DAWKINS, Chief Judge.
Petitioner's habeas application was received by this Court and permitted to be filed and prosecuted in forma pauperis.
March 3, 1972, we directed the State to file the complete record in this matter with this Court and further that the State, through its District Attorney for the Twenty-Sixth Judicial District Court, Bossier Parish, Louisiana, should file a brief of authorities or otherwise plead within the twenty days in response to applicant's allegations that his conviction was unconstitutionally obtained by perjured testimony of Floyd E. Cumbey; that collusion existed between that State's witness and the authorities of Bossier Parish; and that he was denied his right to appeal and to have the aid of counsel on appeal.
The record has been received, including the entire transcript of the trial (660 pages) and another volume of 14 pages of rebuttal transcript, and an additional volume with the Minutes of the Court, including motions, the habeas corpus petition of applicant, and judgment denying same. A general denial has been received from the respondent through the Attorney General's office, but no brief or other pleadings.
Applicant has alleged in his petition, through counsel of record, Mr. J. B. Wells, that he was sentenced to life imprisonment on June 19, 1967, after trial, and raises three questions as to the alleged invalidity of his sentence, viz.,
The record before us shows that applicant had the benefit of most able counsel before and during his trial, through Messrs. Joe T. Cawthorn (now deceased) and J. B. Wells, who were retained and vigorously defended applicant. There is nothing in the record that indicates that retained counsel ever filed in the trial Court any motion to withdraw as counsel because of the indigency of applicant or that applicant desired to appeal. It can only be assumed that applicant and his counsel did not desire to appeal and that an out-of-time appeal at this late date would be of no avail as the habeas corpus application relating to the same questions has been denied by the State District Court and the Louisiana Supreme Court. See Johnson v. Wainwright, 456 F.2d 1200, Summary Calendar (5th Cir., February 25, 1972). The application for writ as to question III above therefore is denied.
As to question I presented above, this also is without merit and is denied as the jury heard the testimony of all the witnesses including applicant and the main witness for the State, Floyd E.
The record before us is wholly silent as to question II. There is no evidence in the record or response from the State, with affidavits or otherwise, so that we can determine if applicant was in any wise prejudiced in his trial. It can no longer be questioned that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215. Moreover, the jury is entitled to know of "any understanding or agreement as to a future prosecution," Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, 1972, or as to any quid pro quo for Cumbey's testimony.
If there was an understanding between Cumbey, the prosecutor, and the Judge, as alleged, which was not communicated to defense counsel or to the jury, then the State Court should determine whether the failure to make the disclosure was harmless beyond a reasonable doubt. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966); Vaccaro v. United States, 461 F.2d 626 (5th Cir., 1972).
It is noted in the record and from judicial notice that the composition of the Twenty-Sixth Judicial District, comprising Bossier and Webster Parishes, Louisiana, has changed substantially since the trial and conviction of applicant: The Honorable O. E. Price, Presiding Judge at the trial now is a Judge of the Louisiana Court of Appeal, Second Circuit; The Honorable Louis E. Padgett, Jr., who was the District Attorney who prosecuted the case of applicant, is now District Judge in said Twenty-Sixth District; The Honorable Monty M. Wyche, who was Assistant District Attorney in applicant's case, is now a District Judge of the Twenty-Sixth Judicial District; The Honorable Enos C. McClendon, Jr., the sole remaining Judge of the Twenty-Sixth Judicial District, already has rendered judgment denying applicant's State habeas petition. He did not even address himself to the issues raised by question II. The Honorable Charles A. Marvin is now District Attorney of said Twenty-Sixth District, recently elected, and was and is a partner in the firm with Mr. J. T. Campbell in Minden, Louisiana, Mr. Campbell being associate counsel with Mr. J. B. Wells for applicant herein on his habeas petition in the State Court.
On the allegations of the petition herein an evidentiary hearing must be held.
It is therefore ordered, that the State of Louisiana, through the office of its Attorney General invoke in the State Court an evidentiary hearing within thirty days to determine the veracity vel non of the allegations made by applicant in his petition as to question II hereinabove set forth. Cline v. Beto, 418 F.2d 549 (5th Cir., 1969). This Court is not ordering a trial de novo of Favor. We are not concerned with his guilt or innocence but only as to whether due process of law, under the State and Federal Constitutions, was accorded him in the State proceedings which resulted in his conviction and sentence. The inquiry to be conducted by the State Judge according to this Order should be limited to a factual determination as to the existence vel non of collusion between Cumbey, the prosecutor, and the trial Judge; whether it, if such there was, was communicated to defense counsel and the jury; and whether or not failure to reveal, if such indeed occurred as alleged, was harmless beyond a reasonable doubt.
To that end, it is further ordered, that the Attorney General of Louisiana petition the Supreme Court of Louisiana to designate a State District Judge presiding in a district outside of the Twenty-Sixth Judicial District Court to preside over the evidentiary hearing, and to appoint a District Attorney outside the Twenty-Sixth Judicial District to
Jurisdiction of this case is retained by this Court pending the final outcome of the State Court evidentiary hearing. A full written transcript of that hearing shall be made, and filed with us, as well as written findings of fact and conclusions of law to be made upon the factual and legal issues on question II presented by petitioner, said findings and conclusions to be made by the State trial Judge who conducts the evidentiary hearing, all of which will be reviewed by us before disposing of this habeas application.
Of course, the State may decide that an evidentiary hearing is not desirable, in which case we shall be entitled to find that the allegations of petitioner's application are true and the writ of habeas corpus will be granted.
Pursuant to our order of May 16, 1972, we have received from the office of the Attorney General of Louisiana a copy of the motion he filed with the Louisiana Supreme Court for appointment of a Judge ad hoc, appended hereto as Exhibit No. 1. We also have received from the Clerk of the Louisiana Supreme Court its ruling, copy of which is appended as Exhibit No. 2.
We have obtained the Minutes and Judgments of the Twenty-Sixth Judicial District Court for Bossier Parish, Louisiana; a certificate from the Records Office of the Louisiana State Penitentiary, Angola, Louisiana, showing that Cumbey never was incarcerated in that institution; and a copy of a letter written by the Honorable W. E. Waggonner, Sheriff of Bossier Parish, dated October 22, 1970, showing that Cumbey was released without serving any part of his sentence.
Yates filed a petition for habeas corpus in this Court on July 21, 1970. Since he had not exhausted State Court remedies, we directed him to refile his petition and ordered an evidentiary hearing. Upon request of the then District Attorney, Honorable Louis E. Padgett, Jr., this Court granted a delay for conducting the evidentiary hearing for thirty days from October 27, 1970. Thereafter, once Yates' sentence was reduced by the State Court as described above, and he was surrendered to the Federal Prison System, we received a handwritten motion by him to withdraw his petition for a writ of habeas corpus in this Court and to dismiss the suit, which motion was granted by us. Copy of this document is appended as Exhibit No. 8.
