*2 BROWN, R. Chief Before JOHN DYER, Cir- Judge, COLEMAN and Judges. cuit severed the three defendants were Judge: DYER, Circuit July first, initially on tried MeNeal was corpus petition presents habeas This 25, 1968. question single important of whether preparing In for McNeal’s in a Mis- trial and conviction key realized that had two by an sissippi court was barred state Luster, first, David witnesses. The charge on the same *3 earlier consistent, totally cooperative or but terminated, prior to a verdict which was that on occasions he had stated several objection, the and McNeal’s over one him he was the told that MeNeal prosecutor’s a successful had the station attendant. who shot prosequi. that the conclude nolle We Banks, key witness was The second Four- the Fifth and trial violated second Joseph Kel- retained counsel was whose proscription Amendments’ teenth prose- the discussions with lum. In his jeopardy against person placing in a early prior cutor to and even Accordingly offense. for the same twice trial, his client indicated that Kellum we reverse. Amendment invoke his Fifth would not considering raising simi- cases When against privilege self-incrimination.1 issues, Supreme the lar double brought July on to trial was MeNeal consistently that it stated Court impaneled and and a was body inappropriate to create a would be day second after On the sworn. rigid which mechanical rules the testified for thirteen had witnesses constitutional the merits the to State, prosecutor to the called Luster the claim; problem must be instead stand, planning call Banks next as to terms of the facts and all evaluated last witness. State’s individual case. of each circumstances Somerville, 1973, Illinois v. testimony on stand Luster’s L.Ed.2d prosecutor either wanted not what Perez, 1824, States testifying expected. that Instead or Consequently, 6 L.Ed. 165. Wheat. MeNeal, defendant, Tommy he heard set out detail the circumstances we say killed the station attend- he had that gave petition. that rise McNeal’s Tommy MeNeal, ant, that Luster stated uncle had told him that defendant’s MeNeal, defendant, Tommy said I. Fol- the attendant. killed that he had manager In March of a prosecutor lowing surprise, this Clarksdale, gas Mississippi, station was get attempt Luster an extensive made robbery attempt. killed in Several testimony, but Luster this to recant days later, apprehend- Louis Banks was change story. Tom- his With refused suspect gave ed as complete and he uncle, MeNeal, as a my unavailable transpired gas account of what at the as an al- witness, of Banks the status cooperation station. Because of his heightened. ready witness crucial because he was believed to be a “lesser to the stand as murder, actor” in the then Banks was called he was allowed to bond, but, make time McNeal’s coun a reduced At this July on witness. Ross, apparently indicted, sel, Harvey along obtained with Me- speak Ford, permission court Neal and from the Roosevelt for the murder attorney, Kellum, in an the station Banks and his attendant. trials According testimony agreement prosecu- to Kellum’s at kind from hearing, posi prosecutor federal habeas he took this testified tion. The State hearing tion because he felt the had a weak “it was under- same that against case his client and because he Kellum that Banks take stood” hoped get prosecution witness; a deal of some sort the stand as a stated, prior however, prosecuted. return, He State. Banks would not be to the trial he had not obtained definite stating jury, prosecutor Fol of the courtroom.2 off anteroom getting vociferous, unreported ex lowing found after into “has out change court unable make his Kellum returned out case.”3 that he would room and announced days few A Banks, testify. client, his allow placed case, the McNeal Banks was he stated then sworn Banks was According same trial for murder. claiming testify, his that he would testimony, prosecutor’s he inten- later privilege. Amendment Fifth tionally in this little offered evidence key witnesses unable both of With the court knew because unwilling the State’s to substantiate guilty, of not would direct a verdict immediately case, granting would have the effect of McNeal quested the case prosequied.” immunity.4 quickly counsel McNeal was “nolle Banks *4 requesting the a conclusion objected, again re-indicted and came to trial or, February had if the State merits on the 1969 at trial the next term of proof, directed verdict a court. no further This trial culminated in his con- granted thereupon viction, court acquittal. The appeal. which was affirmed on discharged subsequently prosecutor’s motion and McNeal the exhausted his 3. The that has ference time. during our ference with ing produced, at Us court’s and prosecutor, any The defendant be nolle COURT: You prosequi MR. MR. HARVEY T. ROSS: MR. ROSS : This defendant COURT: Call MR. COURT: please. to have this case think that titled Honor. Honor, COURT: please, no merits at this clearly the dismissal use. the reference to Ross’ only spoken further following is includes transcript testify. It this case be nolle conclusion, STONE: Your hearing, exchange appearance just nolle STONE we we however, is ? been a directed verdict of not erroneous. trial ask clear nevertheless I with Kellum object proof, Banks and Kellum after Banks was called is Call prosequi portion the think the State can ask Consequently, Ross, immediately partially that this point. of McNeal’s that between your of the witness Banks. District about based a and this does not show object of Banks has testimony [prosecutor] this defendant your complete disposed there was prosequied, next Honor, If on the whether Banks the transcribed prosequied. next to the nolle the State Attorney several any motion. If the Court witness. proceedings the district first court, for that Ross of on its transcript testimony we : time. witness, entitled at that a con- follow- Luster guilty. a con- times move Your Your trial can for en- 4. The ment was hearing first grand ensure with against pursue viction, trial of McNeal and When that mute “immunized” Banks before the same charade against obtain the conviction now is COURT: ing the recommendation of the District Attorney, this case. MR. a nolle has motion that ask men of the I have never seen prosequi COURT: after this prosequi. Attorney come ^[*] make a JURY DISMISSED —COURT trial prosecutor’s respect very commendably for a nolle parallels defendant, and jury ROSS charge in. his getting Banks. Banks and by for nolle prosequi. case be nolle was insufficient conviction, out sought in this has stated ^[*] presence” (To jury) first ADJOURNED I : jury, obtain a Bis of murder. The had six months to into before a different am If the his prosequi At attitude toward Banks’ case; not with prosequi. case, staging presence ^[*] going unorthodox attitude is the Court is follow- the federal habeas original but at McNeal’s Ladies and objection prosequied against Court that the Banks indict- second indictment District and entering he has asked then essentially at extended ^[*] he at Let yield questioned. please, sham any for indictment grant using has asked found is unable McNeal’s intent Attorney before District prepare jury a nolle gentle- time— a con- trial. ^[*] nolle trial jury this out “to

