptomey, v. States F.2d 760 366 law, there preme Court. Under 1966), Appeals Court of plea of a to withdraw is no absolute Third Circuit stated: Rather, sentencing. guilty before guilty plea of “The withdrawal of a plea addressed is motion to a withdraw right. A is not a matter of motion court, of the trial the sound discretion guilty plea leave to a withdraw of that of clear abuse and in the absence guilty plea of not is and substitute a ruling not be will discretion the court’s discretion addressed the sound though the appeal. Even disturbed if the court denied and should be liberally be should trial court’s discretion understood what defendant knew and permitting with in favor of exercised being was done and there were showing drawal, there must be some force, present any circumstances of justice thereby State v. served. will mistake, misapprehension, fear, inad- Wilson, P.2d 903 95 Ariz. ignorance vertence or Valenzuela, ; (1964) Ariz. State understanding consequences of (1965). It not suf- 403 P.2d 286 *” * * plea. merely a defendant ficient show also, States, Miller v. 351 F.2d See United changed ad- was has where his mind 1965), denied, 382 U.S. 598 Cir. cert. proceed- counsel, vised understood 648,15 (1966). L.Ed.2d 540 coerced, ings, improperly was misappre- where there no mistake was There is no evidence that substantial consequences possible concerning hension charg- appellee not, fact, guilty аs Norgard, plea. 92 Ariz. of the 313, State v. apparent record that ed. It is from the Moreover, (1962). 376 P.2d 776 fully protected the trial Alford, pointed court out State guilty; changed plea when he 124, 131-132, Ariz. P.2d understood what was that he knew and being (1965) : fully done; discussed “ competent counsel experienced this decision with appraisal of the ‘An fully counsel; that such frequently advised indicates available evidence possible conse- was well aware defense that the chance successful a plea; quences not co- attorney that he was negligible. The defense henceforth, Every defendant, plea date, enter could after draw the County Attorney’s this plea trial date office has laid before proceedings, stop se- court, pursuant and could this trial order of and, reports court, pos- pre-sentence cure our their all the evidence in court, quest session, only the evi- all of made would not constitute Attorney’s County injustice pub- hands. but to dence manifest to them should

lic, precedent can be or not believe that ex- do feel ‍​‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​​​‌‍would be dangerous tremely law.” he the criminal law.

3X7 fraud; by fear, force, deny erced or and that structions relief on the habeas acting inadvertence, petition. he was not mistake, misapprehension. Judge MERRILL, (dissent- Circuit ing)