As heretofore noted in our original order, Favor alleges that there was collusion between "star" witness Cumbey, indicted on the same offenses—murder of an elderly couple in Bossier Parish—and the Bossier Parish authorities which was not revealed to defense counsel or to the jury. We there indicated an earlier habeas application entertained by the Honorable Enos C. McClendon, Jr., was dismissed in a written opinion which did not address itself at all to the "collusion"
The Supreme Court in Fay v. Noia, 372 U.S. 391, 401-402, 83 S.Ct. 822, 828, 9 L. Ed.2d 837 (1962), wrote:
Of course, federal courts are charged with making final federal constitutional decisions. Those decisions may be based on facts adduced at the federal district court's evidentiary hearing or on the record as submitted by the State Court or by a State Court's evidentiary hearing which provides a full, fair, and adequate determination of applicant's claims. No matter the method chosen, the federal district court makes the independent determination of the facts and measures them against federal constitutional standards. This is not to say that in any manner we act as an appellate court or an overlord of the State Court judiciary. As Chief Judge Tuttle wrote in Stickney v. Ellis, 286 F.2d 755, 757 (1961), "The District Court's review on habeas corpus of a state conviction is not `a case of a lower court sitting in judgment on a higher court. It is merely one aspect of the Supremacy Clause of the Constitution whereby federal law is higher than State law.'"
Mindful of the statutory directive, 28 U.S.C. § 2254(c), in the interest of comity, to stay our hand in cases where applicants have not exhausted State remedies, initially we sent Favor back to the State Court, where he was required to present his allegations of constitutional deprivations for State scrutiny. The Court in Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, explained the rationality of exhaustion of State remedies:
Our sensitivity to this mandate and the federal jurisprudence's insistence upon it convinces us that State Courts should be given every opportunity consistent with constitutional rights of habeas applicants to right their own wrongs. This common-sense policy does not reflect any reluctance on this Court's behalf for exercising its duty. Indeed our retention of jurisdiction in this and other similar cases affirms our attention to federal constitutional affairs. Nevertheless, we recognize that federal interference is necessary only after the State allegedly has refused to provide any defendant due process under the federal Constitution. We have directed many applicants to file and refile their petitions for habeas relief in State Courts. Generally, the responses to our Court-ordered hearings have been thorough and fair investigations of the bases for defendants' applications; and most often we have adopted the findings of fact made by the able State District Courts.
Here, we directed Louisiana's Attorney General to petition the State Supreme Court to assign a State trial judge ad hoc from outside the Twenty-Sixth Judicial District to conduct an evidentiary hearing wherein Favor might use the State's post-conviction habeas remedy to re-present his claim which had not been disposed of by any of the State Courts. In Milton v. Wainwright, 396 F.2d 214 (5th Cir., 1968), Chief Judge Brown asked a rhetorical question:
His answer recognizes that State Courts, to the same extent as federal, have duties and responsibilities in the administration of federal Constitutional law:
While we are aware of amazingly glaring refusals by Louisiana's Supreme Court to apply federal constitutional law
With deference, we are compelled at this point to observe that if Justice Barham, on May 25, 1972, in confecting his concurring opinion in the case before us, where he chose to characterize our order of May 16, 1972, as a "contumelious abuse of authority," had spent as much effort in reading Cline v. Beto as he did in digging through the dictionary to find such a castigating appellation for our order, in which Cline was expressly cited, perhaps his feelings would have been ameliorated to some extent at least, and he might not have used such harsh language.
Our only interest in this matter is to enforce the right of personal liberty when that right has been denied and a person confined. We have been granted wide discretion in determining the facts
In light of Louisiana's Supreme Court ruling herein, we conclude that our original order, which most unintentionally exacerbated the Federal-State friction potentially present whenever the writ of habeas corpus is applied for by state prisoners, should be modified.
Clearly, in light of developments here, we would have the right to release Favor. Fay v. Noia, supra; Cline v. Beto, supra. Nevertheless, the remedy we fashion is in response to our duty in relation to habeas matters and not in reaction to the State Supreme Court's opinion. Consequently, we now grant petitioner's application for the writ of habeas corpus to the extent that the State retry petitioner within a reasonable time, not to exceed thirty days from this date. His convictions and sentences hereby are nullified and set aside.
For the reasons set forth in our first order, we direct that such new trial be conducted in the Tenth Judicial District of Louisiana, in Natchitoches Parish, before one of the Judges of that Court; and that the Louisiana Attorney General assign a District Attorney from outside the Twenty-Sixth Judicial District to serve as prosecutor.
If this is not done, as directed, we shall order his immediate release from the Louisiana State Penitentiary, to be prosecuted no more under the indictments by the Bossier Parish grand jury.
EXHIBIT NO. 1
SUPREME COURT OF LOUISIANA
MOTION TO APPOINT JUDGE AD HOC
Pursuant to an order issued out of the UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, SHREVEPORT DIVISION, in the matter of JACK G. FAVOR, P.M.B. 65386, versus C. MURRAY HENDERSON, WARDEN, LOUISIANA STATE PENITENTIARY, civil action No. 17,628, a copy of which is attached hereto and made a part hereof, the office of the Attorney General of the State of Louisiana, through the undersigned counsel respectfully requests this Honorable Court to order an evidentiary hearing on the question of the veracity vel non of an allegation made by Jack G. Favor to wit:
and further in compliance with the said order issued out of the UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, SHREVEPORT DIVISION, to designate and appoint a State District Judge outside of the Twenty-Sixth Judicial District Court to preside over the evidentiary hearing.
EXHIBIT NO. 2
SUPREME COURT OF LOUISIANA
MOTION TO APPOINT JUDGE AD HOC
The motion is denied—
The United States District Judge before whom the application for habeas corpus is pending, and who states in his order that he is retaining jurisdiction of the case, is without authority to order the Attorney General of Louisiana to apply to this Court to appoint a state court judge to conduct an evidentiary hearing in the state court on a claim made by a petitioner in a habeas corpus proceeding pending in the United States District Court. Since the case is pending in the United States District Court, that tribunal has ample authority to conduct an evidentiary hearing of its own; it cannot, and should not, request such a proceeding in the state court, where petitioner has already applied for and has been denied relief. See State ex rel. Favor v. Henderson, No. 52,122 of our docket, La., 256 So.2d 641.
Barham, J., concurs with written reasons.
BARHAM, Justice, concurring.
A federal district judge has here, in his exercise of jurisdiction over a federal writ application, tried to exercise supervisory jurisdiction over a state court, in fact, over the Louisiana State Supreme Court. If that federal district court believes under its consideration of a federal writ application that an evidentiary hearing is required before a judge other than the trial court judge (who is the only judge designated by state law to consider this if it were a state writ), it should comply with the federal law which mandates the federal court to hold such a hearing. The federal district court has neither the right nor the power to order a state district court to conduct the hearing for the federal district court under a federal writ application. It is especially inappropriate to ask a state district court to hold such a hearing when that federal court states its concern is with alleged collusion between the state trial judge and other state officials effectuating a denial of due process for the applicant. If the federal court has such a strong conviction about the need for an evidentiary hearing to determine the merits of the application before it, that court cannot absolve itself of its obligation by threatening a state court to release the convict if the state court does not act pursuant to the federal court's order. The federal court cannot wash its hands of the blood of this deed through this contumelious abuse of authority. The federal law does not grant to the federal court the right to make the assumption that the allegations are true without having an evidentiary hearing. Nothing permits a federal court to threaten that convicted state prisoners will be turned loose if the state court does not act as requested by the federal court when that request is neither authorized by law nor even contemplated. A reasonable request for cooperation may often be, and it should be, responded to by courts in both systems, and respect and reciprocity are to be sought between the systems. Here, after this state has determined through its highest tribunal that there was no merit in relator's claims, a contrary federal determination should not shift to the state the expense of special counsel and the cost of assignment of special court personnel including the judge. This is a gross encroachment upon the assignment of separate functions between the two systems. There is authority for an adequate disposition to be made of the matter in federal law and in the federal court. It should exercise that authority if it is so persuaded. It should not usurp authority not granted and totally unneeded. Again, respect between the systems depends upon restraint. See State ex rel. McNeely v. Henderson, 256 La. 869, 239 So.2d 364.
