WISDOM, Circuit Judge:
This case is before us for the second time on an appeal from a denial of the writ of habeas corpus. See MacKenna v. Ellis, 5 Cir., 1959, 263 F.2d 35.
Edward MacKenna was sentenced to eight years' imprisonment for the theft of a camera valued at $250. Since March 12, 1956, he has been confined in the Dallas County Jail and in the Texas Penitentiary.
MacKenna is an educated man, a graduate of Northwestern University in 1934. He has worked as a reporter for a number of newspapers and has been a feature writer for several periodicals. But Edward MacKenna has seven convictions for crimes. He attributes his commission of these crimes to his having been an alcoholic. Since 1953 he has been a member of Alcoholics Anonymous.
Consistently, vigorously, and for the most part on his own, MacKenna has asserted that he did not steal the camera. His story is that at the Dallas State Fair in October 1955 he came into possession of the camera inadvertently.
This, of course, may be just another likely story. Then again, MacKenna may be a victim of circumstances. Likely or unlikely, it is basic to due process that an accused person have a fair opportunity to tell his story in a fair trial. He is entitled to such notice of trial that he will be able to present his witnesses in court on the day of the trial. He is entitled to the effective, wholehearted assistance of counsel and to the undivided loyalty of counsel. Finally, he is entitled to have his trial guided by a judge sensitive to the duty of protecting the accused's constitutional rights in all cases, but especially in a case when fledgeling lawyers are appointed counsel over the protest of the accused.
MacKenna was committed to the Dallas County Jail on March 12, 1956. Three times in the next six months, in April, May, and July, his name appeared on the official court docket for appearance to answer the indictment. Without apparent reason and without any explanation he was not taken into court on any of these occasions.
Friday, September 28, 1956, after six months and seventeen days in the county jail, MacKenna, for the first time, was taken to court. The district judge asked if he had counsel. MacKenna replied that he was negotiating with a Mr. Ben Henderson to represent him; at the hearing below he testified that he had managed to get together $150 for a retainer, and that Mr. Henderson had agreed to go by the jail and see him in late September. The trial judge stated that he did not see Mr. Henderson in court and that he was then and there appointing counsel to represent the defendant.
An important issue in the case is whether MacKenna objected to the appointment of counsel. His appointed counsel, who were present in court, state that he did not object; at least, not in their presence. Exception I of the formal bills of exception filed in the state court appellate proceedings states, in part:
The bills of exception were submitted to counsel for the state and certified as correct by the trial court.
MacKenna's trial was set for Wednesday, October 3, 1956. A week-end therefore intervened between his appearance on Friday, September 28, and the day of his trial. About 10:30 Tuesday morning, October 2, 1956, he was brought into court. He was told that his case had been advanced a day on the docket and that his trial was about to begin. That was his notice of trial. Within fifteen minutes to half an hour the trial began. No witnesses were put on the stand however until 2:00 P. M.
MacKenna protested against being put to trial in advance of the date set for trial, because of inability to reach his witnesses. He asked his attorneys to
The record does not show that the attorneys formally applied for a continuance and in the hearing below they testified that no motion for a continuance was presented. However, Exception II filed in the state court proceedings reads:
It is clear that the application for a continuance failed to comply with the procedural requirements established in Article 543 of the Texas Code of Criminal Procedure.
MacKenna was the only witness to testify for the defense. He was found guilty and sentenced to eight years imprisonment. His attorneys bowed out, although they did offer to appeal, and MacKenna himself prepared a motion for a new trial, alleging that he had new evidence. MacKenna attached to his motion
Acting for himself, MacKenna perfected an appeal to the Court of Criminal Appeals of Texas. That court affirmed the judgment of the trial court, April 3, 1957. MacKenna v. State, 1957, 164 Tex.Cr.R. 623, 301 S.W.2d 657. The opinion of the court did not deal with Exception I. The court held, as to Exception II: "While Bill of Exception No. II certifies that on the day the case proceeded to trial appellant `protested he had not had time to contact the witnesses who wished to appear in his defense and asked for a continuance', the bill is insufficient as the application for continuance is not shown therein." MacKenna v. State, 1957, 164 Tex.Cr.R. 623, 301 S.W.2d 657, 658. The result was inevitable under Texas law. Pena v. State, Tex.Cr.App., 1 S.W.2d 1095; Williams v. State, 115 Tex.Cr.R. 574, 27 S.W.2d 217 and Chavez v. State, 147 Tex. Cr.R. 423, 181 S.W.2d 85.
