Sanford Thomas v. Donald Wyrick

objects appellant also The THOMAS, of certain checks

receipt in evidence Appellant, Sanford endorsement of genuine not bear did The evidence estab or his wife. Ballard WYRICK, Appellee. Donald however, lished, question the checks No. 75-1699. payable to Ballard or to made Bal may have endorsed Others business. Court Appeals, United States particular checks. name on these lard’s Eighth Circuit. relatively represented checks Those Jan. 1976. Submitted receipts of Ballard’s portion of the small ad salvage parts operation. Ballard April 28, Decided 1976. signed or his wife that either he mitted Rehearing and Rehearing En Banc $11,000of about representing checks cashed May 28, Denied 1976. $15,000 received approximately no error We see clear salvage business. existed, event, any error

here through prejudice no appellant suffered ruling. erred

Ballard also claims court questions refusing respond asked during its deliberations.8 The jury question upon first answered parties of the but its discre

agreement to search tran properly declined

tion to the specific to obtain a answer

script The court advised the question.

second question from its to answer the second

jury of the evidence. The recollection

collective no error in this court committed

district

ruling. also other

We have examined contentions They are without appellant.

raised merit.

substantial I,

Accordingly, affirm count we stated, heretofore reverse reasons on count II.

remand first, “(1) jury questions. The The asked two May have the dates fires?” question the court. second answered Chasnoff,