1149 post-conviction 9, and filed 1970, remedies 323, 331 n. 90 398 S.Ct. corpus petition. Swenson, 300; Fol 1757, his federal habeas Ashe v. L.Ed.2d hearing, lowing evidentiary 1970, 436, full 1, n. 90 S.Ct. 469; Florida, necessi 1189, district court concluded that v. 25 L.Ed.2d Waller ty prosequi 1970, 2, 387, for a nolle the first 391 n. 90 S.Ct. 397 U.S. precipitated 435; 1184, McNeaPs counsel’s v. Carolina L.Ed.2d North 2072, Pearce, 1969, Banks and conference with last-minute 395 U.S. 89 S.Ct. attorney. Consequently, Galloway Beto, habeas L.Ed.2d 5 Cir. Collier, petition denied, denied. McNeal cert. 400 U. 421 F.2d D.C., F.Supp. 27 L.Ed.2d 151. S. prohibition Because “[t]he II. against being punished, twice argument condensed form against being put jeopardy,” twice improper there no conduct Ball, 1896, United States v. 163 U.S. by his at the counsel first trial and that 662, 669, 1192, 1194, 16 S.Ct. 41 L.Ed. the state trial abused its discre- necessary it is to determine when granting long tion jury attaches in a trial. In impaneled had been States, 1963, Downum United 372 U. substantial evidence had been offered. S. 10 L.Ed.2d responds judicial The State that no recognized Supreme Court prosecutorial misconduct has been shown *5 jury impaneled occurs when is and to have occurred and that the district sworn, vesting the thus defendant with finding necessity court’s that a manifest right the valued to have his trial com prosequi for the nolle existed because pleted before that and that tribunal Banks’ Fifth Amendment claim so- jury. Hunter, 1949, See Wade v. 336 by licited clearly McNeal’s counsel is not 684, 689, 834, 69 L.Ed. S.Ct. 93 We seemingly erroneous. thus face the right” This “valued is abso uncomplicated applying of task the law lute, however, and determination jeopardy on double to the facts before jeopardy attached is the has first us. step on the road to decision on the III. jeopardy question, double and not regarding jeopardy The law double When, ease, jeopardy last. as in this recently carefully has been reviewed and attached, only then, inquiry has and explained by Supreme in Illi- Court judge who, shifts in his trial Somerville, 1973, 458, nois v. 410 U.S. discretion, sound must consider all the 1066, S.Ct. L.Ed.2d and circumstances to determine whether Mississippi, Court in Smith v. 5 Cir. necessity there is a manifest to dismiss Therefore, F.2d jury without a verdict or whether reference to these two cases we refrain public justice the ends of would other treating from prin- in extenso all of the wise be defeated. United States Per ciples policies theory and inherent in the ez, 1824, 579, 580, 22 U.S. 9 Wheat. jeopardy of double and instead direct 580, 6 L.Ed. 165. our particular attention to the factors problem moving gen- The' bearing which have a on the resolution eral formulation in Perez to the facts of the issue before us. complicated by an individual any rigid rules, pro absence which makes Amendment’s The Fifth categorization extremely person in earlier cases scription placing a supra Wade, difficult. at See offense 336 U.S. same for the twice through Supreme 69 S.Ct. 834. The Court applied to the states Somerville, continuing reject in Fourteenth while Due Process Clause rigid classification, gener- application did must distill and this Amendment approach Mary previously al from the decided retroactively. Benton made recognized cases at least lines two land, S.Ct. 395 Georgia, precedent. see Price L.Ed.2d general mary example given ap- generalization for this that a first The proach Downum, supra, correctly judge a mistrial5 declares impartial discretion, Somerville to be