*1 966 by- testimony expert of an added witness. Appellee’s claim the merits permitting testify Buckles, Ry. witness added Pacific Co. v. an Texas & Cf. showing surprise genuine upon a Cir.), 257, (5th 232 260 cert. F.2d this, Appellee. He balanced 1052, 984, 351 100 interest, by permitting this
Appellant’s 1498 during deposed witness added alleged errors We have examined other testifying.1 before of court recess disturbing and find no basis adequаte alleged time Appellant lack judgment. examine notwith- preparation cross for standing pre- deposition taken Affirmed. However, day. must assume vious Appellant’s prepared to counsel expert opposing, med- all cross-examine expectation that on the ical witnesses testify
they consistent Appellant’s theory Appellee’s case. possible counsel did seek alternative, continuance as a such sought only to exclude He mistrial. testimony. Our recent the holding most added DIXON, Appellant, Miller A. subject apropos: v. pre-trial order But while beginning, never end be the COLUMBIA, Appellee. DISTRICT OF normally of a sort. matter of this No. 21084. subsequent “controls action,” course if it is “modified at but not Appeals Court of United States injus- prevent the trial manifest District of Columbia Circuit. tice.” The function does not discovery Argued 27, upon terminate is- Nov. 1967. unspecified, sue is but extends to a 16, April Decided 1968. to whether the ends determination as justice implore that the issue none- litiga- into theless introduced frequently
tion. This involves a competing
delicate balance of consider-
ations, from case variable soundly may be decision order irregu- perceptible absent made. And largely discre-
larity process so disturb the
tionary, loath we are
result. U.S.App. Ostrowski, 128
Manbeck v. (1967).2 970, 1, 6, 975 F.2d 384
D.C. not abuse
We hold pre he modified
his discretion when
case
order in
Engine Serv.,
n.
828
D.C.
362
v. Air Carrier
Laird
Cf.
1959).
(1964);
v.
n.
Meadow
Prods. Co.
Gold
Inc.,
F.2d 948
U.S.App.D.C.
Wright,
F.2d
Fairbairn,
Mut. Life Ins. Co.
McKey
Phoenix
120 U.S.
2. See also
Flynn,
U.S.App.D.C.
F.2d
App.D.C.
U.S.App.
DeBeve,
Gould
*2
ground
another continuance on the
one of the two
officers who had
witnessed
offenses was ill. The
judge, noting
many prior
continu-
ancеs,
one,
refused to
another
though
ap-
he stated that “if it became
parent
the other officer would be
needed on rebuttal the Court
would
adjourning
sider
the trial at the end of
day
the Government to
bring in
following day.”
its witness the
prosecutor
then
stated
enter
prosequi
a nolle
so that he could
reprosecute
court,
at a later date. The
howеver,
pro-
ordered the Government to
ceed with
and when the
refused,
tor
findings
directed that
guilty”
“not
be entered
to both
as
Ralph
Temple, Washington,
Mr.
J.
charges.
C.,
Barrington D.
D. with whom Messrs.
appealed
judg-
Ross,
Parker and Wm. Warfield
Wash-
ments to the District of Columbia Court
ington,
C.,
brief, for
D.
were on the
Appeals.
At the Government’s re-
appellant.
quest the
District
Columbia Court of
Corpora-
Sutton,
Mr.
P.
David
Asst.
Appeals
judge
ordered
confer
Columbia,
for the
tion Counsel
District
purpose
assuring
counsel
Duncan,
with whom Messrs.
T.
Charles
accuracy
judge’s
statement
Pair,
Corporation Counsel,
B.
Hubert
describing
leading
the events
to the find-
Counsel,
ings
Principal
Corporation
guilty. During
and
of not
Asst.
this confer-
ence,
prosecutor
Barton,
admitted that
Richard W.
Asst.
brought
аppel-
brief,
appellee.
Counsel, were on the
lant went back
Judge,
and
Before
Chief
Bazelon,
complaints
file
of misconduct
Judge,
K.
Circuit
Senior
Miller,
Wilbur
stopped
officers
him.
In his
Judge.
Circuit
McGowan,
argument
to the
Columbia
Appeals appellant
Court of
raised
issue,
asserting
Judge:
prose-
as
BAZELON,
well as
that the
Chief
right
cutor did
pros
not have the
to nоl
18, 1965, separate infor-
On October
the case.
Divi-
in the Criminal
mations were filed
The District
of General Sessions
Columbia Court of
sion of the
Appeals’
opinion
charging appellant
of-
brief
two traffic
dealt
with the
pros
nol
issue.
continued three
The court held
cases were
fenses.1 The
appellant,
right
request
of the
decide
when to
times
consent,
рros
except
nol
and once
a case
when that
mutual
three times
corrupt
is exercised “in a
request of the Government.
scandalous or
at the
requested manner,
‘capricious
shown to
March
allegedly
Appellant
traffic
of traffic.
violated the
See
D.C.Code § 40-603 au
thorizing
regulations
Dis
the District
motor vehicle
Columbia Com
obey
failing
by (a)
promulgate
regula
missioners to
traffic
trict of Columbia
officer;
given
penal
tions and enforce them
the instructions
criminal
stopping
(b)
in such
ties.
a vehicle
orderly flow
obstruct
manner as
”
charged
traffic offens-
the two
concluded was
vexatiously repetitious.’
En-
of the Law
As the then Chief
a case.
es.
appellant’s
not such
Columbia,
A.2d
forcement Division
Dixon v. Distriсt
explained:
13,1967).