Jack M. Chasnoff, Tucker & Mo., Clayton, argument made appellant. Danforth, Gen., John Atty. C. and Neil MacFarlane, Atty. Gen., Asst. Jefferson Mo., City, appearance made for appellee filed brief for appellee. CLARK, Before Justice, Associate Retired,* HENLEY, and BRIGHT and Cir Judges. cuit BRIGHT, Judge. Circuit Thomas corpus Sanford seeks habeas re lief his from conviction in the state courts Missouri of degree first murder and from imprisonment. of life sentence The dis court, trict after an evidentiary hearing, Thomas any denied relief. appeals, Thomas asserting that the assistance afforded retained trial counsel fell below minimal constitutional standards and prose that the cutor violated due by falsely stating that a crucial witness was unavailable due fully to illness. Thomas has exhausted his state remedies.1 * CLARK, Supreme ASSOCIATE JUSTICE TOM C. The Missouri Court affirmed Thom Court, Retired, Supreme sitting appeal. United States as’ conviction on direct Thomas, Missouri v. designation. (Mo. 1969). 440 S.W.2d 467 Two day arrested the next Brown was underlying petitioner’s facts The basic garbage to officers a can in pointed out uncomplicated. relatively conviction portions partially found accurately Court Supreme Missouri pieces of charred paper burned wallet and them as follows: summarized in it. The knife that had been used 1966, evening, November Sunday On given Pursley by to Niles the murder riding around had been defendant girl friend and was recovered Brown’s neigh- Avenue and Cass Florissant North police. with a number Louis in St. borhood Defendant, apparently pre- who had no to they went p.m., 8 About youths. other record, was the wit- vious criminal At the sta- Bus Station. Greyhound defense. He stated that ness for the and defendant Brown one Frederick tion he and Brown entered the cab Dough- taxicab, by John driven got into whispered, “Let’s rob the cab driv- Brown south on proceeded cab and the erty, er,” go along he refused to with but that who had youths Broadway. One got and out of the cab at 14th plan at the defendant Brown and with He further stated that he Cass. later to where back came terminal bus cab and went to 18th and got another reported parked were others if Brown was to see at his mother- Cass 16th going were and defendant Brown house; that about that time he in-law’s tried to fol- The others Mullanphy. walking up they the street so saw Brown the traffic and it in but lost the cab low into got another cab and went to both house. Sometime to Brown’s drove then house, they where went inside. Brown’s in the front was found later, Dougherty participating denied in the Defendant Mullanphy at 16th cab of his seat he and and denied that Brown crime out was knocked A tooth unconscious. the kitchen and threw the walked into stab bleeding from two was and he said, on the table and and wallet watch chest, which wounds wounds got robbery.” out of the “That’s all fatal. proved at S.W.2d [512 testimony that There was further age note that Thomas was 17 may also We later went age and defendant of the crime and 18 at the at the time entered the back door house and Brown’s trial. time of the boys the other the kitchen where into corpus Appellant’s claim to habeas relief assembled, and that threw theyN primarily upon the admitted failure centers the table and said and wallet on counsel, watch I. Alfred Har- of his retained they got, they all robbed the deceased), “that was any to interview wit- (now ris driver.”[2] The watch and wallet might support peti- cab have lent nesses who having belonged present identified as that he were later was not tioner’s youths Dougherty of the told his when John Dougherty. One time was at something about what had oc court found that defense father The state killed. any did not interview wit- reported his father the matter Harris curred and investigation to dis- but confined police. nesses clear, Although it was not made state- later, ap- years court considered Thomas’ Brown, evidently made not Thom- ment post-conviction plication Thomas v. relief. for against petitioner on the It was admitted as. Missouri, (Mo.1971). 513 At that 465 S.W.2d deny theory the statement that his failure Supreme for Court remanded time the Missouri guilt. implicit We admission of note was an evidentiary hearing and directed the low- newa attempt at trial to show that that there was no specific findings of fact and court to make er the statement were such the circumstances presented. all issues of law on conclusions petitioner implicate clearly and to call for toas Court, hearing, Supreme sitting After that untrue. a denial banc, Thomas relief. Thomas v. Mis- en denied souri, (Mo. 1974) (en banc). S.W.2d 116 512 opinion, justices in the two concurred Four result, justice and one dissent- concurred ed. Thirdly, prosecutor, with the Harris made no attempt evidence cussing the to inter of Frederick view the confession individuals which learning implicated petitioner,3 he had met at Brown, which asserted house Jr. of the state’s reviewing during the contents Brown’s mother-in-law his search wit gotten statements of the Brown after claimed he file, included by the state on the indict the cab. These out of individuals were nesses endorsed infra, wife, explanation for an Brown’s and her cousin. The note state See ment. endorsement. found that had Harris practice of contacted these individuals would have “that testified that there were at least asserts Petitioner Thomas arrived at their Sanford house at witnesses which his attor- groups three during the evening some time and then First and have interviewed. ney should The factual basis left.” for this finding is foremost, that his counsel asserts persons clear as these testify did not Brown, Frederick have interviewed should any post-conviction hearing. Evidently the participating in the kill- admitted who had petitioner’s court either credited state testi to de- clearly was available ing. Brown assumed these mony or witnesses would he wished to conduct an counsel had fense Brown’s support degree. statement in some petition- Harris was retained as interview. post-conviction Petitioner testified at shortly petitioner was attorney er’s hearings that not would these individu February of 1967. Peti- arrested first als have confirmed that he came to their jail city in the St. Louis tioner was confined house, but also would have testified that he until his trial on November that time from came there alone and that he looking was confined in the same Brown 1967. for Brown.4 murdering pleaded guilty to jail. He 17, 1967, why and re- clear Dougherty on October It is not defense counsel made city jail until No- attempt Louis no to contact the persons present mained St. 9, 1967, days four before the com- vember at the house Brown’s mother-in-law. trial. petitioner’s They mencement of were not endorsed on the indictment for the as witnesses state. Evidently coun- group potential witnesses The second rely sel was content to on Thomas’ testimo- young those other men who were with were ny alone to establish the facts to which Brown before and after Thomas and witnesses could testify. these evidently killing. attempt Harris made no However, any of these individuals. to interview Sev- matters are clearer with re- were endorsed on the indict- spect eral of these to defense counsel’s failure to inter- two, state witnesses and potential young ment as view Brown and other men who Niles testi- Pursley, Anderson and before and present alleged Lonnie after the at trial. for the state crime. These individuals had been fied endorsed confession is referred to in the looking 3. This Brown’s mother-in-law for Brown. hearings post-conviction but was not there, While he testified that he called a “Vic- introduced into evidence. tor cab.” He testified that when he left the house, honking this cab was in the street Additionally, Brown’s statement is credited him; up as he went toward the cab he met with stopped at the house of Brown’s moth- that he They together Brown. then traveled er-in-law, investigator ordinarily should home in the Victor cab. Brown’s As we have sought further verification of Brown’s noted, attorney steps verify Thomas’ took no through the taxi driver who was statement Thomas, his client’s claim innocence. as the Because no as well taxi driver called attorney alone home of Thomas to the was made below of who delivered issue Harris’ fail- already drivers, attempt As has Brown’s mother-in-law. to locate these ure to we do noted, get- petitioner testified at trial that after rely upon demonstrating this not omission as occupied by ting cab Brown and out of the incompetence of counsel. Our comments Cass, Dougherty at the corner of 14th and he illustrate the nevertheless obvious —failure hoping on 14th Street to see his south walked any any investigation precluded possibility of following in another car. When friends evidentiary obtaining support for Thomas’ appear, petitioner testified that he did not claim of innocence. caught cab and went to the home of a second I. the indictment as Standard of Review. prosecutor upon 6 infra. witnesses. See note Defense state The district court expressed some uncer- post-conviction testified at tainty proper as to the constitutional stan- avoid the hearings appear- that in order to dard claim of ineffec- impropriety he followed an estab- ance tive assistance of counsel should be as- interviewing any lished custom of After reviewing sessed. our decisions the witnesses. government district court concluded that this circuit still adheres to “farce or mockery justice” Although Brown was endorsed as a state Applying standard. witness, testify at trial. When standard the dis- he did not trict court denied commenced, relief. prosecutor in However, the district court made the fol- the court that Brown would not be formed lowing observations: objected, stating Defense counsel called. is, eliciting anticipated undeniably, favorable testi This a close case. If the * * * applicable rule were Brown on cross-examination.5 mony from “reason- ably competent explained counsel”, then to the assistance of prosecutor I believe suffering from would not hepatitis Brown was have been afforded his right constitutional being After so in to assist- quarantined. and was ance of counsel. formed, declined to the trial court order the witness, prosecution call but Because there has been some variance in provide assistance to the defense offered to language of our opinions and because Brown. it wish to call This offer should proper standard important in deter- accepted. was never case, mining this close we think it advisable applicable for us to review the law of this stipulated prose- has been that the It now circuit. he cutor was in error when stated that We first quarantined allegation was at the time of trial. considered an of inad- equate investigation preparation is not and The basis for this mistake clear. States, counsel in Cardarella United prisoner is some indication that a 375 There (8th 1967). F.2d 222 Cir. There we said very similar name was in isolation at with that time. that charge of inadequate representation revealed in All of these events became “only if prevail can it can be said that highlight years petition- two dramatic what was or was not done the defend- conviction when Brown recanted his er’s attorney ant’s for his client made the implicating in the statements proceedings a farce and a mockery of He impli- murder. announced that he had shocking justice, to the conscience of the protect in order to two cated (numerous at 230 Court.” citations [Id. who were his close friends. other individuals omitted)]. further stated that had he been inter- He As the support cases cited in of that state- counsel, by defense he would