a case when, Court considered “an in his only a “where the mistrial entailed not delay reached, or cannot verdict defendant, operat- for the also reached could be a verdict of conviction post-jeopardy appeal ed al- as a continuance have to be reversed but would prosecution opportunity low procedural in error to an due obvious strengthen supra its case.” at Somerville, trial.” fatally 35 L.Ed. at 434. In McNeal’s case, at The 35 L.Ed.2d 431.6 delay nolle in in trial resulted fell indictment Somerville defective ostensibly of over six months and was class, potentially into this as would Smith,7 granted by judge the trial because prejudiced juror in getting “has out after found remote- simply does not even Our case into it is unable to make out ly relied on in Somer- resemble the cases 3, supra. case.” See footnote Since ville, followed have since or those which not, prosequi Mississippi does contained it. The state trial below first obviously not, preclude did reindict- prejudice hint that would have no retrial, practice ment and followed impartial impeded of an the attainment state trial court seem verdict; jury similarly procedural no er- tantalizing po- create a situation with a has been called our attention ror prosecutorial tential for misconduct. jury’s so as would warrant the dismissal policy implement state a reasonable responds to this ar justice. public serve ends of gument contending language that the precedent discharging The second line of rec used the trial ognized however, poten Somerville, dispositive of the reasons tially Supreme more useful to us. The discharge, behind the there was prose Court there noted that the declaration necessity manifest for the nolle defec necessity a mistrial based on “a rule or a qui, out of and that the arose *6 procedure tive prosecutorial manipulation” that itself [lends] Its ar counsel. of McNeal’s the conduct gument general an would be that rule the based on entirely different case. 93 successfully S.Ct. for moves defendant who a Presumably 1070, 35 L.Ed.2d at knowing 431. will mistrial, actions that his require such a case would the invocation jury, cannot result a trial to another repros of the Fifth Amendment’s bar jeopardy at the the of double invoke bar Beasley, ecution. 5 v. second trial. United States 1124; 1973, States F.2d United 479 Cir. face, granting On the mo- its of the 1147, Iacovetti, 1972, F.2d 466 5 Cir. prosequi v. 1152, tion for a nolle fits below 908, denied, 1973, 93 410 U.S. cert. squarely pri- principle. within this jury disqualified having suggested, member of was as 5. It has nor do we not been grand jury be, prosequi been a member of the that think it could that the nolle defendant). the indicted in this case differed in material is, respect mistrial, which Somerville, 7. In indictment under jeopardy most common source of double being which the tried did defendant was claims. allege necessary not elements of crime, defect, 1916, Mexico, could not be this which 242 See Lovato v. New ap- remedied, 199, 107, asserted on could have been 244 61 L.Ed. peal post-conviction proceeding (reprosecution or in a barred when judgment discharged prosecution final overturn a of conviction. after realized that Smith, investigation re-arraigned In after a of careful defendant had not been surrounding the circumstances a remark his demurrer to the indictment was over- by jurors, ruled) ; Thompson States; 1894, made one of the the trial v. United juror premature- 271, 73, concluded that that 146 155 15 39 L.Ed. S.Ct. ly opinion important (reprosecution an formed about an not barred when mistrial following discovery element of the case. declared one