ORDER DIRECTING THAT RECORD BE SUPPLEMENTED BY ADDING THE FOLLOWING EXHIBITS TO CERTIFIED COPIES OF DOCUMENTS ATTACHED TO ORDER OF JUNE 2, 1972
Since entry of our Order of June 2, 1972, we have obtained from the Clerk of Court, Twenty-Sixth Judicial District, Bossier Parish, Louisiana, the following certified copies of documents pertaining to this habeas case, which should be appended as exhibits to that Order to complete the record upon which our Order was based:
EXHIBITS A and A-1: Minutes of Court, dated April 25, 1967, showing Cumbey pleaded guilty to murder without capital punishment, on the day after Favor's trial began, while the jury which tried him was being selected. (See Exhibit C.)
This also shows that on December 11, 1967, some four months after Favor's conviction, Cumbey was allowed to withdraw his plea of guilty, with no reason being given; and on the same day pleaded guilty to two counts of manslaughter, receiving two 21-year sentences. (See Exhibits Nos. 3(a) and 3(b), appended to our Order of June 2, 1972.) On the next day, December 12, 1967, Cumbey was released, without serving a day of any of his sentences. It is common knowledge that two days later he murdered two women in Tulsa, was later convicted, and now is serving a life sentence in the Oklahoma Penitentiary. See also Exhibit No. 5—Memorandum from Records Clerk, Louisiana State Penitentiary; Exhibit No. 6—Letter from W. E. Waggonner, Sheriff, dated October 22, 1970; Exhibit No. 6-B—Bossier Parish Jail Day Book—showing original entry under date of "12-12-67," originally reading "Transferred to Angola," being stricken through, the word "Released— W. E. W.," being the Sheriff's initials, being written thereon above the entry stricken. This also is referred to at Page 426, and Footnote 2 on Page 427, of our Order of June 2, 1972, wherein we stated ". . . but the jury in convicting Favor was told he, Cumbey, would serve a life term in the penitentiary", citing five places in the State Court trial transcript; Exhibits B and B-1, Minutes of the Court showing Cumbey as having pleaded guilty to two counts of manslaughter, on December 11, 1967, and receiving two 21-year sentences. See, also, Exhibits Nos. 4-A and 4-B, being written judgments of sentence, signed by Judge O. E. Price, on December 11, 1967;
EXHIBIT C—Minutes of Court in murder trial of Favor;
EXHIBITS D and D-1—Minutes showing Donald Lee Yates, charged on two counts of murder, on 11-27-67, withdrew his plea of not guilty in both cases, being sentenced to life in the Louisiana State Penitentiary on November 29, 1967.
These exhibits further show that on February 1, 1971, after Yates had filed a second petition for habeas corpus in the State District Court, upon this Court's direction, in which we also ordered an evidentiary hearing, the State District Judge entered an order reading, "The writ of habeas corpus herein is granted. The sentences of the Court, imposed under Docket Nos. 35,520 and 35,521 are recalled and vacated." No evidentiary hearing was held.
As noted at Pages 426 and 427 of our Order of June 2, 1972, Yates then received two sentences of 17 years each, to run concurrently, and concurrently with a federal sentence of 20 years for bank robbery which began in 1964; and, as stated in our June 2 Order, the State Judge provided, "In the event Yates is paroled by Federal authorities, the remainder of his State sentences are to be suspended." See, also, in this connection, Exhibits 7-A and 7-B, appended to our Order of June 2, 1972.
EXHIBIT E—Suit by former District Judge O. E. Price, No. 51650, Twenty-Sixth Judicial District Court, moving to recuse Charles A. Marvin as advisor to the Grand Jury, filed on June 13, 1972 (the Grand Jury having convened itself,
Although not shown by the record, Judge McClendon then recused himself in the case and designated Judge Frank M. Dougherty, of the Third Judicial District Court, Claiborne Parish, Louisiana, adjacent to Bossier Parish, as judge ad hoc, to conduct a hearing. Exhibit I is the transcript of the hearing conducted by Judge Dougherty, June 22, 1972, in which he recused Mr. Marvin and upheld Judge McClendon's order that the Grand Jury should not consider the Favor case.
EXHIBIT J—Order signed by Judge Dougherty under date of June 21, 1972, in which he ". . . ordered that Charles A. Marvin, District Attorney, be and is hereby recused in these proceedings or in any proceedings arising out of the trial, conviction or sentencing of one Jack Favor and the release of Floyd Cumbey."
EXHIBIT K—This is a notice filed by Mr. Marvin, addressed to Judge Dougherty, as Judge ad hoc, after the Judge's ruling, giving notice of Mr. Marvin's intention to apply to the Louisiana Supreme Court for writs of certiorari, probition, and mandamus. He allowed Mr. Marvin until June 23, 1972, to file this application, which was done.
EXHIBIT L—This is the order of the Louisiana Supreme Court dated June 23, 1972, in which Mr. Marvin's application for the writs was granted on the recusation motion.
EXHIBIT M—is a grand jury indictment returned on July 25, 1972, against Judge O. E. Price, charging him with perjury in his testimony before the Grand Jury. This indictment presently is pending, the defendant having not yet been arraigned.
EXHIBIT N—is an indictment against Judge Louis H. Padgett, Jr., returned by the Grand Jury July 25, 1972, also charging him with perjury committed before the Grand Jury. This indictment presently is pending, the defendant having not yet been arraigned.
As noted at Page 425 of our Order of May 16, 1972, in 1967, when Favor was tried, convicted and sentenced; when Yates pleaded as above stated; and when Cumbey, after pleading guilty to murder without capital punishment, on the day after Favor's trial began, received a life sentence; was allowed to withdraw his two pleas on November 11, 1967, with no reasons being given, and receiving two sentences of 21 years each for manslaughter, and having been released the next day, December 12, 1967—Louis E. Padgett, Jr., then was the District Attorney for the Twenty-Sixth Judicial District Court of Louisiana, Bossier Parish, and Judge O. E. Price then was the District Judge handling these cases.
Moreover, it is necessary that we correct the title page of our Order of June 2, 1972, wherein we showed John T. Campbell as one of the attorneys for Favor in this habeas proceeding. However, as brought out in Mr. Marvin's answer to Judge Price's motion, we were mistaken in that; Mr. Campbell did serve as one of Favor's attorneys in the State Court habeas corpus proceeding, but he had not served as such since January 1, 1972.
It is ordered that the Clerk of this Court file this Order in the record of this case and forward the Order and its Exhibits to the Clerk of the United States Court of Appeals for the Fifth Circuit, to supplement the record therein; and to send copies to all counsel of record, including Mr. Marvin.