viewed demonstrate, ment the “farce and mockery” told the truth at that time. Petitioner as- universally standard was accepted at that clearly serts that this demonstrates that his time. adequate failure to conduct an counsel’s

investigation deprived him of effective as- However, having appar- enunciated this of counsel. Petitioner also asserts sistance standard, ently harsh the Cardarella court light present testimony, that of Brown’s undertook a careful analysis appel- then prosecutor’s misrepresentation The lant’s claim. court first noted that the Brown was unavailable at time of the competence of general Cardarella’s counsel trial amounted to a denial due unquestioned. opinion was The of the dis- requires reversal. quoted and trict court was as follows: simply 5. Defense counsel has testified that this statement was bluster and that fact would not relieved that Brown be called. recog- that an long attorney’s inadequate investigation has counsel His chief outstanding most preparation of the denied a defendant’s right as one nized Bar, City at the Kansas of counsel. In lawyers assistance Garton v. criminal Swen- State, enjoyed (8th has son, 1974), and F.2d 1137 Cir. the dis- both Federal criminal the trial of success trict court denied a petition unusual habeas evidentiary hearing, ruling cases. without mockery” “farce preclud- standard was a former counsel His associate We reversed and for a ed relief. remanded of Inves- Bureau the Federal member hearing. Judge Stephenson’s opinion full the At- assistant former tigation, emphasized States, and of the United torney General of law at the practice engaged long have based our concerning decisions [w]e City Bar. Kansas upon [Id. of counsel particu- effectiveness case. The lars of each standard for effec- of defense counsel’s convinced Although easily precise tiveness is not reduced to effectiveness, competence general capable rigid application. words [Id. specific the three then examined at 1140.] demon- appellant claimed grounds grounds Two of the inadequacy. strated Britton, (8th In Wolfs v. 509 F.2d 304 Cir. urge issues to choice of counsel’s concerned 1975), tardy appointment of trial coun- sub- were found to lack These appeal. on compelled him try sel had the case ground third was coun- merit. stantial pants.” urged “seat of Petitioner reports. police two to discover failure sel’s right he had been denied his to effective reports, carefully examined The court though assistance of even his attor- availability to counsel and analyzed their ability ney’s general performance and trial counsel’s failure discover concluded unquestioned. obliga- We noted our “a ‘lack of demonstrated reports one of on an proceed giving tion to “ad hoc” basis legal sense.” Id. at 232. in a diligence,’ consideration to all factors bearing due performance any resulting counsel’s review undertook to therefore The court including prejudice, strength to determine whether record the entire case. Id. at government’s 310. We decided prejudicial was so as by counsel error the “combination that under of circum- court concluded that reversal. warrant counsel’s lack of time to adequate- stances” present “failure to been no there prepare investigate and ly denied respect” and that any fundamental in case right to effective assistance of counsel. in there was a one instance [t]he sense, legal in a in diligence,” “lack of most present Our case similar to the one does not suffice to “discovering” evidence Swenson, McQueen v. (8th is 498 F.2d 207 overwhelming proof overcome 1974). McQueen reaffirmed the Cir. tradi- demonstrating adequacy and record mockery” tional “farce standard. How- counsel, particularly where ability of ever, following explanation: it included the of, even if availed question, evidence Stringent “mockery justice” as the re- produced a different could not seem, may we have never in- standard of both the Our examination sult. it to be used as a shibboleth to tended satisfies us that record appellate and searching possible evaluation of avoid pre- thoroughly for all defendants violations; nor has it been constitutional re- great the case with tried pared and in this circuit. It was not intend- so used sourcefulness, competently presented justice” “mockery of standard ed that the defenses, and disclosed all available literally, but rather that taken be inconsistencies weaknesses princi- an embodiment of the employed as case. at government’s [Id. 232.] ple that a must shoulder a proving heavy burden in unfairness. cases have followed subsequent [Id. Our assessing claims at of Cardarella approach 214.] Wolff, (8th 528 F.2d 208 Cir. detective or somebody go Garza See to the Court J., dissenting). and make 1975) (Ross, application. It is too sub- ject bribery offers. puts It you in a of Proof. II. Burden light. bad You can be accused of many I things. get don’t care to into that. McQueen, the failure we said in As F.2d at [498 adequate as provide counsel to of defense unique form of constitutional sistance Trial counsel this case has testified he adversary a “flaw in the error. It creates McQueen, followed an identical custom. In 218-19, at not attributable to process”, id. we found “absurd dangerous government either the or de the fault of policy” contravened the attorney’s essential fendant, integrity and it undermines duty adequate to make an factual investi- parties the trial in which all have a gation and could be viewed “as an However, despite impor vital interest. abdication —not an exercise —of his profes- assuring that a defendant is not judgment.” tance of sional Id. at 216. counsel, adequate assistance of we