1151 ing 963, Banks on 35 L.Ed.2d 270. From this the stand while was S.Ct. premise, still under rule main for same flows State’s indictment actively engages Mississippi apparently a defendant in a offense. has no who general but, immunity statute, in retro- course of conduct calculated necessi spect, granting steps could tate the who certain have been tak- mistrial, actually mistrial, en the likeli- does not that would have increased Instead, relying testifying.8 similarly dou hood Banks’ barred from on a prosecutor rely on ble defense at a second trial. chose an informal Pridgeon, “understanding,” which he felt he had See States v. 5 Cir. United 1972, 1094; Although Kellum, F.2d v. with 462 Banks’ counsel. States Walden, may 1971, 925, completely un- 4 Cir. F.2d this been 448 have circumstances, States, Loux United 9 Cir. reasonable under continuing denied, possibility F.2d cert. real that Banks 393 U.S. L.Ed.2d Fifth Amendment’s S.Ct. See invoke the Jorn, protection cannot, also United States 400 U. without more, 470, 487-488, S. so create the 27 L.Ed.2d “blamed” on McNeal as to necessity (Burger, concurring). C. manifest J., that would allow prosequi ends to insure that the no We take issue either ad- rule public justice were not defeated. by but, upon vanced read- our ing record, nei- we conclude that The final factor influenced applicable ther is us. actual before situation was the invocation plain by It is from the record Fifth that the situ- Amendment Banks. The prosecutor ation which led the to move “the district court concluded invo- by against for privilege a nolle caused cation self-in- largely confluence of three factors. crimination the result pursued petitioner’s course The first factor was Luster’s testimo- counsel; a solicita- course was a ny, which, hearsay nature, due to its accept tion the mistrial.” We prosecutor could not be used finding of fact of the court—(cid:127) district support the case There McNeal. Banks’ use of the Fifth Amendment link, no hint of a causative largely the result of the actions however, between McNeal and his coun- because, sel on the one hand counsel— and Luster’s vacilla- clearly us, before record erro- tion on the other. The sim- see, g. 52(a); e. neous. Fed.R.Civ.P. ply questionable took a chance on a wit- Corpus Beto, Cir. F.2d such, ness and lost. As factor *7 Nevertheless, the district court’s absolutely no to assistance the State legal conclusion—that is this action tan- attempt or its to a manifest establish to a tamount solicitation of mistrial— a prose- imperious necessity for the nolle untenable. qui. prosecutor’s The factor the second The State would have liken us our testimony the of co-indictee reliance on to ones which concerned an unavail link murder. Banks to McNeal able acknowledges witness. It if to Without reference to the tactics used the witness through slop unavailable testify, see py prosecutorial make to Banks available preparation, then there 4, supra, the footnote clear that is no necessity manifest for a mistrial. prosecutor by plac- See, g. took chance another e. Downum, supra; Cornero v. condoning prior 8. Without tactic the of obtain- the to on Banks indictment ing against Banks, initial the indictment Neither these last trial. of steps totally accomplished, once that had been the a subse- would have barred “immunizing” easily prosecution quent Banks, trial of Banks either could of preceded have demon- the McNeal trial. have been more concrete Alterna- tively, sought have lenient attitude could stration of the State’s prosequi nolle or a him. “remand to the files” toward cising his and that own discretion States, 