MacKenna then filed an application for a writ of habeas corpus in the trial court. On its denial, he filed a petition for a writ of certiorari with the United States Supreme Court. This too was denied, August 14, 1957, MacKenna v. State of Tex., 355 U.S. 871, 78 S.Ct. 70, 2 L.Ed.2d 55, rehearing denied 355 U.S. 886, 78 S.Ct. 152, 2 L.Ed.2d 116.
On October 31, 1957, the Texas Court of Criminal Appeals denied MacKenna's petition for writ of habeas corpus. The same court also denied a rehearing. Appellant next filed for writ of habeas corpus in the United States District Court for the Southern District of Texas, Houston Division. In a memorandum and order rendered January 28, 1958, the district judge refused to grant the writ of habeas corpus, or to enter an order to show cause, or to issue a certificate of probable cause. MacKenna then perfected his appeal to this Court. January 16, 1959, we remanded the case to the district court. The United States Supreme Court denied the appellee's petition for a writ of certiorari. Ellis v. MacKenna, 1959, 360 U.S. 935, 79 S.Ct. 1453, 3 L.Ed.2d 1546.
In our earlier MacKenna decision we held that the appellant was entitled to a hearing on the truth or falsity of his allegations (1) that he was forced, over his objections, to accept representation of counsel appointed by the court and (2) that he was given no reasonable opportunity to secure the presence and testimony of his witnesses.
August 6, 1959, the district court held a hearing on this case and denied MacKenna's application for a writ of habeas corpus. The case is now before us on appeal from that determination.
On the question of the appointment of counsel for MacKenna, the trial judge held that the two lawyers "were not appointed over his objection". He found:
This finding is clearly erroneous in failing to give effect to the conclusiveness of a bill of exception in its recital of facts. Bill of Exception I sets out unequivocally that the trial judge appointed counsel "over protest" of MacKenna and that "then and there, in open court, the defendant took exception to the action".
A bill of exceptions is defined as follows: "A Bill of Exception is a written objection to the ruling of a court on a point of law, properly certified by the judge who made the ruling. It shows what occurred in the trial court, and perpetuates in the record the ruling of the court to which objection is made. It incorporates into the record matters that would otherwise not be part thereof, and presents to the appellate court a true recitation of the matters presented to the trial court and the rulings of that court." 4 Tex.Jur.2d 23, App. and Error — Civil, Section 489. (The Rules of Civil Procedure are applicable to bills of exception in criminal cases in Texas). When a bill of exception is presented to a trial judge, he is required to approve it if it is correct. If he feels that it is not correct, he may make suggested corrections with the approval of the parties. If the parties fail to agree, the trial judge must draw another bill, and if the party who presented the original bill is still not satisfied, he may have his bill verified by bystanders. But the trial judge must certify the bill of exception if it states the facts as they actually occurred during the trial. See 5 Tex.Jur. 2d, App. and Error — Criminal, Sections 175-178.
