Nathaniel Brown v. Dr. George J. Beto, Director, Texas Department of Corrections

Owsley, Jr., pro Mr. Alvin R. as counsel to se. Nathaniel Brown represent two-day evi- Brown. After Wag- Atty. Gen., Pena, J. Asst. Gilbert dentiary hearing, found the district court Gen., goner Atty. Phil- Carr, Hawthorne regard testimony his that Brown’s Wright, Atty. Gen., lips, T. B. First Asst. incredible; confession was was that he Atty. Gen., M. Howard Asst. Executive not denied effective assistance coun- Tex., Gen., Austin, Fender, Atty. Asst. sel; was that George appellee Beto. J. Dr. voluntarily entered. The court denied WISDOM, Circuit Before RIVES and petition. The district thanked CONNALLY, Judges, District Owsley prison- Mr. for his services to the Judge. er and him to the court and relieved obligation except further that of Judge: WISDOM, Circuit filing appeal. Brown, notice (1) proceeding involves This habeas person, appeals pauperis in forma proper challenge prisoner’s to his commit- from the below. when, if either under sentences ment two petitioner’s two-page handwritten valid, entitled he would not be clearly appeal brief on does not articulate release; validity (2) aof immediate con- the basis for attack on two his apparently resulted contentions, victions. To understand agreement from a between therefore, transcript turn to the we (3) prisoner prosecutor; and the hearings. attorney, open- His in his general prisoner’s charge ing statement attacked both attorney incompetent. affirm was We grounds: following convictions on the the district court’s dismissal (1) Brown was convicted twice petition corpus. for habeas confession; (2) had result of a coerced confession no at time the I. counsel allegedly extorted; did was August in the District Court of counsel. have the effective assistance Texas, petitioner, County, of Dallas into third is subdivided contention charged Brown, Nathaniel in two (a) lack of assistance effective robbery indictments the offense of with during No. his trial in Cause firearms. The offense carries (b) assist- of effective the lack possible penalty. death Penal Vernon’s during plea. of counsel ance Code, appointed Art. 1408. The court attorney specifi- nor his Neither Brown represent counsel to Brown. Brown went cally guilty plea was contended to trial in No. found ap- bargaining it the result of jury, and was sentenced parent at contention was years imprisonment. lat- Several weeks argument plea was heart of the er, case, in the other No. the state Attorney voluntary. The Assistant moved strike the firearms count of the representing state General indictment so that then Brown was brought hearing into issue habeas charged robbery by assault, with open: carrying years an offense a term of five assume, imprisonment. guilty. pleaded safely to life He “I that we can think imposed thirty- Brown, The court a sentence of that Nathaniel Your Honor years charge charged five to run con- two indictments who was currently robbery by firearms, with the other carries twenty-five years. appeal penalty, could Brown took no that he the death knew get 280; penalty. Dunlap Swope, tried death He was 9 Cir. jury, jury gave 19; Squier, once him 103 F.2d Demaurez v. years. 960; He must have known that Cir. 121 F.2d Graham again 348; Squier, Mc was tried he could receive 9 Cir. 1945, Johnston, penalty. death the 9 149 Donald v. Cir. 1951, 768; Swope, Cir. F.2d Oddo 9 v. “I do assume believe that Court can Heinze, 492; F.2d 9 193 Woollomes v. that, guilty plea,