MOTION TO RECUSE AND FOR STAY
The motion of O. E. PRICE, a resident and domiciliary of Bossier Parish, Louisiana, respectfully represents:
Mover has been subpoenaed to appear before the Grand Jury presently serving for Bossier Parish, Louisiana, at 1:00 P.M., 13 June 1972.
Mover is informed, believes and therefore alleges that the said Grand Jury is planning an investigation in some way related to or arising out of the trial of Jack G. Favor, which trial was held in Bossier Parish, Louisiana, with Mover as Presiding Judge, in April 1967.
Jack G. Favor was indicted for two murders, was tried, convicted and sentenced to life imprisonment and is currently incarcerated at Angola Penitentiary. The said proceedings were entitled "State of Louisiana vs. Jack G. Favor", bearing numbers 35,522 and 35,523 on the docket of the Twenty-Sixth Judicial District Court, Bossier Parish, Louisiana.
Subsequent to his conviction and sentence Jack G. Favor filed an application for Habeas Corpus in the above identified proceedings. The proceedings were filed by Jack G. Favor in proper person, however, shortly thereafter J. B. Wells, Esq., of Bossier Parish and John T. Campbell, Esq., of Webster Parish, enrolled as counsel for Jack G. Favor. The application was denied by the Honorable Enos C. McClendon, Jr., on 13 October 1971. Writs were applied for to the Louisiana Supreme Court in proceedings entitled "State of Louisiana, ex rel Jack G. Favor v. C. Murray Henderson, Warden, Louisiana State Penitentiary", No. 52,122 on the docket of said court and same were refused on 3 February 1972.
Mover shows that thereafter, on 22 February 1972, Jack G. Favor filed an application for writ of Habeas Corpus in the United States District Court for the Western District of Louisiana in proceedings entitled "Jack G. Favor, P. M. B. 65386 versus C. Murray Henderson, Warden, Louisiana State Penitentiary", bearing No. Civil Action 17,628 on the docket of said Court. This writ was granted and Jack G. Favor was ordered released from custody subject to the right of the State of Louisiana to re-try the defendant within 30 days of 2 June 1972 in the Tenth Judicial District Court, Natchitoches Parish, Louisiana. That matter is presently pending.
Appearing as counsel of record on said federal writ application were James B. Wells and John T. Campbell of the firm of Campbell, Campbell, Marvin and Johnson of Minden, Louisiana.
Mover shows that the Marvin in the firm of Campbell, Campbell, Marvin and Johnson is Charles A. Marvin, District Attorney for the Twenty-Sixth Judicial District, composed of Bossier and Webster Parishes. Charles A. Marvin was elected District Attorney subsequent to the application for writ of Habeas Corpus filed in the State Court as set forth herein and before the filing of the writ of Habeas Corpus now before the Federal Court. Charles A. Marvin is and was a member of the said firm at all times mentioned herein. He is also the son-in-law of John T. Campbell of said firm.
In the identified Federal Court proceeding, the Honorable Ben C. Dawkins, Jr., Chief Judge, concluded that any
Mover shows that Charles A. Marvin, is, by law, the legal advisor for any Grand Jury impaneled within his jurisdiction in Bossier and Webster Parishes.
Mover shows that the specific purpose and primary motive of the applications for writs of Habeas Corpus in both the State and Federal Courts is the release of Jack G. Favor who has been convicted of two murders by a jury in Bossier Parish, Louisiana. Under these circumstances, it is imperative that any session of a Grand Jury directly or indirectly involving the Favor matter be conducted by and with the assistance of a legal advisor who is in no way connected personally or through his law firm, with that litigation.
It was and is the responsibility of the attorneys representing Jack G. Favor on the writ applications to seek to secure the relief sought, i.e., his release from the penitentiary. At such time as he is tried again, as has been ordered by the Federal Court, it will be their responsibility to defend Favor, seeking an acquittal on the murder indictments. The conflict which would exist is apparent and compelling.
Mover further shows that the Order rendered by Honorable Ben C. Dawkins, Jr., on 16 May 1972, noted that there was no filing in response to the application by Jack G. Favor other than a general denial filed by the Attorney General's office. Attorney General William J. Guste, Jr., had just taken office a few days prior thereto. There were no filings of pleadings or briefs or affidavits or evidence of any kind presented to the Federal Court to rebut the naked allegations in the Favor application. No apparent effort was made by the office of the District Attorney to assist the Attorney General in properly representing the interest of the State of Louisiana in opposition to the writ of Habeas Corpus filed by Jack G. Favor.
Mover asserts that Charles A. Marvin is disqualified to act as District Attorney herein by virtue of the provisions of Code of Criminal Procedure Article 680 which provides:
Mover further shows that Article 682 of the Code of Criminal Procedure mandates that upon recusation of the District Attorney the court shall appoint an attorney at law of that district, who has the qualifications of a District Attorney, other than the assistants to the recused District Attorney, to act in the place of the subject District Attorney during the time of the recusal.
Mover shows that an Order should issue herein, staying any further proceedings by the Grand Jury of Bossier Parish, Louisiana, with reference to any matter related to the indictment, trial and conviction of Jack G. Favor, until this motion is finally disposed of, and subject to further orders of the Court, and continuing Mover's subpoena and the subpoena of any other witness called to appear before the Grand Jury on said matter subject to further orders of this court.
Mover further shows that a contradictory hearing should be had herein with Charles A. Marvin, on this Motion to Recuse, at a time and place as fixed by this Court.
WHEREFORE, Mover prays that this Motion be deemed sufficient and allowed, that an Order be issued herein instanter, staying any further proceedings by the Grand Jury of Bossier Parish in any matter relating directly or indirectly to the indictment, trial and conviction of Jack G. Favor pending further orders of the Court finally disposing of the Motion to Recuse District Attorney Charles A. Marvin as legal advisor of the said Grand Jury in such instances, and continuing all subpoenas issued for appearances before said Grand Jury subject to further orders of the Court.
Mover further prays that a rule nisi issue herein to Charles A. Marvin, District Attorney for the Twenty-Sixth Judicial District, ordering him to show cause, if any he has or can, before this Court, at a time and place as fixed by the Court, why he should not be recused as District Attorney and legal advisor to the Grand Jury of Bossier Parish, Louisiana, in any and all proceedings, investigations or hearings it might conduct which relate directly or indirectly to the indictment, trial and conviction of Jack G. Favor, and why the Court should not appoint an ad hoc District Attorney, for that purpose.
BEFORE ME, the undersigned authority, personally came and appeared O. E. PRICE, who being first duly sworn, did depose and state:
That he is Mover in the foregoing Motion to Recuse; that he has read the same and all of the allegations of fact contained therein are true and correct to the best of his information, knowledge and belief.
IT IS HEREBY ORDERED that any and all proceedings, hearings or investigations by the Grand Jury of Bossier Parish, Lousiana, relating directly or indirectly to the indictment, trial and conviction of Jack G. Favor be and the same are stayed, subject to further orders of the Court, and all subpoenas issued for appearances before said Grand Jury are also continued subject to further orders of the Court.
IT IS FURTHER ORDERED that a rule nisi issue herein to Charles A. Marvin, District Attorney for the Twenty-Sixth Judicial District, ordering him to show cause, if any he has or can, before this Court at 9:30 o'clock, A.M., on the 21st day of June 1972, why he should not be recused as District Attorney and legal advisor to the Grand Jury of Bossier Parish, Louisiana, in any and all proceedings, investigations or hearings it may conduct which relate directly or indirectly to the indictment, trial and conviction of Jack G. Favor, and why a District Attorney ad hoc should not be appointed for that purpose.