48 F.2d 69. Cir. personally made final decision litigants in a Conversely, because both plead have Banks Fifth Amendment. high of held to levels trial are criminal supra Jorn, standards, see professional facts, no On conduct was these Ross’ argues legitimate 486, 91 de- action of a more than the contacting makes if it defendant who is the im- fense who an counsel unavailable, any resultant portant then witness his co-indictee—and witness —a reprose- not a bar mistrial should mutual counsel to discuss a matter of Professional of importance cution. ABA Code to them. we need While Cf. 7-109(B). Responsibility go The State say DR so far as it was Ross’ by leap faith con- duty this, a final of then takes no do have doubt that we cluding discussing privilege do so entitled to it and that to do relinquish any wit- self-incrimination of client’s need not his convincing attorney rights right and his ness the valued have —here attorney plead the jury. to have his client his the first trial concluded before Amendment, the witness Fifth makes no conclude manifest We just as if the defense coun- as unavailable necessity public justice no ends outside of sel had secreted witness granting prose required of the nolle jurisdiction of the dis- court. We prose qui in McNeal’s first trial. agree. position was uncomfortable cutor’s premise We start from the that an in nothing unusual than caused more coerce, may force, bribe, dividual or vacillating on a witness and reliance privilege threaten a witness claim testimony he had not suffi one whose against self-incrimination. See 18 U.S. forthcoming. ciently insured would be States, C.A. Cole United § acting authority Ross, within this denied, Cir. 329 F.2d cert. responsibility, professional did more no 12 L.Ed.2d 497. point out what at that time was than Herron, also See United States v. N.D. presentation weakness Cal.1928, 28 F.2d None these granting We that the case. hold State’s tangen forms conduct been even order nolle to allow tially Ross, attributed McNeal’s coun opportunity up shore the State Instead, preparing sel. course of Fifth violated McNeal’s that weakness client, for the trial of his Ross contacted rights. Amendment and Fourteenth key attorney Banks and his witness Kellum, apparently impressed on Kellum reaching this decision we are In danger testifying Banks’ while strong public interest unmindful still under indictment for the same of jus- efficient administration fense, protec and reminded him of the protected generally tice. This tion afforded the Fifth Amendment. prior who, granting or de- wholly This conduct was different than nying motion for a mistrial suggested by the secretion of a witness prosequi, painstaking ex- should make a perceive improprie the State and we no amination of all facts and circum- ty in it. Only request. that underlie stances *8 investigation According prosecutor’s later can a such careful judge properly meeting at exercise his discre- testimony, with Banks Jorn, supra opportunity recognized first Ross in Perez. the trial was tion as 547; Smith, 487, him. su- had discuss the case 400 91 had S.Ct. U.S. suggested pra. Additionally, it is not It is clear from the record that directly investiga- judge prevailed at this on Banks first made no Ross state trial agreed prosecu- all tion that at into the reasons behind the time. Rather might had, request.9 tor’s If he McNeal counsel Kellum was exer- times Banks' prosecutor’s prosequi, 9. The district court’s Memorandum of De- for a explore states, requiring cision him to alterna- “While the trial without immediately avenues, state court acted on the reflects that tive record

