Marshall A. Contee v. United States
410 F.2d 249
D.C. Cir.
1969
Check Treatment

*1 pre rules, of abandonment each random recognized governing precepts viously CONTEE, Appellant, A. Marshall Gyges ring be operates like —it invisibility upon blessing of stows the America, UNITED STATES of admissibility regulating of evi standards Appellee. meanwhile, dence. migraine compounded energies (while judges their redouble objective certainty forgetting Argued Oct. misshape law) es to distort and reach re in order to tablished rules Decided Feb. particular is harmo sult in a case which proper di nious view society. From the everbuild

rection ing disarray discourse of directionless rulings

these constitute “derelict[s] law,” basically the by created waters accuracy pro find courts which uninteresting quality.

cedure indulging logoma-

Without further age repeat

chy, I old axiom “bad law.” we have a cases make bad Here legal re- “bad case” traditional with the then, majority, admit

sult. The off-duty laborer, made

statement of an

completely scope his em- outside concerning

ployment and conduct com- nature,

pletely scope, unrelated

purpose employment, of that bounds he, concerning occurrence when after night drinking orgy, an all was a tres-

passer premises, upon employer’s out- days) (and apparently hours

side the employee employment.

of his has The disappeared. consequently He is una- Cobb, Mr. Washington, David D. C. examination, (appointed vailable for cross court), appellant. normally go into the de- factors that Mr. Gibelber, Daniel J. Asst. U. S. credibility of a are Atty., termination witness’ with whom Bress, Messrs. David G. completely Atty., the trier of U. Q. S. withheld Nebeker, Frank Asst. Atty., U. S. majority brief, were on appel- facts. I cannot subscribe to lee. puts a action which admissible label Before upon Judge, a statement Chief Pretty Bazelon, man, Senior Circuit this laborer’s ludicrous conclusion that Tamm, Judge. pecuni- employment constituted such guarantee ary interest financial BAZELON, Judge: Chief accuracy of this statement. Appellant murdered his wife with an my colleagues’ tragic in ax night their bedroom ruling gross enlargement of the is a turned police. himself in to His expense part principal the whole. at the defense at insanity, California, (dissenting 355 U.S. 2. Lambert v. Justice Frank- (1957) 240, 245, furter) L.Ed.2d 78 S.Ct. . *2 250 insanity Higgins v. premeditation. stantial