denied a wholesale Such abdication of re “there is emphasized that and should be a sponsibility significant in two respects. competent,” that counsel is id. presumption First, the failure of an attorney to exercise pre we reiterated the “sound professional judgment on behalf of his of a attor that “the exercise defense cept” client is itself serious breach of the law judgment should not be ney’s professional Second, yer’s duty.6 important, more Because second-guessed by hindsight.” Id. habitually for counsel to disregard available recognized of these considerations tends information to erode the presumption attorney’s challenging an exercise of one regularity competence which nor judgment must “shoulder a professional mally attaches to an attorney’s decision.7 Id. at 214. heavy burden.” However, McQueen, we made clear However, general these considerations that: largely to be undercut were found inquiry Our to whether or not to counsel’s custom of not interview- defense grant relief is not concluded finding a witnesses. There defense ing government violation constitutional in the failure of counsel testified petitioner’s attorney to make an adequate go like to out and interview investigation I never case. Evaluation of duty That is the of a corpus petition witnesses. alleging State’s a habeas ineffec- Obviously of the ABA Code of Professional these rules 6. Canon 5 are intended to assist the Lawyer adequately Responsibility provides preparing “A Should defense in for trial. Judgment Judge Independent suggested Professional Gibson has Exercise Chief provides right that to effective assistance of on Behalf of a Client.” Canon 6 counsel should light Represent Compe- Lawyer “prevail in of a be assessed the standards “A Should Client ing among practice 6-101(A)(2) lawyer tently.” those licensed to forbids a to before the D.R. States, 640, legal preparation bar.” Johnson v. United 506 F.2d matter without “[h]andle (8th 1974), denied, 978, adequate Cir. cert. 420 U.S. the circumstances.” Rule 4 [under] (1975). 43 L.Ed.2d 659 Supreme adopts 95 S.Ct. We can Court Rules of the Missouri prevalent practice that it is not believe principles. for these invariably ignore Missouri defense counsel Supreme pro- Court Rules also The Missouri sources of information about a crime made always vide that certain information is availa- available to the defense court rule. Supreme the accused. Court Rule 24.17 ble to requires that emphasize gen- 7. that we We are faced with a * * * indictment is filed the an policy interviewing government [w]hen eral of not wit- prose- of all material witnesses for the recognize cases, names particular that in nesses. We shall be thereon. attorney’s professional judgment cution endorsed may an lead requires upon request Rule 25.32 that the state him to decline to interview some or all of the government’s rely must disclose witnesses and to on other names and last known addresses sources of information. Such an [t]he exercise of persons professional judgment given the state intends to call as whom will be the same * * * any witnesses deference as other. will adopted. Cf. Britton, is a Wolfs v. two-step of counsel su- tive assistance * * * pra. Secondly, emphasized we first, determining that where process: attorney’s duty breach of has been seri- per- been a failure to there has whether ous, necessary it is not that duty, duty as essential as some form by preponderance demonstrate of the evi- owed a defense attor- investigation, adequate representation dence that would client; second, determin- ney to his * * * acquittal. produced The ing preju- whether that failure need shoulder the additional burden of defense. F.2d at diced his [498 showing alleged error itself suffi- Clearly, a defendant must bear ciently undercut the reliability of the trial demonstrating the initial burden prejudiced to have process perform some essential counsel failed right to a fair trial. As there had been no However, once failure has been duty. evidentiary hearing McQueen directed to established, party not so clear which prejudice whether flowed from ineffective establishing that coun the burden bears counsel, assistance of we remanded for a significantly so undercut the reli sel’s error evidentiary hearing. further Here we have process require as to ability of the trial We, therefore, a full record. address the recognized McQueen, As we reversal. question prejudice. disagree point. on this Id. at circuits reviewing leading After cases 219. Prejudice III. Proof of in This Case. issue, adopted we a “flexi sides of both already We have held that defense generally imposing the bur approach,” ble counsel-Harris’ failure to any interview wit demonstrating pe unfairness on the den pursuant nesses to his danger absurd and Id. at 220. This decision was titioner. general policy against ous doing so consti First, on two considerations. we are based tuted a breach of an essential duty owed unwilling to disturb criminal convictions petitioner. Therefore, counsel to we must the basis of theoretical flaws that simply on consider whether the effects of that breach consequences. Secondly, world have no real duty raise a question serious as to the matter, practical recognize reliability of the trial in this case. prejudice usually more within proof of Supreme The Missouri Court held that the knowledge petitioner. of the petitioner had not met his burden of show ing prejudice. Relevant portions of the The allocation of this burden is a opinion court’s excerpted designed to judicial tool assist the deter *8 margin:6 particular mination of the truth. If the require the case a differ circumstances of question presented for our considera- burden, that allocation requires ent allocation that we tion examine the record to Complaint helpful would is also made of failure have been [Harris’] to defendant. certainly Actually, interview witnesses. There was defendant’s would indi- contrary. for him to interview Brown be- cate the He no occasion stated he did not ar- at the house until from he had decided not use Brown as a rive 30 to 45 cause minutes place event. There is a after he left the cab. The murder witness sound basis took place got three blocks from the the conclusion of Mr. Harris not to use where he out. agreed repudiate It would therefore be even if he had reasonable to conclude testify proposed those witnesses confession and defendant was would not have established an alibi for involved. This because there was no defendant. * * * * * * testimony that defendant was in the direct committed, the crimes were and it cab when Defendant next contends that his defense very damaging by to defendant prejudiced could have prosecu- the fact that the (even though come in for evidence to have gave false tor information to the court as to impeachment) giving purpose for details of Frederick the illness Brown and that he robbery participation thereby. and murder. his was misled What we have hereto- ' persons whom defendant said As to the two will indicate fore said our view that defend- mother-in-law, by prejudiced development. at the home of Brown’s ant was not that Harris did not interview it is conceded that There is a reasonable basis for the view that is, however, showing them. There no that it was to defendant’s benefit that Brown did absence of investi- acquittal. whether the mandated an determine Even if Thomas’ prejudiced the gation by Thomas’ counsel counsel had made a reasoned decision not to