THUS DONE AND SIGNED in Benton, Bossier Parish, Louisiana, on this 13th day of June 1972.
PREEMPTORY EXCEPTION NO CAUSE OF ACTION
COMES NOW, CHARLES A. MARVIN, District Attorney, who preemptorily excepts to Plaintiff's Motion as follows:
Said Motion sets forth no cause of action against Exceptor in that the allegations do not comprise any of the three grounds upon which a district attorney shall be recused under Article 680, La. C.Cr.P.
Mover, Honorable O. E. Price, alleges only that he was subpoenaed to appear before the said Grand Jury.
Mover is not a "defendant" or "injured party", does not allege that he is, and does not allege he has employed or consulted Exceptor prior to Exceptor's election as District Attorney.
WHEREFORE EXCEPTOR PRAYS that this exception be sustained and the motion dismissed, at Mover's cost.
PREEMPTORY EXCEPTION NO RIGHT OF ACTION
COMES NOW, CHARLES A. MARVIN, District Attorney, who preemptorily excepts to Plaintiff's Motion as follows:
Mover is without right of action for the following reasons:
Mover alleges merely that he was subpoenaed to appear before the Grand Jury.
Mover is not a defendant in any criminal action.
The Grand Jury has not indicted Mover or anyone regarding any matter concerning Mover.
Mover is seeking to recuse a district attorney from acting as a legal advisor to a Grand Jury and from assisting the Grand Jury in an investigation into the possibility of criminal acts or omissions by persons other than one Jack Favor with respect to the release of a convict under sentence, one Floyd Edward Cumbey, on December 12, 1967, after he was sentenced by Mover on December 11, 1967 to a total of 42 years in the state penitentiary.
Mover does not show he is an "injured" person or that he is a defendant.
WHEREFORE EXCEPTOR PRAYS that this exception be sustained and the motion dismissed, at Mover's cost.
I CERTIFY that a copy of the foregoing has been forwarded by United States Mail to Honorable O. E. Price, Judge, Second Circuit Court of Appeal, and to his attorneys, Booth, Lockard, Jack, Pleasant & LeSage.
ANSWER OF RESPONDENT DISTRICT ATTORNEY
CHARLES A. MARVIN, District Attorney, reserving all rights under exceptions hereto filed and without abandoning said exceptions, hereby answers the Motion of Honorable O. E. Price as follows:
Mover neither admits or denies this allegation on the grounds that the names of witnesses subpoenaed by a Grand Jury are legally secret and privileged information.
Mover neither admits or denies this allegation on the grounds that the plans of the Grand Jury are legally secret and privileged information.
These articles are denied as written, as the Court records are the best evidence of what occurred in the case referred to.
This article is denied as written. John T. Campbell has not appeared as counsel of record on the federal writ application as alleged. Mr. Campbell was a co-counsel with Attorney J. B. Wells on the state court habeas corpus application but withdrew before this District Attorney took office on January 1, 1972. He has not since appeared for or been counsel in any state or federal habeas corpus proceeding.
This article is denied as written, it being shown that the record of the case referred to is the best evidence of the Court's "conclusion".
Denied as written.
Denied as written.
Denied as written.
Denied as written.
Denied as written.
Denied as written.
Denied as written.
Wherefore Respondent prays that the Motion for recusation be denied and that the Grand Jury be allowed to proceed with its investigation.
I certify that a copy of the foregoing has been forwarded by United States Mail to Honorable O. E. Price, Judge, Second Circuit Court of Appeal, and to
This 21 day of June, 1972.
In The Twenty-Sixth Judicial District Court in and for the Parish of Bossier State of Louisiana
Evidence adduced on the trial of the above entitled and numbered cause, before His Honor, Enos C. McClendon, Jr., Judge of the Twenty-Sixth Judicial District Court in and for Bossier Parish, Louisiana on the 13th day of June, 1972, at Benton, Louisiana.
MOTION TO RECUSE AND FOR STAY—Page 11
THE COURT: Gentlemen of the Grand Jury, I've asked you to come into open court, for the reason, that I have been informed that you have elected, under the law, to call yourself into session. And in connection with that call, you were to meet at one o'clock. We normally go back into session at one thirty. But because of the fact, I learned, you were to meet at one o'clock, I opened court at one and ask that you attend, for the purposes of hearing what I had to say, and because I had further been advised, that the motion was to be filed. I've been presented with the motion before court, and have examined it. I am advised by attorneys here, that they desire to file this motion in open court, and they may do so at this time, at which time I will give you further instructions.
MR. POLITZ: Your Honor, consistent with that, at this time, we wish to file this motion to recuse and for stay. I stand, prepared to explain the motion at Your Honor's directions.
THE COURT: You desire to make a statement, in connection with the filing at this time. Possibly would save some explanation on the Court's part. You are more familiar with it, I haven't seen it, only ten minutes ago.
MR. POLITZ: Your Honor, the motion is filed on behalf of O. E. Price, who has been subpoenaed to appear before this Grand Jury this afternoon at one P. M. together with a number of other people. We are informed that the purpose of this investigation, by the Grand Jury, in some way relates to the indictment, trial and conviction of Jack G. Favor. Jack Favor was tried before this court in April of 1967, with Judge O. E. Price presiding. He was indicted for two murders and was sentenced to life imprisonment and is now down at Angola. Subsequent to his conviction, Jack Favor applied for a writ of habeas corpus to this court, which was presented to this court, and considered by Your Honor, and in October of 1971, denied. The writ was submitted to the Louisiana Supreme Court in February, 1972. That writ was denied. Subsequent to the denial by the Louisiana Supreme Court, Jack Favor filed an application for writ of habeas corpus, in the United States District Court for the Western District of Louisiana, in which he asked for a release from custody. After the initial decision by the court, and action by the Louisiana Supreme Court thereon, the Federal District
MR. POLITZ: Your Honor, if the stay order is not granted, the Grand Jury is allowed to proceed with deliberations, complying with the assistance of counsel, district attorney, and if the court, at the hearing, which will be had, as Your Honor will direct, the court determines that he should be recused, as we are convinced that he should, in the interest of justice, not necessarily because of improprieties, but the appearances of such, the great care we must take in maintaining our system of justice. If at that time, it would determine, that the district attorney should be and would be recused and the hearings are all ready held, in whole or in part, then the matter would be defeated and an injustice done. And the stay, we submit, must be granted and a hearing had on the rule for recusation, at such time as Your Honor directs, and we stand ready at any time for that hearing.
THE COURT: Any thing further, Mr. Marvin?
MR. MARVIN: No sir. We have stated our position.