from from the 1952, also Cir. F.2d 577. See Wells 198 thought cop he not it best to out and California, People 9 v. of the State again.” jury a take chance with the 1965, prison a Cir. F.2d 439. There 352 II. weapon possessing er a was convicted prison. life. in was at thirty-five term fixed The The sentence serving was con years While he this sentence imposed in No. runs Cause 1767 assaulting guard. concurrently twenty- victed of a Under with the sentence of Code, he was California Penal because years five in now No. 1768. As the law pen commitment, under a the death stands, life if the Court determine should (later alty was commuted thirty-five year assessed is sentence validity life). He of the attacked the pre constitutionally valid, it would be danger conviction, possession first ques mature for the Court to determine weapon. not con The involving ous court tions lawfulness habeas sider issues raised in the prisoner’s detention in No. 1768. petition. Unit mandate of Supreme “The controlling Court stated Supreme ed clear and is States principle McNally Hill, 1934, in v. forceful, corpus writ of habeas 137, 131, 24, 27, 293 U.S. 55 L. 79 —the S.Ct. may courts not be in the federal used Ed. 238: securing judicial as de a means of “There is no warrant in either which, question deter cision of even statute or the writ for its to invoke use favor, prisoner’s not could mined in the judicial questions determination result in his immediate release.” which could not affect lawfulness F.2d at 443. custody and no and detention suggestion of such a use has been in and in instant facts Wells Eng- found in the analogous commentaries on the in case are situation lish common law.” prisoner the crime which a is convicted of escape serving allegedly inval- while an Gray, The Ninth Circuit said in Wilson id release sentence. He is not entitled to 1965, 282, 345 F.2d 284: “It is well petition. on a “This habeas may settled that federal court not issue (for escape) was not affected corpus a writ of habeas set aside an being validity served sentences judgment invalid and commitment where escape, and it had the time of petitioner custody is also held in petition been the time this was served at under a lawful and commit- * * * corpus is available submitted. Habeas short, ment. In writ of only prisoner im- when the entitled corpus only habeas in available situa- Taylor, mediate release.” Crawford v. discharge custody tions where from will 197, 1961, Cir. granting result from the of relief.” Swope, Beto, Lee v. 225 F. 9 Cir. In Hendrick v. S.D.Tex. prisoner 2d prisoner the court in F.Supp. held that was custody unexpired in under two custody separate sentences He in six causes. corpus charge burglary pleaded guilty not entitled to habeas challange only one, trial, since if either in After Cause No. 91265. charged, valid he would not be immedi entitled to was sen- found parte ate imprisonment relief. The court cited Ex habitu- tenced to as an life 791; Melendez, pleaded guilty in oth- Cir. al He criminal. McNealy Johnston, er in each was sen- 9 Cir. five case causes premature fenced to confinement for not more than miss as a habeas attack on years. (1) prisoner ten attacked of the other sentences. burglary conviction for an ha- using Hendrick, The district bitual 91526 on criminal Cause No. razor, Occam’s decided one issue: grounds and number of constitutional right defendant’s under law to Texas allegation