failing in to obtain a fair trial. call Brown in preclude order to his confes- that McQueen in heldWe evidence, impeachment sion as the informa- shoulder an must initial tion now uncovered would have armed showing the existence of ad- burden Thomas’ counsel with upon ammunition evidence which could have been missible which to cross-examine witnesses Anderson by investigation reasonable uncovered Pursley. original and Niles trial proved helpful which would have record, part which is the record in this on the defendant either cross-examina- case, discloses that Anderson was arrested at original tion or in his case-in-chief following Pursley this crime. was another trial. at F.2d [498 who young men had been with Brown at the bus station and at Brown’s already noted, As we have Brown has evening crime, home the and who supported recanted his confession and testified for the state. innocence, by Thomas’ claim of first 3, 1969, signed affidavit al November Anderson at testified murder trial years most two Thomas trial. day crime, that on the after the Brown, in his supplemented by affidavit his admitting that he had stabbed the cab driv- testimony given post-convic at the Missouri er, presence. made no mention Thomas’ hearings stating Anderson, tion that Lonnie 124 (dissenting opinion). See S.W.2d At who had followed the taxicab in an automo the murder trial Anderson testified that he bile, Williams,9 and Walter who entered the police told a officer Brown said on entering crime, prior participated cab to the with apartment up driver,” “we stuck cab Dougherty’s Brown in murder. He further laughed “Yeah, then and said I stabbed impli stated that his confession he had him.” up cated Thomas the participation to cover In the statement of facts summarized He explained Williams Anderson. supra, the indicated that testimony one of he to tell the that had decided truth be young the other who had men been with cause neither Anderson nor Williams had reported Brown at the bus station that anything (Brown) him help done while going “Brown and defendant were to 16th incarcerated. He testified also if he Mullanphy.” Brown’s postconviction had been called as a at the witness Thomas testimony got indicated Williams trial, truth, i.e., would have told Mullanphy. the cab at 16th and Thomas was innocent. testimony This produced background, at Thomas’ With this counsel for Thom- jury, and if believed would position vigorously pursue as was in a witness for either the tails of the confession as to defendant’s against not have been fendant as an active in the commission of the crimes. Since Mr. nished defense Brown’s rule this Harris did not “Judge sulting from damaging to his defense. The next contention appear repudiated Palumbo erred defendant witness, credibility point against impeached Mr. Fredericks. We as a witness. the incorrect his confession as a intend to use Brown there would State an issue in the participant, was no defendant. of defendant showing treating If he had testified If he had been a information have been defendant, involving prejudice accordingly all the de- Frederick he could eviden- very part fur- de- re- 9. Williams is now deceased. the court did not believe and hence his trial court’s tion of the trial tiary ways proper about setting he testified point is therefore overruled. credibility. 122-23.] jury always find, hearing would not believe Brown in the event aside the as defendant seems to relevant matter proper matter Also, finding, it was at a trial on the to cross-examine * ^[*] court. As we judgment. credibility afforded no basis Brown’s for the * * * to the effect that order to test understand the [512 The court did merits. This indicate, of a witness a witness considera- testimony S.W.2d It is al- credibility But does not constitute the Purs- and Niles Anderson witnesses state’s evaluating the evidence which standard version of Pursley’s whether ley, determine investiga- uncovered could have been the “they robbed statement Brown’s tion. Brown and Thomas or meant driver” cab men, and young the other and one of Brown McQueen : We said prosecution’s the doubt on cast to otherwise ought not intervene in the criminal We Thomas remained theory that and until it can be shown process unless time witnesses testified the from together alleged prejudiced error itself the Dougherty’s cab until into entry to their petitioner obtaining a fair trial. the Brown’s them both at placed witnesses that, remand, say is not to But this a later time. apartment must petitioner prove innocence even preponderance much as a by so knowledge of this information Finally, evidence; nor should be understood to coun upon doubt defense cast would have suggest may trespass upon that the Court evi acceptance of the state’s ready sel’s properly jury’s would have been the what inquiry have motivated and should dence weighing falsity the province of truth or Brown’s at the home of present those original evidence at of this trial. whether Thomas to ascertain mother-in-law that, here, saying is What we time from Brown at separated had must shoulder an initial burden petitioner into the cab at got of them the two showing the existence of admissible Harris’ fail attorney But station. the bus which could have evidence been uncov- every avenue investigate foreclosed ure investigation reasonable ered protesta consistent for Thomas’ support proved helpful would have which innocence, partakes position tion either on cross-examination or defendant opening since at credence of some at the trial. original in his case-in-chief accept 10-year sen trial he declined made, showing this a new trial is Once plea. Harris guilty for a in return tence warranted unless court is able to de- “very Thomas was ada also testified a belief that clare omission of such position.” mant beyond was harmless evidence reasona- and the federal dis- courts The Missouri F.2d at ble doubt. [498 Brown’s statement court found trict petitioner has demonstrated the fed- credibility the words of lacking —in investigation reasonable by Thomas’ deny- “unbelievable.” In court eral district attorney could have uncovered admissible therefore con- relief, the district ing proved which would have helpful evidence cluded: either on to the defendant cross-examina evidence, this Court finds all Under original in his case-in-chief at the tion or has failed to sustain his cannot be said that the evidence It trial.11 McQueen showing that burden under supported inherently incredible for it is evidence from existed admissible there The uncovered testimony. accused’s by the could have been uncov- witnesses “which upon be admissible a retrial would evidence investigation True, may reasonable ered this evidence Thomas. proved helpful through impeachment. have considerably which would tainted original ... at the tri- is shown that defense counsel once it defendant But duty, sufficiency an essential al.” breached he knew more about 10. Harris testified that he would told the “truth” defendant, Thomas, than the because present case that the ver- insistence his information from the other side. obtained truth, together with viewed all of the sion is case, we are satisfied that other facts of say Obviously we cannot with assurance a sufficient has demonstrated likeli- story present would have told his that Brown of Brown that an interview could have hood properly he been interviewed. Harris testimony. produced vital However, light of Brown’s uncontradicted