Numerous Texas decisions hold that a certificate of approval by the trial judge of a bill of exception conclusively establishes that the facts as recited in the bill actually occurred. Courts are not at liberty to look beyond the bill to determine the correctness of the recitals. Howard v. State, 77 Tex.Cr.R. 185, 178 S.W. 506; 5 Tex.Jur.2d 518, App. and Error — Section 319. The rationale for the rule is stated in Banks v. State, 1923, 95 Tex.Cr.R. 384, 254 S.W. 962, 963:
See Ticer v. State, Tex.Cr.App.1958, 313 S.W.2d 301 (established fact that motion for mistrial was made);
It is significant that the certification of the Criminal District Court, attached to the bills of exception, states that MacKenna's bills of exception were "examined by [the Court] and having been submitted to counsel for the state, the same are found to be correct and are hereby allowed, signed and ordered filed as part of the record".
Since under Texas law there can be no question as to MacKenna's in fact having protested the appointment of counsel, the first question boils down to whether, in the unusual circumstances of this case, the trial judge offended due process in appointing counsel, over the protest of the accused.
We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. We consider undivided loyalty of appointed counsel to client as essential to due process.
We do not doubt the propriety of a trial judge's appointing an attorney for the defense over the protest of the accused when the accused lacks the intelligence or the education to handle his own defense. Here, however, as we said in the earlier opinion:
The record of the hearing below reinforces the view expressed in the earlier opinion. One of the appointed lawyers had received his license to practice law just three weeks before he was appointed counsel for the accused. The other appointed lawyer had been practicing five months. They had had one case. In that case their client pleaded guilty to a narcotics charge.
At the very time of their appointment as MacKenna's counsel each of the young lawyers had on file with the Dallas County District Attorney's Office a request for employment. Several months later both
In view of their relationship with the District Attorney, it is not surprising that they were willing to accommodate him by agreeing to the short notice of trial and to the advance in the trial date without notice. In the hearing below, the attorneys were questioned as to whether they recalled the reason for the case's being moved up to October 2. One answered: "Not definitely, no. It was just — the State's Attorneys, Mr. Montgomery and Judge McCormack wanted the case tried on that date." The other answered: "As best I recall they had another case they wanted to try and we didn't see any reason in having it postponed since we hadn't planned on producing any character witnesses and there were no fact witnesses available to us."
The young men appointed as counsel were licensed lawyers and graduates of good law schools. No doubt, today, they are excellent lawyers. Their lack of vigor in conducting MacKenna's defense and their mistakes did not show up, of course, until after their appointment. But a trial judge who appoints fledgeling attorneys as defense counsel, over the defendant's protest, cannot wash his hands of their mistakes.
Here, in the first place, the appointed counsel made no objection to the short notice of trial. Then they made no objection to the trial's being pushed up from Wednesday to Tuesday. They admitted asking for a continuance in a private conference with the trial judge, but did not file a formal motion for a continuance. The bill of exception shows that MacKenna himself, with his lawyers present in court, asked for a continuance. The bill also shows that his layman's request for a continuance plainly does not comply with the requirements of the Texas Code of Criminal Procedure. The bill was defective in failing to set forth the reasons assigned and the application
As we see it, an essential element of the fair trial of a defendant with court-appointed counsel is trial court sensitivity to protecting the defendant against hasty trials and against obvious mistakes of young, inexperienced, appointed counsel. A genuflection in the direction of justice by the pro forma appointment of counsel such as MacKenna had is something less than adequate judicial guidance and the furnishing of effective counsel to an accused. In Johnson v. United States, 1940, 71 App.D.C. 400, 110 F.2d 562, 563, the court said:
In Powell v. Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 60, 77 L.Ed. 158, Mr. Justice Sutherland said:
In the hearing below the district court held that MacKenna was given a reasonable opportunity to secure the presence and testimony of witnesses. In reaching this result the district court relied on the testimony of MacKenna's counsel: "Each testified that there was no motion for continuance; MacKenna did not discuss with them, did not reveal to them the names of any alibi witness * * * only the name of Dr. Anderson and some members of Alcoholics Anonymous". Again this finding is clearly erroneous in failing to give effect to the recital of fact in the bills of exception submitted to counsel for the state and certified as correct by the Criminal District Court.