attacking, joint- made one require the to introduce evidence state ly, all the convictions in the five causes corroborating guilty plea “does pleaded guilty. The he had rise to Constitutional stature”. Similar- court, citing Swope, noted district Lee v. ly, validity we elect to first consider that: prisoner’s conviction allegation “[Tjhere is one which of Cause No. 1767 because attacks, jointly, convictions complex all the issues are fewer and less than addition, the five causes in which there plea those in No. 1768. In is there guilty. If, respondent something considering as the to said for first attacking urges, allegation validity since, longer the the group valid, of five convictions is not sustain- if that sentence is attack a habeas ed, to petition would have then the on the shorter sentence never mature. will being premature.” be dismissed as III. 994, F.Supp. 253 995. No federal court has held that The court held that was no consti- there guilty plea by prosecutor’s induced for on five tutional basis the attack the promise for that reason involun alone is sentences. circumstances: these tary. States, In Machibroda v. United being petitioner held under is “[T]he 1962, 487, 510, 493, 368 U.S. 82 S.Ct. subject five are not sentences which 513, 473, Supreme 7 L.Ed.2d Court attack, to court constitutional by “guilty plea, said that a if induced validity inquire will not petitioner’s into the promises deprive it of threats which re- detention under voluntary the character of a act is void.” way maining This in no sentence. alleged But in Machibroda the defendant petitioner’s right present vitiates to Attorney had United States concerning questions constitutional promised lenient the defendant more remaining is sentence when time imposed sentence than the court that, petition such if the writ for the had tell cautioned the defendant not to corpus granted, peti- of habeas were attorney arrangement. plea their custody. tioner could be from released uncertainty “Much of the current about being present petitioner At time is legal status of discussions and constitutionally held on valid sentences. plea agreements is attributable respondent’s motion to dismiss States”, case of Cir. Shelton v. United 5 F.Supp. well taken.” 996. 253 994 at rehearing, 101, on rev’d This Court affirmed the district court (en banc), 246 F.2d 571 rev’d 356 U.S. per opinion. ain F.2d curiam 360 618 78 S.Ct. 2 L.Ed.2d 579 (1966). (per curiam).1 pleaded to Shelton hold, therefore, pris transporting We a stolen vehicle and received serving sentences, oner year or more prison two one term. He moved ground and if the court should determine that vacate the conviction on the valid, one of these having the court should dis- voluntary, was not been Relating Guilty, Brewster, Livingson Hall, Standards Pleas E. Walter Advisory Hoffman, Kennison, Recommended Committee Frank R. Charles Trial, Price, on Murray, the Criminal American Bar As B. M. Earl G. John Project sociation Raiclile, on Minimum Standards Earl F. T. Thomas William Justice, (cited Tompkins. article, for Criminal hereafter See also excellent Guilty), Yetri, Guilty Bargaining: Compro Pleas of 64. The Committee is Plea composed Schaefer, of: Guilty Walter V. Chair mises Prosecutors Secure man, Wayne LaFave, Reporter, Pleas, (1964). R. Leo 112 865 U.Pa.L.Rev. m (Judges year promise Hutcheson for the Court induced a one concurring) test: stated denied Cameron