417 turns on proof prejudice sixth petitioner’s amendment to the Constitution of the evidence has been un- whether admissible United States as carried forward into the jury reasonably could which a covered fourteenth amendment. assessing guilt or innocence. Ob- weigh As the majority recognizes, however, the part could believe all or

viously jury inquiry does not end at point. It is scrutiny. here under Under the evidence necessary also to determine whether coun- case, of this we cannot the circumstances sel’s breach of duty prejudicial was so to the omission of such evidence at say that the as require to reversal of his was harmless petitioner’s beyond trial conviction federal constitutional proof Petitioner’s doubt. reasonable grounds. not be defeated prejudice by should With respect prejudice opinion credibility low of the court’s majority district says that was not testimony. necessary of relevant admissible peti- by tioner to demonstrate a preponderance reverse and Accordingly, we remand this of the evidence adequate representa- court to and direct the district issue case produced tion would have acquittal, corpus discharging peti- habeas the writ of that his burden was limited to “showing tioner, state, subject right to the of the if it alleged that the error itself sufficiently un- so, try to do him on the indict- wishes reliability dercut the of the process trial days involved within 90 ment here prejudiced have petitioner’s right to a of this court reaches the time the mandate fair trial.” At 413-414. And the ma- district court. “ jority says, also . . .we must con- Reversed and remanded. sider whether the effects of that breach of duty raise a question serious [to interview] HENLEY, Judge (dissenting). Circuit as to the reliability of the is It not the function of this try court to purposes case.” At present 414. For novo; petitioner’s corpus habeas case de our least, accept I will the majority’s defini- function is to review the decision of the tion of the proof burden of as far preju- denying petition, district court dice is concerned. required accept findings factual majority that court While the clearly unless is critical of the erroneous.1 fail- When that standard of review ure of applied, young I interview the men agree cannot with the majority that who company were in the of the defendant reversal, record in the case calls for and for killing and Brown before and after the that reason I dissent. and of Dougherty the failure of counsel to people interview the whom the outset, At I accept the historical facts claimed to have seen at the home of of the case as set out in majority opin- Brown’s mother-in-law while he was al- I accept proposition ion. also that the Brown, legedly looking for which inter- failure of trial counsel to inter- might might views or not have pro- Brown, perhaps view persons other in- ductive, and while the majority suggests ease, volved in the justified cannot be have that counsel would done well to have general policy counsel’s of never interview- who, tried to locate certain cab drivers ing prospective prosecu- witnesses for the found, might had been might policy tion. Such certainly impermissi- ble, supplied regardless helpful of what information called, else it to the may be defense, agree and I with the it seems to me district court that the majority’s whatever standard may prejudice counsel’s conduct decision on the issue of is based measured, he failed in the ultimately abstract on the failure of counsel to inter- provide petitioner with the adequate repre- view Brown himself while Brown was con- sentation of counsel that is called for by the jail in fined in St. Louis. Swenson, 52(a); 944, Brown v. (1974); Tay- Fed.R.Civ.P. 94 S.ct. 40 L.Ed.2d 296 1973), denied, (8th Swenson, (8th F.2d 1236 cert. 1972). Cir. 416 U.S. lor v. 458 F.2d 593 Cir. explained He that had was convicted. of the view silence majority is interviewed, perhaps expected help he would that he of an saying unspeci-