THE COURT: The court has read this motion, read it hurriedly, immediately before coming into the court room. It does not propose, at this time, to pass upon the recusation of the district attorney, for the reasons I shall state. I do propose to direct the Grand Jury, that it's hearing today will be stayed, pending the outcome of the rule, to determine whether Mr. Marvin, the district attorney, of this district, of this parish, should be recused. I do this because the law clearly provides, that the district attorney, is your legal advisor. I so charged you, when I empanelled this Grand Jury. I believe I empanelled this Grand Jury. You are certainly within the law, to call yourselves into session and to act as a Grand Jury. The law says that any place, any time, upon the required number of your membership, concurring in that cause. However, your legal advisor must be present with you when you meet, not when you deliberate, but when you examine into any matter, that you may examine into. Now, the question has been raised as to whether Mr. Marvin, as the district attorney, can properly advise with you as your legal advisor. That matter, I do not propose to hear, for this reason. If you heard all that Mr. Politz said, you will remember that he stated to you, and it is a fact, that Mr. Favor applied for a writ of habeas corpus to this court, I being the only Judge, who is not, in any way, been connected with the trial, was called upon to pass upon that application, and did so, to the best of my ability. That ruling was appealed by writ, I believe, to the Supreme Court of this State. They apparently felt that it was correct, because they confirmed it. That having been done, gentlemen, I felt that my connection, such as it has been, the writ of habeas corpus, was completed. I had no further dealings, as far as I knew, with the Favor Case. There were allegations in that petition,
MR. MARVIN: May I make one statement to Your Honor?
THE COURT: Yes sir.
MR. MARVIN: You are not purporting to stay them from acting in cases other than the whole matter alleged here?
THE COURT: Certainly. I was informed, Mr. District Attorney that the only matters, that this Jury convened itself for, was in connection with the Favor Case. If they have other matters, they desire to consider, this court does not prohibit you from meeting for any other purpose.
MR. MARVIN: We will meet, gentlemen, just as soon as this matter is adjourned here.
MR. POLITZ: We would ask that you, that the court make clear, that the language of our stay order, is staying any investigation, hearing or proceeding by the Grand Jury, directly or indirectly arising out of the indictment, trial and conviction of Jack Favor. And that is an encompassing order and we do not want the court to misunderstand, that which we have sought and been granted, and that is, that there's to be no hearing, that in any way relates to the Jack Favor indictment, trial and conviction. And we would ask that the court so note for the Grand Jury. And I don't know about the question of the secrecy of the Grand Jury deliberations and I am quite willing to withdraw from this court room and leave it. Only Your Honor and the Grand Jury and the District Attorney, so that you might determine, what it is, they plan to do this afternoon, if it's as we have been told and as we understand, from the information, which has been in the press, and from the discussions that have generally been made, that it does deal with the Favor matter. But upon that determination being made, that the order be made specific to them, in reference to that, so that they will quite understand it, both they and their counsel and that the witnesses, who have been subpoenaed this afternoon, be discharged from those subpoenaes, subject to further orders of this court.
MR. MARVIN: We have no objection to the witnesses being discharged, Your Honor.
THE COURT: Well, the witnesses are discharged, if that was not made clear.
MR. POLITZ: Nothing for us, Your Honor.
MR. SOCKRIDER: One second, please, Your Honor.
MR. POLITZ: Your Honor, we want it made clear, that we consider the release of Mr. Cumbey, which has been at issue in the newspapers and in the Jack Favor writ proceedings, we consider to be included within this order, as connected with the conviction, trial, etc. of Jack Favor.
THE COURT: And let there be no misunderstanding, gentlemen, the release of a witness, Floyd Cumbey, I believe his first name is, is also encompassed in the Court's stay order. Any matter relating to that, as being a part of the Favor hearing.
MR. POLITZ: Your Honor, if it's—.
THE COURT: Madam Clerk, would you receive this filing?
MR. POLITZ: As we appreciate the provisions of the code, Your Honor, the Court has the power and the responsibility of giving instructions and supplemental charges to the Grand Jury. We have taken your charge, here, in open court as being sufficient for present purposes, but should your Honor feel that you would want copies of the motion and stay order served on the foreman, or any other member of the Grand Jury, we have copies available.
THE COURT: I see no purpose in serving the members of the Grand Jury. I have instructed them individually and collectively.
MR. SOCKRIDER: Your Honor, we would like the record to show that we hand—, handed Mr. Marvin a copy of it, as we approached the bench.
THE COURT: Very well. Gentlemen, thank you for coming into open court.
I, MARJORIE M. KEITH, hereby certify that the above and foregoing typewritten pages constitute a true and correct transcript of my audograph recording of the Motion to Recuse and for Stay that was taken on the trial of the above entitled and numbered cause at the time and place set forth on page one hereof.
In The Twenty-Sixth Judicial District Court in and for the Parish of Bossier State of Louisiana
Evidence adduced on the trial of the above entitled and numbered cause, before His Honor, Frank M. Dougherty, Judge of the Second Judicial District Court in and for the Parish of Claiborne, Louisiana, on the 21st day of June, 1972, at Benton, Louisiana.
P-1 Page 15 P-2 Page 15 P-3 Page 15 P-4 Page 15 P-5 Page 15 S-1 Page 16
THE COURT: Mr. Politz:
MR. POLITZ: Your Honor, this matter is before the Court on a rule to recuse the District Attorney for the Twenty-Sixth Judicial District, Mr. Charles Marvin, in the event there is to be any hearing by the Bossier Parish Grand Jury, in a certain limited restricted steered, that is examination into matters arising out of the indictment, trial and conviction of Jack G. Favor. And that matter is now before the Court this morning. We have just been handed two exceptions, by Mr. Marvin, which I am sure, he wishes to speak to you.
MR. MARVIN: Yes sir. They are on Your Honor's desk. One is the exception, peremptory exception of no cause of action, the other is the peremptory exception of no right of action. And I think it is proper at this time to see to those exceptions.
THE COURT: You may address yourself to them, Mr. Marvin.
MR. MARVIN: If Your Honor will refer to the application for writs. We furnished you a copy of this item, together with the brief, which has been filed in the Supreme Court in support of that application, together with the motions to recuse, that were filed here last Tuesday. I don't know that Your Honor has a copy of the transcript, that was filed here last Tuesday. Does Your Honor have a copy of that?
THE COURT: No. I believe, I don't have a copy of that. And I don't believe that I desire a copy of that. I don't have time, Mr. Marvin, to read the transcript of the past proceedings.
MR. MARVIN: By way of—
THE COURT: Other sections of the court is waiting for this court room and we want to proceed to dispose of this matter as directly as we can.