sentence. district court finding plead- motion on the Shelton appears wheth- “The crucial issue to be ed with full com- him, er, facts before with all him, and that all mitments competent including advice prosecution kept. promises This were voluntary. truly counsel, plea was Brown) Tuttle, (Judges Rives, Court lays Supreme no other down 242 F.2d 101. vacated the sentence. findings trial The fact test. Judge Court; Judge Rives wrote should voluntariness banc, rehearing en Tuttle dissented. On clearly issue on the be reviewed volun- the court held that 256 F.2d at erroneous test.” tary. Judge 246 F.2d 571. Tuttle wrote followed Later of this Court decisions Court; Judges Rives and States, M artin: v. United Sorrenti majority dissented. The formulated Cir., denied F.2d cert. 5 306 following of voluntariness: test (1963); U.S. S.Ct. Cir., Holman, 1966, Busby F.2d one entered “[A] Holman, 75; 1966, Cir., 356 Cooper fully consequences, aware of the direct Cir., Beto, 1965, 82; Williams v. including actual value of com- 354 F.2d 698. court, by made him the mitments counsel, prosecutor, must or his own Holman, the Busby as in In by (or argued stand unless induced threats case, appellant that instant the promises improper har- illegally to discontinue obtained “his confession was (including assment), misrepresentation he and because because it was coerced promises), (cid:127)unfulfilled or unfulfillable of coun was accorded assistance not the * * * by by perhaps promises that (cid:127)or are given. that sel it time was the having improper no their nature by alleged of of these violations reason proper relationship prosecutor’s rights subsequent his his constitutional g. bribes).” (e. business plea guilty in on his of conviction opinion In an valid.” 356 F.2d at 77. certiorari, en- On the General Solicitor sitting designation, Maris, by by Judge the tered confession of error pointed no the that there Court out Supreme in a memoran- Court reversed to the contention: merit stating: opinion “Upon con- dum not offered “For confession was con- sideration of the entire record and fact in in of the evidence view by fession of the Solicitor General error guilty appellant pleaded guilty may plea of have been question legality relevant of its judgment improperly obtained, present proceedings Appeals United Court of States may have it affected extent the case Fifth is reversed and Circuit voluntary appellant’s character Court the District remanded plea. of author- It a host is settled proceedings.” 356 U.S. further plea on ities that a 563, 2 L.Ed.2d S.Ct. guilty volun- has entered which been tarily counsel Supreme advice Court’s action Shelton the defendant approved because it rendered invalid (cid:127)does mean under previously confession opinion, does made a majority neither had but Court’s might ren- dissenting opinion which ex circumstances it mean if express in evidence pressed law it inadmissible dered the law “or that guilty pleaded not So had erroneous”. the defendant ed Court was so again gone This is trial. it faced and had held when voluntarily plea, agreement plea problem. Martin because the made, understandingly is conclusive States, 5 Cir. United admitting guilt, all denied, S.Ct. to the defendant’s 358 U.S. cert. waiving Tuttle, charged Judge all facts 3 L.Ed.2d non-jurisdictional prior plea defects in “voluntarily that Brown’s was made against judg- proceedings understanding” him. charge: plea ment and sentence which follow guilty plead “THE COURT: You guilty upon solely are based you guilty are because or because of plea upon which and not evidence hope promise some of reward or may acquired improperly have been parole ? Accordingly, prosecutor. a con- DEFENDANT: I ’Cause am. prose- possession fession Now, THE COURT: I can’t take illegally cutor which has been obtained you just say you ‘guess’ you it if can. for a col- cannot be the basis yes, am, DEFENDANT: ’Cause I upon judgment of con- lateral attack sir, guilty. ’Cause I am viction entered voluntarily understandably know, you made.” THE COURT: I you guilty didn’t 356 F.2d at 77. talk like that. Are or not? (giving Busby, as also in this case doubt) Brown the benefit of the DEFENDANT: Yes. appellant contended that his THE COURT: I take can’t knowledge says, may was influenced his from a man that T guilty,’ something fact that had he made a confession else. mistakenly used assumed could be Well, guilty. DEFENDANT: I’m against trial, him at and that your THE COURT: You do this of was, therefore, plead decision Anybody you own free will? forced involuntary. appellant ad- had the to, you any way? threatened making competent vice of DEFENDANT: No. guilty. The court said: you promises THE Made COURT: called district court was not “[T]he any of kind? try the merits of the advice promises, no given DEFENDANT: No by appellant counsel to the promises. merely to that determine completely inept incompetent not so and THE You understand COURT: proceedings as to render a farce. you guilty Court must find and assess ap- The district court found that your punishment five not less than at pellant of was afforded the assistance years, peni- nor than life in more competent counsel. We are satisfied tentiary? You understand that? amply supports that that the record DEFENDANT: Yes. finding. ap- Indeed the fact that pellant today may right, a alive well be ac- All THE COURT: cepts your testimonial to it.” at 80. plea.” Rule 11 of Crim- the Federal Rules of interrogation by the Court After general provides inal a stand- Procedure stipulated attorneys read into the record binding, accepting guilty plea ard attorneys agreed testimony course, in the federal courts: open himself “and defendant * ** may plead “A defendant a recital of court”. This included guilty or, court, robbery with the relating consent facts may testify nolo re- contendere. witnesses would the state’s accept guilty, fuse to court, present waiver the defendant’s accept right shall not without first confronted of his to be determining him”, against that “both for and witnesses voluntarily admission and the defendant’s charge.” (Emphasis (confes- voluntary nature “made a statement” added.) “he having sion) been warned after any judge statement great pains The state trial not need to make took did any would questioning all, that he statement himself Brown to assure against Q. you pleading guilty And used him are make would be evi- your you own ? offered free will Were