According to MacKenna, he gave his attorneys the names and addresses of his witnesses on Friday, September 28. According to his attorneys, he had no fact witnesses, only character witnesses, and because of MacKenna's criminal record it was their considered opinion, with which MacKenna agreed, that he should not take the stand and not put his character at issue; his decision to take the stand brought about his conviction and long sentence. One of the attorneys admitted, however, "I wouldn't swear they weren't given to us, no." The depositions and affidavits show that telephone calls to fact witnesses on the day of the trial support MacKenna's statement that he had alibi witnesses who could not be reached in time to testify. Some of these calls, according to the depositions, came in the morning — before MacKenna took the stand.
The deposition of Mrs. June Chapman, Bookkeeper for Newman-Miller Printing Company, where MacKenna was employed, states that someone — presumably MacKenna or one of his attorneys — did try to reach her by telephone shortly before noon on the day of the trial. She was a fact witness. She kept time-cards on the company's employees. According to her deposition she would have testified that MacKenna was at work until 4:30 P.M. the day of the theft of the camera and that his wife came by the plant, as was her invariable custom, to pick him up after work. A photostatic copy of MacKenna's time-card for October 18, 1955 is in the record. Mrs. Chapman swore, as did MacKenna's wife, that if she had been given reasonable notice she would have testified in his defense.
MacKenna is now divorced. His ex-wife's deposition states that she received a telephone call on the day of MacKenna's trial, urging her to go at once to the Dallas County Courthouse. She stated that the call came in at 1:30 P.M., but that "she was cooking lunch and could not eat, bathe, dress, and get down to court by 2:00 P.M., which was the time the defense counsel said it was necessary for me to be there". She too was a fact witness. She would have testified that her husband did not go to the State Fair Grounds on October 18, 1955, the day the camera was stolen.
Ward Chandler, Editor and Publisher of Chandler Publications, is an official of the company for which MacKenna worked. His deposition states that he was telephoned the morning of the trial by someone he thought was one of MacKenna's defense counsel but whose name he does not remember. He was asked to testify but, because of press of business, could not do so. Mrs. Chandler worked with her husband. Her deposition states that a telephone call came in from someone representing himself to be MacKenna's defense counsel. Mrs. Chandler deposed: "My husband took the call, and when he got through, he said: `That's a fine way, to call someone the morning of the trial and you can't even get there'".
MacKenna contends that before trial the total discussion of the case between himself and his appointed counsel amounted to only fifteen minutes. His counsel say that they spent thirty to forty-five minutes with him. They concluded that MacKenna's witnesses were all character witnesses. If so, the presence of character witnesses was essential to the defense — once MacKenna took the stand. In fact, one of the attorneys testified that he attempted to call Dr. Anderson "to attempt to reconstruct [MacKenna's] character". Had there been reasonable notice of trial or a continuance, character witnesses could have testified. But whether the witnesses were fact witnesses or character witnesses, to force an
In Paoni v. United States, 3 Cir., 1922, 281 F. 801, 803, two defendants and others were convicted for narcotics violations. On June 16, notice was mailed to the defendants' counsel that their case was set for June 22 — more notice than MacKenna received. The defendants appeared in court the morning of the trial, but their attorneys did not make an appearance in court until that afternoon. They moved for a continuance on the ground that they had not received notification of the trial date and therefore had no time to procure defense witnesses. The motion was overruled. On appeal, the court observed that it was "gravely impressed" with the contention that the time to get witnesses was inadequate because of the swiftness with which the case was begun when counsel appeared. The court, holding that the trial court abused its discretion in denying a continuance, said:
Although Paoni involved the Sixth Amendment and the case was on review by a writ of error, the principle that controlled in Paoni applies with equal force in a habeas corpus proceeding involving the due process clause of the Fourteenth Amendment: the opportunity of an accused to meet the prosecution's case with the aid of witnesses is historically and in practice fundamental to a fair trial. Powell v. Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.