MR. MARVIN: I want to make one correction to Mr. Politz's statement about this matter being limited to the Favor matter. In the matter here Tuesday, the transcript reads, after the Judge had issued the stay order, that we want it made clear, this is Mr. Politz, we consider the release of Mr. Cumbey, which has been at issue in the newspapers and in the Jack Favor writ proceedings, we consider to be included within this order, as connected with the conviction, trial, etc. of Jack Favor. And then the order reads, or the Court's statement reads: Let there be no misunderstanding, gentlemen, the release of the witness, Floyd Cumbey, I believe his first name is, is also encompassed in the Court's stay order, any matter relating to that as being a part of the Cumbey hearing. And if Your Honor will read the chronology, that is furnished in our writ application, I think it will be perfectly clear to the Court, that the Grand Jury, obviously is interested in looking into the release of the man, Cumbey. To the motion to recuse, this District Attorney, we have filed the exceptions of no cause and no right of action. They are both based on the proposition, that if the allegations of the petitioner taken, is true, that my senior law partner, between the middle of July of 1971, and sometime before January 1, 1972, was a co-counsel Favor's application for a habeas corpus, that is not grounds to recuse me, with respect to a Grand Jury investigation, that has to do with release of the man named Floyd Cumbey. And if Your Honor will refer again, to the application and the brief submitted in support of that, and particularly, Article 7 of that application to the Supreme Court, and we will make that application a part of this record, with Your Honor's permission. We will note that the distinguishing factor is there. There is no allegation by Judge Price, who is the mover in these proceedings, that he is
MR. POLITZ: A brief response, Your Honor. For the purposes of these exceptions, the allegations of the petition are taken as true, as they are, indeed true. In response to counsel's exceptions that Judge Price has no right and Judge Price has no cause, to seek the relief that is before the Court. We submit that, that is error. He indeed, has both right and cause and great responsibility. And we want to address ourselves to that. We don't know what the Grand Jury was called together to do, because the Grand Jury must act in secrecy, and that is right and that is the law. We speculate what the Grand Jury was called together to do from the press. The press reports, front page of the Shreveport Times, last Monday, that the Grand Jury had called itself into session. And very appropriately Mr. Marvin refused to even comment, when asked by the reporter, is the Grand Jury being called and he wouldn't acknowledge whether they were being called or not being called at all. And that is proper. But it is in the press, that they were being—they had called themselves together. Next morning, before the Grand Jury met, it is in the press again, in the Shreveport Times, about the Grand Jury, it's incorporated in another story about the Grand Jury was meeting that afternoon and it names a number of people, all of whom incidentally, were subpoenaed to appear that afternoon and were here in court last Tuesday. There is concern, that the secrecy of this Grand Jury is being abrogated. This is coming from some place. There is concern that Mr. Marvin's law firm, acting through his senior partner, his father-in-law, Mr. John T. Campbell, for whom I have the greatest respect, appropriately and properly represented Favor in the State Court proceeding, seeking a writ of habeas corpus, before Mr. Marvin was elected District Attorney, is quite true. But we also allege, and we also have a copy of the opinion of Judge Dawkins, his order, rendered on June 2, a supplemental order, and it has on the cover sheet, that of counsel for Favor is the law firm of Campbell, Campbell, Marvin and Johnson. We are concerned about that. Mr. Marvin does not suggest an answer to that allegation which is in our petition, that his law partner, after he was elected District Attorney, was attorney in the Federal Court proceedings. Is that so or not so. We are concerned that there has been some suggestion that this Grand Jury may be seeking advise of private counsel, which is, of course, against the law. We suggest to the Court, that the right and the cause of action of Judge O. E. Price, to bring this matter before the Court, is very simply stated. The sole and only purpose and motive of Judge Price, in filing this motion to recuse, is to secure a prompt and thorough and fair and complete examination into this matter, if indeed, that is what the Grand Jury is going to do. And again, we speculate, but if this Grand Jury wishes to look into this matter, that it is Judge Price's position that it be done promptly, and that it be done thoroughly and that it be done fairly and that it be done exhaustively. We feel, that in order for that to be done, the legal advisor for that Grand Jury, the person who advises and consults with them, tells them about the law, assists them with the evidence, should be some one, who has been in no way connected with the Favor trial, not in the trial itself, not in any post conviction remedies, the writs of habeas corpus, not personally, not through his law firm. We submit that the ends of justice dictate that kind of investigation into this matter. And in order for the public to have confidence in the results, that is the kind of investigation that must be conducted. Now, we suggest to the Court, this in terms of Judge Price's right and cause of action to bring this motion to recuse. This matter has been going on for years. There have been comments in the press for years, about this. It has bubbled up and gone down, bubbled up and gone down. Judge Price was the presiding Judge. It was inappropriate for him, at any time, to comment about any of
MR. MARVIN: May I reply, Your Honor.
THE COURT: Yes sir.
MR. MARVIN: Under the exception of no right of action, I believe we have the right to present evidence on that, and we will show to Your Honor's satisfaction, that Mr. John T. Campbell has not been a co-counsel on any habeas corpus matter in the Favor thing, in the State Court or Federal Court since January 1, 1972. The only person enrolled as the attorney in the Federal Court, according to the records of the Clerk of the Federal Court, and I have just sent for a certified copy of those records, is Mr. J. B. Wells, and I will later ask that Mr. Campbell be put on the stand, to testify as to his representation.
MR. POLITZ: Your Honor, that is totally unnecessary. If Mr. Marvin is saying to the Court, that his law firm is not counsel of record in the Federal application, has not been and will not be, we accept that, Mr. Marvin. It is not necessary for evidence.
MR. MARVIN: I ask leave to submit the certificate of the Federal Clerk any way, for the sake of the record, if this thing does go up stairs. If Your Honor listened to Mr. Politz's argument, in every instance that he talked about, he talked about a defendant, Judge. He talked about a defendant. A defendant, is a person, who is charged with a crime, insofar as the criminal law is concerned. We do not have a defendant in this particular case. No crime has been charged any one, with the release of the man, Cumbey. If Your Honor will go through this mass of written material, and I regret the length of that, you will see that obviously, what the Grand Jury wants to inquire in, is why. When a man was sentenced to forty two years in the state pen on December 11, 1967, why was that man released on December the 12th, 1967, the very next day. And when it became obvious,
THE COURT: Gentlemen, I am not over here to try the Cumbey case, nor the Favor case. I am over here this morning from Claiborne Parish to— Have your seat, Mr. Marvin.
MR. MARVIN: Yes sir.
THE COURT: These are not matters in rebuttal any way, to what was stated over there. I want you gentlemen to come to chambers and I will have some thing to say to you there.
MR. MARVIN: May I put two other things on the record, before we go in there, Judge.
THE COURT: What is that, Mr. Marvin?
MR. MARVIN: It has to do with rebuttal as to what he was saying, about the DeArmis case and the other—
THE COURT: The DeArmis case has been in the jurisprudence for twenty five years. The judges all know, myself knows what it holds and so do the people on the appellant courts. You may refer to it, stipulate that that would be the basis of your legal argument. We have used enough time. This matter needs to be expedited and I am not going to get lost in a maze of arguments, gentlemen. I came over here to address myself to the recusation of the District Attorney and I shall largely confine my consideration to that point. Gentlemen, come to chambers, if you will, please.
THE COURT: Do you gentlemen have any further filings, or documental filings, or stipulations, which to make, before I pass on this matter.
MR. POLITZ: Do you have the answer of defendant, Your Honor?
MR. MARVIN: Yes. I have filed it with the Clerk. I believe Your Honor has the exception.
THE COURT: Yes sir.
MR. MARVIN: On your desk, plus the application for writs. We'd like to file all of those things.
MR. POLITZ: We are prepared to make a number of filings, Your Honor, in globos.
THE COURT: Proceed to make them.
MR. POLITZ: We'd ask to introduce— be allowed to introduce in evidence as P-1, the newspaper article of June 12, 1972 of the Shreveport Times. As P-2 the newspaper article of June 13, 1972 of the Shreveport Times. As P-3, the subpoenae issued to Judge Price. As P-4, the written reasons for ruling in State Court by Judge McClendon on the application for writ, dated 13, October, 1971. As P-5 the supplemental order by Judge Dawkins and the Federal Court application for writs, dated 2, June, 1972, and we would ask to introduce the Favor record. I understand that to be numbered 35,522 and 35,523 of this court. We wish to introduce in evidence our pleadings on this motion, to which is attached an affidavit and incorporate the factual statements made by Mr. Marvin and the arguments on the exception as they relate to the involvement of his law firm in the writ application.