dence”. any promise ? of reward or threats rested, proceeding After the State was as follows: No, A. no. says the De- “THE COURT: What Q. you plead You because fendant? guilty? are (Attorney MR. CROWELL A. Yes.” defendant): stipulated. So record, up. interpret As we Come THE COURT: n received no promise prosecutor from has The defendant MR. CROWELL: impose the trial rights, Your Honor. advised

been lighter in- sentence in No. 1767. The right your up Hold THE COURT: prosecutor’s promise ducement was the hand. charged robbery to reduce the offense to by assault, thereby eliminating pos- BROWN NATHANIEL sibility penalty giving of the death duly being sworn after defendant hope two accused some as follows: testified concurrently sentences would run or that confirm him Let THE COURT: the sentence in No. no would be guilt. heavier than the sentence in No. 1768. DIRECT EXAMINATION safeguarded Properly plea discus BY MR. CROWELL: agreements an sions between prosecutor consistent Q. accused are testimony You heard the justice. Attorney fair you with the administration Are District here. They “pervasive practice. are guilty of that offense? great majority are criminal cases Yes, A. I am. by pleas guilty, disposed Q. you And did what the state- pleas are substantial number these you says did? ment dealings prior the result between prosecutor or his att and the defendant said: A. the statement What suggested orney”.2 re standards was, testimony Q. Well, what recently guilty lating pleas recom to of sign voluntary in you did a statement by Advisory on mended Committee you guilty case? Are of Bar to the American the Criminal Trial ? offense Project on Minimum Stand Association recognize Yes, “the A. sir. for Criminal Justice ards Propriety plea oppose (i) 2. and discussions not favor- of to make or to “3.1 plea agreements. recommendations as sen- able appears imposed (a) in which it if the cases which should be tence public plea guilty effective or nolo of the in the a of interest defendant enters justice (as contendere; criminal of administration thereby 1.8) oppose (ii) be not in section to or to charged dis- stated served, seek may attorney prosecuting en- if the of offense missal purpose plea plea gage discussions for the a or nolo in defendant of enters reaching plea agreement. He should of another offense reason- contendere to plea conduct; ably engage in or reach a or discussions to-defendant’s related oppose plea (iii) agreement with the defendant to or not to dis- seek counsel, except potential through charges when of other or defense missal eligible charges against not for or enters defendant does defendant appointment plea of and nolo counsel has of or contendere. desire Similarly (c) situated defendants should not retained counsel. prosecuting equal plea agreement oppor- (b) attorney, in reach- afforded be may agree Guilty plea agreement, ing to one of 60. or tunities.” Pleas following, of the dictated more case: circumstances of individual propriety plea plea charge of discussions possible the extent of the agreements”.3 punishment. If, appears, the induce- ment was a reduction in the offense distinguish These standards between charged, prosecutor his fulfilled judge of the trial of the role and that promise. nothing There is in record prosecutor.4 judge “The trial should to indicate that the inducement was the participate A discussions.” prosecutor’s representation the trial agreement by judge the trial impose court would the same or lesser may carry connotation defendant imposed sentence than in the case that bargain unseemly of mal- an between a tried, No. 1768. infer We cannot judge, efactor and almost Justice. The promise. such petitioner sentencing all-powerful capacity, in his a deliberate he measured choice: protecting duty an has of accused’s charge lighter traded his defenses for a duty rights constitutional as well as the hope lighter in the of a And sentence. protecting society’s law interest judge himself, the trial satisfied after attorneys, Prosecuting enforcement.6 examination, a careful that Brown under- however, traditionally had broad pleaded stood his charges authority to institute criminal of his own will. Brown is bound free charges terms and to evaluate plea. society’s eases.7 interest individual prosecutor When the and the accused IY. conflicting agreement enter into their an merge. And, the aid of interests large part transcript A judge, both counsel and an accused hearing general the habeas relates to the protected improvident involun- from competency attorney appointed to tary agreements. represent in the two state cases. incompeteney “The actual standard admitted Nathaniel Brown guilt applied overwhelming majority without reservation. He acted attorney. competent His advice of Incompetency courts is stated as follows: judge’s questions the trial answers to process counsel such as a denial of due voluntarily and with show that