Appellee : contends that impression the the mistaken I judg- dissent and would affirm the testimony produced sanity at his My ment of the District Court. differ- mitigating qualify as evidence majority ence with part the relates V whiсh would result in a lesser sentence. opinion. of respects its In other I con- nothing This belief more than an cur. expectation leniency. of Under my judgment In of due denial law, sentencing judge did could and process in of violation the Fourteenth led obtain information which additional sentencing judge, for the in impose penalty. him to The imposing penalty, the death to resolve appellee’s expectation failure of to mate disputes crucial factual basis rialize is not kind mis of mistake or persons statements made to him apprehension justify which would allow subject under oath and not confronta- ing guilty plea to withdrawn. petitioner tion of or to his cross-examina- tion. Appellee also contends that did respeсts distinguish In two I other opportunity have an to confront types reserving cases, judgment as to cross-examine the of the court’s sources today apply the rule that such should in additional information. This contention cases. has been dealt with above in V opinion; it also is not sufficient 1. Sentences Other Than Death justify allowing See, withdrawal. Hoov- readily accept fact, emphasized States, er United 268 F.2d 787 Cir. majority, quite ordinarily function different relies our decision Jones its nature from that ascertainment Eyman, 1965), 353 F.2d 528 guilt. Further, these concede where the court a denial of due found may justify application differences well totality based of circum- of a different standard in the determina- surrounding stances the trial court’s process. tion of what constitutes due guilty plea fusal to allow a to be with- mandatory legislatively fixed and Appellee’s misplaced. drawn. reliance is rarity. becoming sentence is Jones, Sentenc- repeatedly In the defendant com- ing today (together with modifica- plained about lack of de- counsel and was permitted parole probation counsel; incriminating tions nied he made proceedings) cere- counsel; involves more than a being statements after denied legis- pronouncement monial of what plead guilty directly contrary fitting punish- prescribed lature has these advice of counsel. None ment. It involves informed exercise circumstances, indicating a denial of due administrative, discretion, essentially proсess, appellee’s appear in the record in determining how, the interests case. society, prisoner treated. should be York, say respect us, On the record In we cannot Williams v. New 241, 248, 1079, 1084, the trial court’s refusal allow (relied majority), L.Ed. plea to withdraw his notes, longer no dom- “Retribution is was an abuse discretion or a denial objective inant Ref- law. criminal process. of due ormation and rehabilitation offenders judgment of the district court goals important have become criminal twenty jurisprudence.” Certainly reversed in- and the ease remanded degree unmitigated It emphasis murder. in this first years Williams since hearing sentencing the de- is at the that has increased. direction goes life. for his fendant trial essentially administrative It to this is treаtment, which, is sentence Facts where a lesser manner of to determination as solely involved, may already be relevant due has defendant where the (e. g., prior question crim- liberty, of treatment for his that process tried been process background, family record, or inal social question consti- of what due illness) be- history here can of mental sen- fairness tutes fundamental aggravation/mitiga- come relevant to the tencing procedures directed.1 is quality on the tion issues bear and thus setting penalty sub- In the death disputes quantum guilt. or If of factual anomaly. It contem- does not as an sists presented respects the con- are in these It is an plate correction or treatment. process ap- of stitutional standards duе rejection is outright It such aims. of guilt propriate of to the ascertainment total retribution. instead should, apply then, their resolution. Today that the death it be said cannot Disputed Involving Not degree 2. Cases penalty mur- norm for first is the Facts imprison- life der and the choice of clemency on miti- ment gating an of based is act York, supra, which Williams v. New is common circumstances. It majority relies, not concerned knowledge not of that the choice disputes respecting with factual matters exception apparently the rule but the mitigation aggravation.2 of or It was the homicidal is reserved for cases where primarily concerned with whether due only unmitigat- malice is found to be process required evi- rules of aggravated. ed but apply dence fashioned for trial to should sentencing procedures. the problems It dealt with sentence, then, The death is not to be competence of and relevance. determina- likened the administrative sentencing, probation tions Here the crucial issue at the factual sentencing by of ordinarily time as tendered de- parole or found- decisions contrary fendant whether criminal acts his ed. the most awe- On product or de- truly judicial responsibilities: were the of mental illness some adjudication guilt aggravated fect.3 This issue was resolved an insanity. defining problems He show evidence real remain tion to That illness, by history had mental is made clear had clue Verdugo point opinion the Cali- been committed v. United at one this court’s Hospital (9th States, Stock- at fornia State Jlental 402 F.2d 599 ton, ordered a court California. sanity his com- determine 2. The states petence hear- At to stand trial. S.Ct. 1081: notes, opinion majority ing, accuracy Dr. “The made as statements judge appellant’s the defendant called back- Tucliler was opinion ground past practices in his defendant testified that were not (the counsel, challenged appellant law under Arizona sane or Rule) competent disregard M’Naghten stand asked nor was the probably trial; be a appellant any still “he would or to afford them any hospital ‍​‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​‌​​​‌​‌​‌‌​‌‌‌​​​‌‍rule.” the Durham case or chance to refute discredit expression other- take this them cross-examination opinion acts criminal the defendant’s wise.” product mental defect. were the Immediately testimony, following “in Insanity been the crucial issue had testimony,” light de- the doctors the start. At the outset the defendant guilty. changed pur- one of guilty, giving pdeaded fendant notice idea procedure to Arizona inten- suant defendant basis of out-of-court judge.4 statements made to the For the regard

reasons stated this as a denial process.

of due al., Huntington

Aldena et ENGLISH Township Committee on Human Re-

lations, Plaintiffs-Appellants, al.,

TOWN OF et HUNTINGTON Defendants-Appellees. No. Docket 71-1552. Oakes, Judge, Circuit dissented and Appeals, United States Court of opinion. filed Second Circuit. Argued July 16, 1971. Aug.

Decided imposing judge In stated: sentence the of the fact beneath each understand, Alford, they “I cannot hlr. a 45 bullet on bodies found caliber possesses man, ground.” what can kill that he ; three defenseless childrеn that he can so dis- stated that he was methodically, them, shooting after walk turbed the facts had ascertained place investigating around to each bodies officers through another bullet the heart Tuchler in Phoenix and called Dr. each, they dying lying while dead or informed him of the new evidence and that * * * ground changed opinion I did not the doctor had this, case, specting applicability learn of this factor of this rule. Durham you your guilty plea light until after entered In the new doctor facts the any I mental discussed the matter with the now stated “it was not attempting investigating officers, deficiency firing of the that caused cold, find out all the this case of a what facts in 45” but that “this was the act were, destroy any- calculating I in order arrive at could mind anxious just might testify what be a As later felt decision. one who stated, I did not until then learn him.”

Case Details

Case Name: Frank A. Eyman, Superintendent, Arizona State Penitentiary v. Robert Alford

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 28, 1971

Citation: 448 F.2d 306

Docket Number: 22274

Court Abbreviation: 9th Cir.