1153 beginning it has subjected Almost have been to this consti- never the defense double held that impermissible tutionally second trial. jeopardy else must raised at Reversed. Wilson, waived, v. 32 it is States United Judge (dissent- COLEMAN, Circuit (1833). 150, This 8 L.Ed. 640 U.S. ing) : principle in numer has been reiterated invariably does, 1967, my recently As Brother he as cases. As ous Dyer it, Grogan perfectly v. has written constructed reaffirmed Fifth Circuit distinguished 1967, opinion, clarity. Cir., States, for its I F.2d 5 394 United agree splendid 830, exposition 287, with its 89 con- U.S. S.Ct. cert. denied 393 also, principles generally Brady applica- 97, stitutional v. 21 L.Ed.2d 100. See Cir., 399, jeopardy. problem States, 1928, 24 F.2d ble to double The 8 United agree 603, 10, majority’s I do 49 with the denied S.Ct. 73 cert. 278 U.S. Hudspeth, application principles 531; McGinley 10 of those v. to Mc- L.Ed. 523; Cir., 1941, Neal’s F.2d Barker case. 120 v. Cir., 1964, Ohio, 328 F.2d 6 State Bogan When James Weems went 582; Cir., States, v. 9 Haddad 9, work on March there 1968 no rea- 511, 1965, denied 382 F.2d cert. U.S. 349 anticipate day son to that before 153; 15 L.Ed.2d Unit 86 S.Ct. corpse, was out he would be a made so Buonomo, Cir., 1971, 7 441 ed States v. robber, escaped an armed who to Chi- cert. denied 404 92 F.2d U.S. cago, apprehended where was later 81; 146, 30 L.Ed.2d United States S.Ct. Nevertheless, per- extradited. all Scott, 1972, U.S.App.D.C. 323, 464 v. 150 sons, including killers, are entitled to 12(b)(2), F.2d Rule Fed.R.Crim.P. specified protections certain vouchsafed by the The Court held Constitution of District since the United States. post-conviction was not informed attack, On McNeal his attor- collateral how- ney ever, anyone else that could not for we should be certain that the Con- requires constitutionally the same offense stitution it before we set free a placed convicted twice did murderer. right subsequently waive his to raise the readily rely We could on the able claim, citing Zerbst, Johnson 304 U.S. ported opinion of the United States Dis- (1938) 82 58 L.Ed. 1461 Judge, trict who held that McNeal was Cir., 1972, Cook, Winters relief, Collier, entitled to no McNeal v. on submission en F.2d 1393 [now banc]. F.Supp. (N.D., Miss., 1972). I begin- Hard and fast waiver rules are must, however, make some observations ning exceptions, to meet with wit- as my own. States, 1973, nessed Davis v. United McNeal’s conviction was affirmed 93 S.Ct. 36 L.Ed.2d appeal, State, McNeal v. 231 So.2d 491 Henderson, 1973, Tollett 216 and (Miss.1970). question The of double 1602, 36 L.Ed.2d 235. jeopardy was not raised in the either question McNeal, now is whether appeal. trial court or on After waiver, even in the absence of a is enti- Supreme Court had affirmed the corpus tled to habeas relief on the collat- conviction, petitioner retained new coun- erally plea jeopardy. raised of double purpose launching sel for the a collat- respond negative. eral petition attack. Leave to file a findings I refer to the of the District writ of denied, error coram nobis § Court, F.Supp. at 488: Mississippi 1992.5 Code of 1942. The attorney previously as- “Banks’ corpus proceedings federal habeas fol- and the the sheriff district sured both lowed. fully any finding *9 judge advised and informed and was of fact informed to contrary clearly necessitating erroneous. See foot- all matters 3, supra. note con- prosequi.” the record review of Our judge so not the trial was that vinces us making might ter- ment, I be that his waive would attorney Banks that my It was ... against rible mistake. privilege right invoke to my decision, was client sole because boy. assurance This self-incrimination. young . black indict- pending despite a made was attorney later because, ep- attorney as also recalled ment McNeal’s testified, a review isode : evi- the state’s that convinced was conversations several A. I had convict, to not sufficient was dence during attorney) (Banks’ with arrange with thought he could I don’t remember day ... light for a prosecuting officials During the many. . . . how for his charge treatment or favorable my Mr. Mc- defense course Neal, morning theOn client. remember, course, as I I attorney conference held a district (Banks’ trying upon prevail to Banks, his testimo- reviewed with testify. attorney) let him to attorney day, ny. his the same On have I did . And believe I tes- again would that Banks indicated conversation final one tify. permission court’s with witness, Banks, final immediately prior his to “When stand, at- testify. to the McNeal’s being called was torney to called to talk with for a recess asked Q. con- in that occurred What counsel, his with Banks and confer . ? . . versation present in the courtroom. who was I that . I am certain . . A. honored, and after a prevail upon to tried have must attorneys returned to conference both (Banks) (him) to testi- not to allow to announce that Banks the courtroom I, myself, fy. tried sure that I am permitted testify. not be would (him) it would be to convince only privilege may that the Aware that he Banks’ interest to his client protec- claim its invoked tion, those who testify. my And recollection the trial called Banks as a (he) must have interrogated witness him. On agreed him didn’t allow because he counsel, advice of Banks refused testify.” testify. emphasized this is It must be “During evidentiary hearing, Attorney a case began which District attorney Banks’ summarized the event no su- a trial and thereafter with abrupt prompted his decision: pervening simply to nol event decided Q. point you Now, at what did doing pros hope an- better change