Brown been part accomplices, of his confession two alleged that kind from An- fied have recanted murder, Williams, in the of petitioner the latter whom is implicated and which derson recantation would have dead, such a that he decided to tell the and that and now help petitioner to at his they substantial he became convinced that been of after truth whether or not Brown regardless help of to him any trial afford going were not as a witness for either side. called illegitimate. was or legitimate whether that majority concedes it Although the at what in point be ascertained It cannot that Brown said with assurance cannot be ever, that time, Brown became convinced if a recantation had he made such would have any to help receive from going was not he 416, (at by counsel first been interviewed Williams, he but the fact that Anderson and sentence, appearing page), that and n.ll on in- years justifies for two the kept silence nevertheless, majority is of the view the his harboring hope he was of that ference partial of such a possibility that the time period a substantial assistance for strong enough cause was to the recantation conviction, and petitioner’s trial and after to interview Brown to of counsel failure to simply is no real reason believe there undercutting “of the result in serious changed original he have that would preju- the reliability of attorney to story petitioner’s had talked right to a fair trial.” It petitioner’s diced petitioner’s before trial. him disagree major- point that I with the at this assumed, however, Let it that Brown ity. had he been inter- recanted would have opinion, say to there was my that In While such recantation by viewed counsel. say proba- strong possibility, nothing of a value to may have been some defense exculpated Brown would have that bility, prosecution wit- cross-examining petitioner had Brown interviewed nesses, help that it is clear the most obvious counsel, engage pure speculation. petitioner given could have Brown conviction, that a I do not think the And the stand and tell have been take would twice of which has been considered validity petitioner had left the cab jury that the Missouri, post- Supreme Court killing nothing to do and had before the proceedings and which has conviction also it. with carefully by the district been considered with that from trouble be overturned on such a basis. court should apart is that from Brown the standpoint changes of confessions and Recantations witness that could from had no State years convicts months or after story place petitioner in the cab knowledge own by no are means unusual. their convictions killed, was and in when the driver fact many for are motives such recanta- There place petitioner able to was not State changes, highly and un- tions and killing by time of the means of cab at the trustworthy. as Had Brown been called direct evidence. I not think that Missouri do courts witness, exculpated he petitioner, had required or that federal district were impeached him imme- State would accept required give any was Had diately by reference to his confession. weight to Brown’s belated affidavit great Brown, it would have run called the defense testimony, including his post-conviction jury not accept would the risk that he had been interviewed statement recantation, gone would have jury been called as a wit- jail and had while in knowledge with its deliberations petitioner of ness, would have absolved implicated petitioner originally. Brown robbery killing involvement Brown, it did call when The State cab driver. so, took risk a serious that the failed do be convinced of the kept jury petition- would not be remembered that must It guilt strength years some two er’s silence