he acted representation and effective nature farce, must such as the trial a make Guilty 3. Pleas of unequal positions judge accused, power and the one with the “There a number of valid reasons are prison deeply commit and the other keeping judge out of the trial prison, concerned to avoid at once raise discussions, including following: question fundamental fairness. judicial participation in the discussions participant When a becomes a impression can in the mind of create plea bargaining brings he to bear the defendant would not receive a he majesty full force and of his office. His go fair trial trial were before power impose substantially awesome to judge; (2) judicial participation longer or even maximum sentence in ex- the discussion makes it difficult for the proposed present cess is whether judge objectively to determine volun- referred to or not. A defendant needs offered; tariness it when reject pro- no reminder if he (3) judicial participation to the extent of posal, right stands his to trial and promising a certain sentence is incon- convicted, significantly he faces a theory sistent with the behind the use of longer sentence. presentence investigation report; and Gilligan, United States ex rel. Elksnis v. going along the risk of not with the F.Supp. 244, (S.D.N.Y.1866).” 256 254 disposition apparently desired Guilty, Commentary, Pleas of 73. judge may great seem so to the defendant plead that he will be induced to Guilty 5. Pleas of Comment, if even innocent. 32 U.Chi.L. 6. See United States ex rel. Elkonis 167, (1964); Note, Rev. 180-83 112 U. Gilligan, S.D.N.Y.1966, F.Supp. 244. 865, (1964); Pa.L.Rev. 891-92 Note 55 366, (1955). point- Colum.L.Rev. Tateo, As 7. See United States S.D.N.Y. ed out in F.Supp. a recent case: sham, mockery justice.”8 This to determination. this Court review that necessary not has defined “effective counsel” Such review thirty-five year subsequent of a “reasonable counsel” stand if Brown's terms right interpret his in Case “We counsel as under ard : to sentence right and inter sustained effective counsel. We No. 1767 were year twenty-five not pret sentence did coun counsel mean not errorless earlier operate inducing later sel, judged cause as an and counsel ineffective Realistically reasonably likely thirty-five hindsight, year sentence. counsel but however, rendering reasonably considered, sentences ef the two to render and Ellis, closely district Before the related. fective assistance.” McKenna v. were following denied 368 testified to Cir. court Brown cert. just first 7 L.Ed.2d 78 after U.S. S.Ct. occurrences (1961). agree By imposed: test, either we with was the court below. walk- D. A. turned “A. After the away, later minutes five or ten ed Although attorney from Brown's lawyer my he back came time to out time had branched into small said, have ‘You he came back practice businesses when he found the cop why already years unrewarding, say law cannot we out for ease’. clearly the district was erroneous court finding, out’, you “Q. Okay. By ‘cop took “Petitioner not denied was any guilty? plead at effective assistance of counsel to mean * * * time denial there was no [and] Yes, “A. sir. of counsel at the confession time [the] “Q. out with the State Trade subsequent made or at was time some sentence? thereto.” The record contains substan Yes, “A. sir. evidence, tial credited, which the court must suggest “Q. did What inducement charges refuting specific Why you? think that did he attorney ef not in fact render did idea? such a keen was fective assistance. already have 25 said, “A. He ‘You is affirmed. your years, why a chance take life?’ RIVES, Judge (concurring Circuit cop- you “Q. you get if were What specially): ped out? In Case No. Nathaniel Brown years, 10' Thirty-five was “A. pleaded and was tried before already had.” years I than more jury. jury him found orally testify only witness to punishment other assessed his confinement Arthur twenty-five the district before penitentiary the State represented Crowell, had years. counsel who represented He was cases. appointment both appointed days some eleven before denied nor court, confirmed Mr. Crowell neither trial. The a full district after part quoted hearing, correctness effec- held that Brown had the testimony, finding testified Brown’s That tive assistance counsel. possible: not, it think, clearly Brown that erroneous. I showing carry failed to has burden you “Q. possible advised that Is it twenty-five year No. that in sentence a received that had constitutionally is invalid. jury trial 25-year sentence on premature agree it would do that it that I and case therefore to for that con- perhaps the district court to determine in his interest be necessary question guilty other pleading for that is not or it sider Inadequacy Palmer, Incompetency Corpus Proceedings, 8. S.W.L. Habeas 136, in the cases cited. as a Basis Relief Federal Counsel J. charge try get 25-year