Paoni and the instant case are distinguishable from Mitchell v. United States, 1958, 104 U.S.App.D.C. 357, 259 F.2d 787, in which a majority of the court held that the petitioner was not entitled to a hearing under 28 U.S.C.A. § 2255 on the representation that court-appointed counsel was incompetent. In that case Judge Prettyman, for the majority, emphasized that the decision was not one involving "dual interest, insufficient time for preparation, or inadequate notice". 259 F.2d 789. Avery v. Alabama, 1941, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 is distinguishable, because of the attorney's zeal in conducting the defense, the opportunity provided by "Court Week" for the attorneys to investigate, and other "facts and circumstances" peculiar to that case.
Article 543 of the Texas Code of Criminal Procedure sets forth very clearly the requirements for a continuance. We do not question the propriety, the reasonableness, the constitutionality of Article 543. We do not reach that question. "Such detailed and technical requirements of a motion for continuance, no doubt, serve a salutary purpose in a proper case, but they cannot justify putting a defendant to trial when he has been given no fair opportunity to secure the attendance of his witnesses." MacKenna v. Ellis, 5 Cir., 1959, 263 F.2d 35, 42.
The Texas Court of Criminal Appeals did not reach the merits of the question whether a continuance should or should not have been denied. And the denial of the continuance has bearing here only in a "but for" sense: but for the refusal of the continuance, MacKenna might have had a fair trial. The question is whether MacKenna had any trial. There is no trial without due process.
Disregarding what might have happened, and considering only what actually did happen, we find a combination of circumstances that unfairly prevented the accused from meeting the prosecution's case. The combination of circumstances we refer to are these: (1) the short notice of the trial set for October
This Court is well aware of the abuse of federal habeas corpus by state prisoners.
For the theft of a camera valued at $250, MacKenna has served a substantial part of his eight-year sentence, having been confined for more than four years. The Court's duty upon a habeas corpus hearing is to "dispose of the matter as law and justice require." 28 U.S.C.A. § 2243; compare 28 U.S.C.A. § 2106. It is our opinion that MacKenna's discharge will best serve the ends of justice. Aderhold v. O'Neill, 5 Cir., 1933, 66 F.2d 85; Reid v. Sanford, D.C.N.D.Ga.1941, 42 F.Supp. 300, 303-04; 39 C.J.S. Habeas Corpus § 102, p. 690, n. 92. The judgment is therefore reversed and the cause remanded with directions to grant the
Reversed and remanded with directions.
CAMERON, Circuit Judge (dissenting).
In seeking to formulate a dissent to the exhaustive opinion filed by the majority, I think it appropriate to quote from a Supreme Court opinion an epitome of the spirit in which a federal judge should approach the consideration of a case which may result in setting aside a State court decision in a criminal case:
And in Darr v. Burford, 1950, 339 U.S. 200, 218, 70 S.Ct. 587, 597, 94 L.Ed. 761, this general test was laid down:
The majority here looses the long insensate arm of the federal government and empowers it to filch from the hands of the official of a sovereign State the key to the jail house and to set free one who was duly and legally convicted of violating the laws, not of the nation, but of the State of Texas. This extreme action, as I see it, is not justified by the facts before the Court, or by any authority cited. Two cases by federal courts are relied upon by the majority. The first in Aderhold, Warden v. O'Neill, 1933, 66 F.2d 85. O'Neill was a federal prisoner and this Court held that he had served all but seventy-four days of a void fourteen months sentence.
The other federal case is Reid v. Sanford, Warden, D.C.N.D.Ga.1941, 42 F.Supp. 300, 304, in which Judge Underwood ordered a federal prisoner discharged where he found that the conviction was of doubtful validity and that he had "already served about all that would be required on a valid thirty-year sentence."
With such scant supporting authority, the action ordered by the majority here, in my opinion, sets a dangerous precedent, and the reasoning by which its conclusion is reached deserves to be carefully tested.