though States, U.S.App.D.C. mur- 401 130 for United conviction appeal from his this 28, 1968); (decided degree, and F.2d June 396 contends first der in the benying request re- where the unnecessarily for bifurcation in court erred the trial upon impanel- the on conditioned the trial quest for bifurcation ing juries, separate Parman v. issue two the trial merits from States, U.S.App.D.C. v. 130 399 United responsibility, under Holmes criminal 20, 1968). (decided May States, 363 F.2d 559 How- U.S.App.D.C. 124 United ever, a exercise of the trial court’s sound (1966). F.2d 281 ordinarily discretion in bifur- will a for pre-trial motion support of his cation whenever a defendant shows trial, the told counsel defense bifurcated a he has substantial self-defense a case for he had court a substantial the defense on merits charged against the a case charge, element of the either degree mur- first for in the indictment prejudiced by simultane- would be jury con- the would afraid der. He presentation ous with the other. the defenses .and fuse these doubt, question cases of the should insanity de- thereto with relevant in solved the favor of bifurcation where fense, some evidence included responsibility evidence on criminal Spe- defenses. consistent with significantly overlap the cifically, statement— he cited the merits and where same can the pentothal inter- fairly determine both issues. In such introduced as towas view which cases, judicial little time bewill lost diagnoses psychiatric basis for —that separating addition, issues. planned for several he had to kill his wife many prom- such cases bifurcation holds However, it- trusted months. economy ise of a substantial prevent confusion and offered self to resources, acquittal since an on the mer- pentothal inter- the sodium strike from altogether its will eliminate fre- prejudicial concern- view the admission quently long complex testimony issue. that, offer, saying counsel declined psychi- accepted, if it would render the Holmes, supra, unitary As noted in reports incomplete. atric concluded involving trial both the merits that, unitary in a he would responsibility replete issue of criminal argue fear potential with sources of Ac- adverse reaction to such cordingly, especially since cost of bi- against set the sodium contention when furcation to substantial state interests is he had declined statement negative, often minimal or even contends now stricken. sep- court should alert need for that the evidence introduced in connec- pro- arate trials whenever accused tion included with poses present insanity defense, matter, much additional called regardless of whether defense counsel highly attention, trial court’s which was request initially makes an initial or an on merits. to his defenses sufficient of need. In area others, the realities of the con- instance lies in first Bifurcation temporary process, criminal in which of the “sound discretion” commonly indigent defendants are often Holmes United court. represented by counsel unfamiliar 154, 363 the Holmes F.2d 284. Since at decision, pro- intricacies criminal law and de have refused reverse cedure, require the trial court’s active the defendant of bifurcation where nials concern to insure the fairness merits no trial. denial, Harried v. United a bare besides time, however, even when States, U.S.App.D.C. F.2d At the same court must de- (1967); takes initiative the no sub- lack of bifurcation rant largely counsel on defense pend case. the circumstances of this court information. relevant come counsel inquire did, sub- ordinarily can forward, of murder to the stantial defense inquiries. degree namely, pre- answer lack of in the — first *3 that record, conclude cannot we evidence meditation. Government’s his neglected misunderstood judge though sufficient, premeditation, only a made weak, appellant’s relatively duties. testi- prejudice, showing negated believed, any minimal mony, if conscious- only to strike offered design the court ly kill his wife. formulated to that source testimony, presenting identifiable an This while good to reason had have Counsel to amount affirmative “ given reason— offer, his beyond putting decline Govern- ‘defense’ psy- resulting incompleteness of meaning proof” ment to its cogent hardly so chiatric record —was at of Harried v. United instead. compel bifurcation Harried, to In the defend- 389 F.2d reasonably could it knew what offense; basis of simply in those ant discover, not think we do expected to be to see how circumstances “fail[ed] we deny- its discretion abused prejudice to the de- be [could] motion to bifurcate. to failure fense merits due case, bifurcate.” Id. that de- contend testimony appellant’s presented affirma- the more make failure fense counsel’s the absence of tive evidence from which prejudice he al- inferred; could be to in- legedly amounted could have degree this defense to the first murder counsel, nor does assistance effective plainly prejudiced could compel a conclusion. the record support other evidence introduced is However, especially the stake an defense. indigent de- imprisonment life acquiesce fendant, in man- court cannot some cites as merely injustice the in- because ifest he made in his statements neglect of trial experience or excusable might interview Thus, abuse counsel. imply premeditation. He been taken to made, aof the denial discretion when relating complains that the evidence may nonetheless motion for bifurcation informed his require circumstances some guilty he been of a carnal that had new trial. 13-year-old stepdaughter, assault on his severely case, that he had often beaten his shows the record the instant women, children, brutally attacked other “abandoning” de- that his self-defense furniture, sacrificing any- and broken the household fense, appellant (according psychia- that to a rebuttal thing The sole evidence of value. might malingerer. Appel- trist) might be a been says testimony lant could that after all this no ferred was own weigh expected dispassionately top his wife that he awoke to find properly considered in ad- spurting from cuts on him with blood off, judicating merits. pushing After his wife arms. hand, correctly standing the Government *4 I concur in the affirmation of this conviction, do not con- but I portion Judge

cur in that BAZELON’S principles which discusses lating to the merits or demerits of

bifurcated trial.

PRETTYMAN, Senior Circuit

concurs the result. DEFENSE, Appellant, OF

SECRETARY BONG, Appellee.

Le Khac

Argued Jan.

Decided March notes thing “devil” next saw was gave that much in fact wife, whereupon appellant over plausibility substance and passed at that did an ax out. not see impulsively claim that he killed and with- axing It wife. time or recall out And Government would have doubtful this evidence earnestly contends, did at required on self-defense an instruction event, the dominant thrust of the extensive tes- any requested. one been bearing timony admitted insubstantial war- we think it is too bolster, rath- undercut, appellant’s er than to After examina- merits. careful record, are tion of we this voluminous unable to confidence determine appellant helped whether was on balance circumstances, or hurt. In these ruling, think the court’s reasonable made, when must stand. Affirmed. TAMM, Judge (concurring in result):