punishment to a recommended, to be it concurrently essential, sentence to run think, with is that, we before ac- cepting the first plea, one? such the district should plea make certain that inis possible. “A. It is I recall do not voluntarily. fact made Otherwise, whether I discussed it in those plea subject impeachment is to as hav- terms or not. I am in dis- sure ing promise been induced a of rec- cussing plea guilty a is leniency.” ommended one the considerations discussed, would have been Shelton require- centered about exactly I do not recall what tran- ments of Rule Federal Rules of Crimi- spired regard to that.” nal Procedure. That rule was amended February 28, 1966, July 1,1966, effective The evidence is thus without substan- require so as to the court to address twenty-five tial conflict the earlier personally defendant year to determine wheth- sentence in No. a real 1768 was plea guilty er voluntarily is made plead guilty inducement to Brown to and with of the accept nature thirty-five year a in No. charge. A new sentence was also 1767. I do not understand reluc- added at that, the end of the rule “The my pass tance of brothers on the court shall upon not enter a validity constitutional of the earlier sen- guilty unless it is satisfied that tence.1 The record before this Court there plea.” factual basis for fails, my opinion, any to show con- course, may go beyond Of Rule invalidity twenty-five stitutional duty resting constitutional on a state year sentence. Assuming court in a criminal case. how- any Nor Ido see occasion this case ever, duty the constitutional ex- as again discuss the conflict of views as acting imposed by as that Rule the- precautions to what must be exercised be- judge state trial in this case exercised accepting fore induced every possible precaution pro- and the prosecutor’s promise.2 My views ceedings him, quoted before as ma- Judge are still the same as those which jority opinion, may well serve model as a Brown and I entertained Shelton judge questioned for other courts. The States, Cir.1957, United personálly the defendant to determine- rehearing, on en banc re- F.2d that his was made because per versed curiam on the Solicitor Gen- he was not because error, 1958, eral’s confession of 356 U.S. advised, hope leniency. of reward or He Among 78 S.Ct. 2 L.Ed.2d 579. the defendant the ultimate decision: expressed, other views which we as the punishment imposed rested to be majority original hearing (242 F.2d Judge. judge in- with the then 113) and as dissenters on en rehear- banc plea. quired into the factual basis ing (246 578), following: is the relating full of the facts recital After “If a robbery and of the defendant’s any understanding agreement again confession, trial the state case, discussing Under plea bargaining. the circumstances of this alence of twenty-five year Guilty,” Negotiated held sentence was Plea of “The constitutionally invalid, report I would vote to recent monumental the Presi- remand for further consideration on Law Enforcement dent’s Commission validity thirty-five year begins of the later sen- and Administration of Justice (p. 134): tence. defendants who are con- “Most many percent victed —as as 90 some Admittedly jurisdictions plead I They welcome Gideon- tried. —are trumpet Supreme negotia- like guilty, call from the often as the result of practical charge to transfer so much of the ad- or the tions about sentence.” justice accomplished ministration of criminal from the can The most that at the bargaining improve pres- table to the courtroom. I lower court level is to recognize, however, widespread prev- practice. ent as to whether examined the defendant facts, did what he heard the statement said, confes- whether the statement voluntary, he was and whether sion was guilty. pleading he was because discuss repeat, need to no there is To precautions toas views

the conflict of plea of accepting a before be exercised toas upon an trial punishment, the state because pre- every wisely conceivable exercised this case.

caution specially. concur

I therefore Sanders, Harry SANDERS, Fay

Louis Groode, Ruth Groode Appellants, Bradford, ERRECA, B. Robert

John Houghtel- Guthrie, Joseph C. James A. Woolley, S. Roger ing, William S. Kofman, Frank- Whitehurst, Abraham Pedley, Appel- Payne, L. Pierson lin S.

lees.

No. 21153. Appeals States

United Circuit. Ninth

May July 28,

Rehearing Denied Kanner, Kanner, & Los

Gideon Fadem Angeles, Cal., appellants. Counsel, Harry Fenton, B. S. Chief R. Counsel, Joseph Pegram, Deputy Chief Anthony Montoya, Franck, A. Richard L. Johnson, Ruffolo, Los J. Ronald L. Angeles, Cal., appellees. BARNES,

Before JERTBERG Judges. DUNIWAY, Circuit

Case Details

Case Name: Nathaniel Brown v. Dr. George J. Beto, Director, Texas Department of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 12, 1967

Citation: 377 F.2d 950

Docket Number: 23821

Court Abbreviation: 5th Cir.