When this case was before this Court before Judge [then Chief] Hutcheson wrote a very able dissent
The majority in the present opinion concedes that the provisions of Art. 543 were not complied with and that those provisions are valid and enforceable. But it does not, in my judgment, follow what it concedes.
The chief discussion by the majority opinion of both of the points sent back by the former decision for trial has as its major thesis that appellant did not want to be represented by attorneys and so told the court, that the court forced attorneys upon him
(a) To begin with, this whole contention was abandoned by the attorney who represented MacKenna before the court below.
Near the end of the colloquy the same idea was repeated:
The majority ignores this narrowing of the issues altogether. But I think it is of great importance and that this experienced and capable attorney, having examined the appellant and subjected his two court-appointed attorneys to a vigorous cross-examination, was convinced that this point was without merit and that the question of the continuance was the only issue remaining in the case.
(b) The court below found the facts under this point squarely against the appellant. The judge was a Texan, familiar with Texas lawyers, Texas practice and Texas judges and, having observed the witnesses as they testified before him in open court, made specific findings, as set out in the margin.
Without question, MacKenna acquiesced in the appointment of the lawyers, giving them, according to his testimony, the names of witnesses, discussing with them whether he should take the stand, and generally consulting with them at least as his advisors — see Gray v. Ellis, supra. The point is, in my opinion, wholly without merit.
The other question presented, which the experienced counsel representing MacKenna in the lower court thought was the only question involved, was whether appellant's rights under the Fourteenth Amendment were violated by the Texas trial judge (apparently deceased when the case was heard by the court below) in his ruling on the so-called motion for continuance. The majority holds that appellant's constitutional rights were violated chiefly on the ground that one of the numerous bills of exceptions prepared by MacKenna recited that a motion for continuance was made and denied. I do not understand that the majority feels that the recital of this bill of exceptions is final and conclusive, because the opinion frankly admits that the motion mentioned in the bill of exceptions did not comply with valid Texas procedural statutes. The majority further concedes that the court below found the facts on this point against appellant.
It is important to recall that the experienced trial attorney representing MacKenna in the court below manifestly did not consider the recitals of the bill of exceptions final or important. He placed MacKenna on the stand and promptly had him testify to the details of what transpired in the handling of what he called a motion for continuance.
According to MacKenna's testimony, Messrs. Collier and Tucker had been appointed to represent him on Friday, September 28th. The three had a conference
The appointed lawyers testified that they also mentioned passing the case to the judge, although it was their understanding that the witnesses whose names were given them by MacKenna were character witnesses; and that it was their judgment, expressed to MacKenna, that it would be unwise to place any such witnesses on the stand since the fact of the seven former convictions of appellant would be brought before the jury.
At all events, it is conceded that no motion for a continuance as required by Texas law was ever made, and the action of the Texas trial judge upon which appellant predicates his claim of denial of constitutional rights is the judge's failure to grant the motion for continuance which he, himself, had made orally. It is plain, therefore, that there was no denial of constitutional rights under appellant's own testimony. The court heard all of the testimony of MacKenna and of the lawyers and found that MacKenna had not made out the case stated in his petition.
It is further clear that the witnesses brought forward in appellant's motion in the court below for a rehearing of the petition for habeas corpus would not have given testimony which would have changed the result. The appellant testified categorically that he was in fact at the fair grounds and that he there obtained the camera in question from a man he had come to know in the prison. The date was never made certain, but he fixed it somewhere between October 13th and October 18th, 1955. The main complaint of appellant is that the witnesses whom the two lawyers failed to have present would have testified that he had not been at the fair grounds at or about that time.