(D.C.App.
Counsel
June
appellant’s conten-
consider
need
origi-
it back when
We
nally
discussed
*3
prose-
holding
the
allows
that this
tion
and,
every-
time,
at
occurred
the
nullify
over
control
to
court’s
cutor
forget
body
happy to
the whole
was
appellant
* * *
believe
continuances because
thing
But
three months
this
has demonstrated
a formal
he
and makes
later
comes
brought.
impermissibly
prosecution was
you
complaint.
‘If
So we said
Accordingly,
District
of the
the decisions
why
going
play ball
like
to
that
Appeals and
of
Columbia Court
proceed
case?’
with our
shouldn’t we
should
* * *
General Sessions
until
I had no reason to file
vacated,
dismissed.
and the
understanding
changed
he
on
back
his
agreed
This
аll
on.
of what we had
many
done in
cases.
is
embarrassment,
story
prosecu-
Although
Without
not
the full
do
know
gross
appellant,
tor in this
has admitted to
prosecute
case
decision to
of the
Of course
reasonably
abuse
discretion.
On June
clear.
is
the outline
6,
press
police
to
or
tors have broad discretion
stopped
appellant
chаrges.
If,
drop
But there are limits.
alleged
violations.
traffic
for
officers
legiti-
example,
for
mately
the Government
charged
nor ticketed
He
neither
ap-
prosecute
to
appellant
determined not
days later,
de-
Two
time.
position
pellant
police
and had then reversed its
complaint
to
a written
livered
department
solely
cоmplaint,
concerning
he filed a
because
conduct
clearly
would
first amend-
stopped
At
violate the
him.
who had
the officers
may
prose-
ment. The
not
Corporation
appellant
point
and the
purpose
deterring people
cute for the
apparently
into
office
entered
Counsel’s
exercising
protest
to
agreement: appellant
not
a tacit
petition
re-
complaint
official
misconduct
proceed further with his
grievances. Moreover, prose-
dress
prosecute the
the Government would
cution
charges.2
under such circumstances would
traffic
clause,3
equal protection
be barred
1965, however, appel-
September
employs
imper-
sinсe the
complaint
a formal
with the
lant filed
punishes
missible classification when it
Columbia Commission’s
complain against police
those who
mis-
After
Relations.
on Human
Council
conduct and excuses
not.4
those who do
“hearings” at
some
case, however,
Appellant’s
com-
office, appellant
is more
refused
Counsel’s
plicated.
indicates that
complaint.
result
record
As a
withdraw
Sharpe,
particularly
may
2. The
have
appellant’s
complaint
be-
concerned
sergeant
retired detective
he was a
cause
Hopkins,
easily
4. Yick
Wo
373-
be accused
and thus could
(1886)
“police
raising exaggerated
prosecute
tenta-
for use
was based
pression
complaint.
danger
proceed
tive
complaint.
charges
great
particularly
be naive
concocted
would therefore
say
complaints against
made
because
usually
the Government
legitimate
not to
аrise in connection
decision
with arrests
solely
appellant
extremely vague
for
orderly
then
it
reversed
offenses such
dis-
as
contrary,
complain.
resisting
decided to
On the
conduct or
arrest.6
may be that
have
should
Courts
not becomethe “enforcers”
prosecuted Dixon
and that its failure
agreements.
of these odious
We must
illegitimate
do
de-
so stemmed from an
therefore bar
which are
sire
the two
officers.
brought because the defendant refused
if
And
the Government
should
promise
reneged
promise
on a
*4
prosecuted
place,
Dixon in
there
the first
complaint against
police.
to file a
arguably
why
be
no reason
it should
Prosecutors will then have no incentive
prosecuting
barred frоm
him now.
agreements.7
to offer or make such
But I believe reason is to be found in
recognize
I
that
some contro
there is
prevent
agreement
type
the need to
of
versy as to whether the federal courts
attempted
in
case. These
this
supervisory power
can use their
agreements
publicly
have been
immunity
prosecution.
ques
from
The
by
demned
of
Dis-
Government
regard
tion has arisen with
to the en
February
trict
Columbia.
In
of
1964 trapment defense. In Sorrells v. United
the President of the Board
Commis-
of
States,
287 U.S.
sioners of the
Columbia an-
(1932),
Supreme
nounced that
stated that this
on
defense was not based
power
grant immunity
Counsel states that
be
has issued
to his staff
misconduct,
directions
forth-
cause of Government
but on
practice
with to
legislative
discontinue the
intent not to convict en
demanding
trapped
releases
claims
persons.
Roberts, joined
[of
Justice
exchange
in
by
for the
Stone, argued
officers]
Justices Brandéis and
dropping
charges,
that,
contrary,
on the
and
to allow
the “true founda
in
entrapment
discretion
manner of a
tion”
defense was the
prosequi
nolle
to be influenced
a de-
power
protect
purity
court’s
“the
sire to
and exonerate the ar-
government
processes.”
its
and
287 U.S.
resting
liability.5
officer from civil
at
53 S.Ct. at
In
217.
Sherman
States,
justices again
United
four
main
major
agreements
evil of these
charges
dropped
tained that the defense was based on “a
that
are sometimes
against people
probably
supervisory jurisdiction
should be
over the adminis
prosecuted.
important,
justice”
Much
more
these
tration
criminal
rather than
agreements suppress complaints against
legislative
369, 381,
intent.
819, 825,
misconduct
which should
thor-
78 S.Ct.