MR. MARVIN: And we would make a filing, if Your Honor please, of the docket sheet in the Federal Court case, showing that the attorney for the plaintiff is Mr. James B. Wells and not Mr. Campbell and we would ask that the records show that the stipulation between these counsels here, that if Mr. John T. Campbell
MR. POLITZ: So stipulated, Your Honor.
THE COURT: Let the offerings be received in evidence.
MR. MARVIN: State Exhibit 1, I guess.
THE COURT: In line with the reasons orally assigned in chambers, to counsel, I overrule the exceptions of no right and no cause of action that have been filed in this matter. I address myself directly to the motion to recuse the District Attorney in this matter. I would like initially to say, that the Courts sit to do justice. I came over here from Claiborne Parish, to hear this on a— when the elected Judge of this division felt that he had cause to recuse himself. I am aware of, over the years, particularly recently, the background of the controversy. I note that the things, that seem to be concerned with, are some five or six years old, 1967, I believe. It's now half way through 1972. My concern, since I have been a practicing attorney and all the time on, my years, and they are considerable, on the 2nd circuit —the 2nd District Court, has been toward maintaining respect and public confidence in the institution, over which I preside. I think, generally, most lawyers feel that way, too, that that's the duty of a judge and it's a duty of all of us. I have res—conducted all of my proceedings and every utterance that I have ever made in public life, so that the public would have confidence in it's courts. These are matters that might touch, in some way, by rumor, insinuation and the rumor mongers are busy. Election time, secret Grand Jury's seeking to investigate things that have happened, and I know not what of, perhaps. The Code of Criminal Procedure, Article 680, in setting out grounds for the recusation of the District Attorney, and I might say here, that the courts not only need fair and impartial judges and those judges must not only be fair and impartial, but the public must have confidence, that they are fair and impartial. Also, the same goes for the office of District Attorney, while their duties differ. A District Attorney represents the people and he is some times, has it in his power, by the nature of his duties, to influence juries, grand juries to a great extent, where people, innocent people might be harmed. I don't think that's this case, I have known Mr. Marvin, in his youth. He is making a creditable record for himself and I commend him. At the same time, this particular case involves the firm of which he is a member and does civil practice in. It has in the past, it may not be so now, I, since this morning, I believe, probably Mr. John T. Campbell is no longer concerned with the Favor appeal or the Favor writs, or whatever is going' to happen in court to Mr. Favor, but his past connection is here. It's part of every thing that's gone recently and it is going to effect what happens in the future. I must know also, that Mr. Marvin, a member of his family is now in politics against whose race might be concerned some what with one, or some of the people, who were subpoenaed as witness before this proposed Grand Jury hearing. All of those, in my opinion, my considerate opinion, will effect the public reaction, public confidence in the work of this court. And as a result of that, I've come inescapably to the conclusion that the court should order the—that Mr. Marvin be recused as District Attorney in these proceedings. Under the law of Louisiana, when a District Attorney is recused, the Judge may go out into the district and choose an attorney, possessing those qualifications and recommend him to the—to the Attorney General of the State to be appointed to represent the people in the investigation. Now we have many able, and astute lawyers in the Twenty-Sixth Judicial District. I practiced law nearby here. I sat here for a year once. I know them. I admire
MR. MARVIN: If you people please, before we adjourn, I want to state for the record, that I appreciate your last remarks, but at this time we do want to give the Court and opposing counsel notice, that we will apply to the Louisiana State Supreme Court for writs, with respect to Your Honor's order, today, with all due respect to you.
THE COURT: Thank you, sir. That is noted in the record.
MR. MARVIN: Could we have a time set, Judge. I think it's customary and we will prepare an order—
THE COURT: I am going to recess this, not adjourn this proceedings. I
MR. MARVIN: With respect to the application for writs though, I believe Your Honor has to set a dead line, by which we must file those writs.
THE COURT: Well, I wasn't addressing myself to that. This is Monday, this is Wednesday—
MR. MARVIN: We have one application presently pending and this probably will be in the nature of a supplemental writ and it will not require that much time. I think perhaps five o'clock next Tuesday, at the latest.
THE COURT: I am going to give you until five o'clock Friday.
MR. MARVIN: Of this Friday—
THE COURT: Yes sir.
MR. MARVIN: or next Friday.
THE COURT: We must be heard. I don't want to limit you, but vacation is upon us. We must give these things— the public is entitled to have them heard.
MR. MARVIN: That's all right. Very fine. That's good.
THE COURT: We will be in recess until later in the afternoon.
I, MARJORIE M. KEITH, hereby certify that the above and foregoing typewritten pages constitute a true and correct transcript of my audograph recording of the evidence that was taken on the trial of the above entitled and numbered cause at the time and place set forth on page one hereof.
Considering the motion filed herein on June 13, 1972, the law and the evidence and arguments of counsel:
IT is ordered, that the exceptions filed herein by the District Attorney be overruled.
It is further ordered that Charles A. Marvin, District Attorney be and he is hereby recused in these proceedings or in any proceedings arising out of the trial, conviction or sentencing of one Jack Favor and the release of Floyd Edward Cumbey.
It is further ordered that pursuant to Article 682 of the Code of Criminal Procedure the District Attorney having been recused, that the Court hereby certifies to the Attorney General of Louisiana that the Court is unable to make the appointment of a District Attorney Ad Hoc and requests that the Attorney General appoint a District Attorney of another district to act in place of the recused District Attorney.
Judgment signed at Benton, Louisiana, this 21st day of June, 1972.
NOTICE OF INTENTION TO APPLY FOR SUPPLEMENTAL WRITS OF CERTIORARI, PROHIBITION AND MANDAMUS
Please take notice that the undersigned intends to apply to the Honorable Supreme Court of Louisiana, for writs as above provided respecting the order of the Court of June 21, 1972, overruling exceptions of no cause of action and no right of action, and recusing the District Attorney, Relator, Charles A. Marvin.
Considering the foregoing notice:
CHARLES A. MARVIN, District Attorney, is allowed to make application for writs to the Honorable Supreme Court of Louisiana returnable before five o"clock p. m. on June 23, 1972.
Officially signed June
OFFICE OF THE CLERK
SUPREME COURT OF LOUISIANA
NEW ORLEANS, 70112
June 23, 1972
Dear Judge McClendon:
Attached is a certified copy of an Order issued by this Court today in the above entitled matter, which is self-explanatory.
With kindest regards, I am,
SUPREME COURT OF LOUISIANA
NEW ORLEANS, 70112
Writ granted (See order, (Attached).
SUMMERS, J., dissents. See order.
BARHAM, J., dissents and will assign reasons.
Under that Clause, the federal courts' interpretations thereof are controlling vis à vis State Court decisions, especially where federal constitutional rights of individuals prosecuted in State Courts are involved. The following cases illustrate that a United States Court's analysis of the Constitution binds the State judiciaries and overrides their notions of federal constitutional law: North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), (due process denied by State by more drastic sentence on second trial); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Fifth Amendment guarantee against double jeopardy, applicable to States, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; embodies collateral estoppel); Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971) (State must afford indigent non-felony defendant a trial record of sufficient completeness to effect an appeal).