419 That risk who called. sidered the witnesses while on the district bench. In Fra might have been eliminated from a well Roberts, zier v. 310 F.Supp. 504, (E.D. 512 standpoint had Brown been called practical Ark.1970), the writer cited approval with witness; however, had the a defense the then recent case Bennett, Scalf Brown, it would have taken a called defense (8th Cir.), F.2d 325 denied, cert. 396 U.S. that Brown would recant his risk serious 175, 90 S.Ct. (1969), L.Ed.2d 161 testify directly and would recantation held, wherein it 327-28, 408 F.2d at robbery participated in the corpus that habeas relief would not be killing. resulted in granted on account of incompetency of point been said to this suffi- or of

What has denial effective counsel unless as as the result ciently my views far states was a farce or of mockery justice, case is concerned. I particular of this shocking or to was the conscience of the However, of in view would affirm. court, reviewing or unless purported post-conviction of contentions of recurrence representation perfunctory, in bad representation by counsel inadequate faith, sham, pretense, a a or without ade trials, advancing original of which has quate opportunity for conference and prepa operating procedure a standard for become ration.2 convicts, which most troublesome to A years later, few the writer thought, embarrassing to the attorneys judges on largely strength McQueen of v. involved, go to feel it desirable somewhat I Swenson, supra, the standard an ease. beyond this Bennett, in v. supra, nounced Scalf had The focus of discussion here has been as replaced by a been competen “reasonable prej or not sustained whether to cy” adopted standard such had been attorney’s dereliction as a udice result Lockhart, other circuits. Clark v. 379 However, it duty. is clear from the 1320, F.Supp. (E.D.Ark.1974), aff’d, 1329 opinion Judge of District Nan unpublished (8th 1975), denied, 512 F.2d 235 Cir. cert. had some trouble with the stan gle he 872, 139, 423 U.S. 96 S.Ct. 46 L.Ed.2d 103 determining whether applied to be dard (1976).3 duty by a breach of not there or Post-McQueen counsel; cases by called mentioned attention which, to court and in the majority opinion a of our decisions use district number term, applicable standard “a this indicate that we may make have re- The cases cited were: DeBer bit unclear.” turned the “farce and mockery jus- Wolff, (8th 1975); v. 513 F.2d 1336 Cir. ry if, indeed, tice” standard of the older cases Britton, (8th v. 509 304 Wolfs F.2d Cir. it, departed we ever from and that we are 1975); States, Johnson v. United 506 F.2d lip paying service to at least that standard. denied, (8th 1974), Cir. cert. 420 640 U.S. fear, however, that what we may really I 978, 1404, (1975); 95 43 659 S.Ct. L.Ed.2d deciding cases of this doing is kind hind- Wolff, (8th v. 504 377 Cir. Crenshaw F.2d basis, sight, purely a ad hoc and without denied, 966, 1974), 420 S.Ct. cert. U.S. 95 any particular reference to real stan- 1361, (1975); McQueen 43 L.Ed.2d 445 v. the quality representation dard of consti- 1974), Swenson, (8th F.2d 207 Cir. 498 tutionally required relating extent States, v. 222 United 375 F.2d Cardarella require prejudice that will a reversal if denied, 882, Cir.), 389 88 S.Ct. (8th cert. U.S. representation been inadequate has consti- 129, (1967). 19 L.Ed.2d 176 tutionally. approach, being it Such if is taken, view my had trouble with the undesirable and

This writer also unfair courts, con- judges, standard cases that he to district to state and to applicable Roberts, supra, Again, was reversed 3. Frazier v. this court did 2. not discuss the standard 1971). court, (8th 1224 Cir. How- employed by this F.2d the district court. ever, court did not refer the standard of representation the district court. mentioned in crimi- defendants represent who lawyers EMMANUEL, Appellant, V. Alfred cases.

nal extremely difficult recognize I ap- to be general standards to articulate OMAHA CARPENTERS DISTRICT area, recognize I also

plied in this COUNCIL, Organization, a Labor given representation has been whether Appellee. and, so, inadequate constitutionally No. 75-1539. prejudiced inadequacy has so whether reversal, Appeals, United Court of call must States as to the defendant Eighth Circuit. upon a number fac- necessarily depend But, to case. I vary from case tors 11, Feb. 1976. Submitted judge upon a district also think that called May 4, Decided 1976. of this kind should have case decide Rehearing and En Rehearing Banc follow, and some guidelines to assur- some May Denied his decision will be reviewed ance as how appeal. opinion, the standard laid down in my In States, supra, v. as am- United

Cardarella Bennett, to some extent

plified Scalf adequate proper is an standard

supra, appraising the followed in constitu- representation by adequacy of coun-

tional think given case. And I

sel in its

court should announce adherence to that

standard, or to some other standard if and that thereafter we prefers, should exercising our proper ourselves

confine reviewing function decisions of

appellate they

the district court cases upon apply been called that stan- hand, it

dard. On the other behooves make courts to it clear in their

district

findings opinions have con- them question

sidered the before

light prescribed standard.

Case Details

Case Name: Sanford Thomas v. Donald Wyrick

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 28, 1976

Citation: 535 F.2d 407

Docket Number: 75-1699

Court Abbreviation: 8th Cir.