your to let mind not Banks day. inde- other Such a course would testify? jeop- fensible, clearly amount to I in the anteroom A. When ardy, severe the most and would warrant my (McNeal’s attor- client and condemnation. ney) I then ... decided exactly oppo- The facts here are (McNeal’s attorney) . I told Court, site. As found the District changed my I that I had mind and during attorney testified going permit was not him tes- representation his defendant thought tify, because I it was trying “prevail” on Banks’ testify. interest not best I am testify. Despite attorney not to let him referring there to Banks. attorney efforts, that had assured these Q. prompted Was this decision the sheriff and the district attor- both by anything by any- that was said right ney that his client would waive the one? privilege self-in- invoke very day On the No, crimination. A. I sir. realized there stand, (McNeal’s Banks was called witness attorney) when and I repeated. The de- talking these assurances were were over matter that placed under fense had never Banks sub- had not received a definite commit- *10 poena Yet, Banks, unexpected as a witness. when juror than if a had discussed objection with no him or witness, case with a or some like from lawyer, was about to take witness event. counsel, stand, defense was then allowed inescapable importance, Of this situa- to take him off the stand for a confer- tion deliberately was precipitated solely ence, attorney. which included his Ex- Banks, objec- defense. with no perienced lawyers instantly will counsel, tion from him or his was in the recognize this, directed un- toward an very taking act of the stand when the subpoenaed opposing witness, as a most defense, contrary customary to all bizarre, wholly unknown, if proce- not precedent, called him off for the “vocif- quite dure. It evident that defense exchange”. erous This was the last counsel to make wished one last effort to struggle frantic to head off the testimo- “prevail” lawyer on Banks’ to let ny of only the one witness who him majority take the stand. As the necessary knew the facts to a conviction states, opinion exchange” “a vociferous robbery of an armed murder. It is not followed, but last ditch effort enough say attorney to the district worked. completely Banks’ counsel simply disappointed. was position versed the theretofore stead- inept handling fastly of Banks’ immuni- maintained all efforts to ty status should none contrary. be of At the brink of the Bubi- beneficiary concern. He con, contrary was neither the expectation, to all Banks phase nor the victim of testify. of the case. refused to The fundamental issue was McNeal’s Advising a man of his constitutional guilt innocence, not how Banks was rights certainly impermissible not an being handled. Banks was not McNeal’s “prevail” act. Efforts to on him not to lawyer witness and McNeal’s was not testify, importunities minute, at the last lawyer. Banks’ calling one off the witness stand who is client, neither one’s stratagem witness nor his are A death knell which causes entirely matters of an lawyer different charac- a witness and his on welsh as- ter, especially setting within the given, of this repeatedly surances assurances case. upon attorney which the district had ev- ery rely up reason to and even after lawyer justified Even if one in ca- he called the case to should not be joling lawyer’s another client violate justice. allowed to abort agreements previously given, greatly doubt, Banks was “advised” Under the circumstances of this collat- stay off the witness stand. He attack, eral I do not believe that importuned, persuaded, prevailed requires plea a belated Constitution of upon stay of re- off. This the face prior produce injustice jeopardy to availability. peated of his assurances gravity. the most critical In the words I do not Defense counsel knew all this. Perez, majority opinion, cited in the castigate (now de- defense counsel pros nol mandated “mani- doing ceased) for what he could to save necessity”, prose- fest caused his client. I do think that his activities defense, procured by cution objectively judged un- must and that necessary prevent the “defeat professional der minimal code of public justice”. ethics assurances from one member deference, I should think that With the Bar to another worth at least are firmly plant judi- enough making its justify this Court should counsel ground, upon cial fee the solid put crucial decision to a defendant try issue, that mere thought, is sworn trial. To further extend the prosecution-induced abandonments deprived when the of its ease State is tolerated; but, the trial will not unsuspectingly relying upon while such hand, hour ought the other eleventh defense assurances, there to be another stratagems prior violation all day. attorney as- I think the district leading suppression surances event this case was met with an no less *11 necessary will indispensably evidence

inexorably fate. the same meet respectfully dissent.

I REHEARING FOR PETITION

ON REHEAR- FOR PETITION AND BANC EN

ING

PER CURIAM: Rehearing denied Petition having polled

and the Court the members one of majority the Circuit and a Court regular service

Judges active who are it, (Rule having voted favor Procedure; Appellate Rules of 35 Federal 12) Peti- Rule Fifth Circuit Local de- Rehearing also En Banc is

tion for

nied. Judge (dissent-

COLEMAN, Circuit

ing) : in the dis- reasons enumerated For the original panel opinion, re-

sent denial of

spectfully dissent

hearing en banc.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

HENRIKSEN, INC., Gibson d/b/a Center, Respondent. Discount

No. 72-1271. Appeals,

United States Court of Fifth Circuit.

July 10, 1973.