Surely the majority opinion fails to demonstrate the likelihood that any attorney would have made any effort to get character witnesses until after MacKenna had, over the attorneys' objection,
Boiled down, therefore, these conclusions from the testimony are patent: (1) no motion for a delay or continuance was made in writing or in conformity with Texas law, the motion mentioned in the bills of exception obviously being that mentioned in (2) infra; (2) the oral motion which MacKenna made, evidently in the absence of his counsel, was not denied, but the court merely suggested that the matter be handled by the attorneys; (3) the alibi witnesses whose statements were produced on motion for rehearing would not have helped appellant, because he admitted that he did get the camera at the fair grounds and because he was unable to fix any dates, and the witnesses whose statements were proffered were unable to recall any specific dates; (4) no adequate showing is reflected in the record that any person would have testified to his good character, and it is further manifest that, if they had attempted to do so, they would have been met with questions concerning his seven prior convictions of crime.
Under these circumstances we cannot, in my opinion, justify a holding that the findings of the court below were clearly erroneous, and certainly are not justified in holding that the handling of the so-called motion for continuance amounted to denial of due process of law.
Under well settled principles of law, the question of a continuance, even if legally raised, would have been one addressed to the discretion of the trial court: "That the action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question [citing five Supreme Court cases]." Isaacs v. United States, 1895, 159 U.S. 487, 489, 16 S.Ct. 51, 52, 40 L.Ed. 229. And see also Hardy v. United States, 1902, 186 U.S. 224, 22 S.Ct. 889, 46 L.Ed. 1137; and Avery v. Alabama, 1940, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377.
Reference in the majority opinion to the report of the Conference of Chief Justices at Pasadena, California, August, 1958, and to the other articles listed in Note 9 of the majority opinion indicates that it shares with me the feeling that the handling of habeas corpus by federal courts has been a prime factor in reducing to a low point the esteem in which they are held. Hardly a newspaper can be picked up which does not carry headlines about some revolting crime having been committed by an ex-convict. That group, it seems to me, is copiously replenished by the unwarranted intervention of federal courts into the police power of the States.
This case, it seems to me, furnishes a typical example. The opinion reflects upon the integrity and competence of Texas judges and law enforcement officers; upon the honesty and professional ability of two young lawyers who were commissioned by the court to represent this unfortunate appellant; upon the capacity of the court below to weigh evidence given before him in person and to find the facts as that evidence reflects them. And what is it which the majority finds so convincing as to impel it to so extreme a holding? Essentially, the monstrous tale of a highly educated man seven times convicted of violating society's laws. It is not hard to understand the natural feeling of sympathy such an unfortunate individual arouses. But we, as judges, are not permitted the luxury of allowing our judgment to be swayed by excess of sentimentality. Ours is the duty always to hold the balance true between the constitutional rights of the individual and the protection to which society is entitled.
Generally, "his right [an accused] to be heard through his own counsel [is] unqualified". Chandler v. Fretag, 1954, 348 U.S. 3, 9, 75 S.Ct. 1, 5, 99 L.Ed. 4. In MacKenna v. Ellis, 5 Cir., 1959, 263 F.2d 35, 40, we held: "Here, however, more than six months after his arrest and when there was no claim that he was prevented from communicating with counsel, he had reached only the negotiating stage. It was not error for the court to proceed without such counsel."
"In this case the witness, MacKenna, has a considerable interest. I cannot say myself that the strong claims that he makes at this time were existent at the time of the trial, the time of which he is complaining. The two attorneys who testified — and let it be noted that the rule was invoked, that they were both excused from the courtroom and neither heard the testimony of the other — each testified that there was no motion for continuance. * * *"
"Interrogatory No. 11. From your personal knowledge of the charge against Edward Morgan MacKenna, you could and would have offered testimony in his behalf, showing his whereabouts and other facts concerning the date of the alleged theft, October 18, 1955?
"Answer to Interrogatory No. 11: I do not recall his whereabouts on that day.
"Interrogatory No. 12. Testimony showing that during October, 1955, on every afternoon about 4:30 P.M., you drove to 2218 North Harwood Street, Dallas, his place of employment, picked up MacKenna, drove him home and spent the evening with him?
"Answer to Interrogatory No. 12: I did not.
"Interrogatory No. 13. And, to your best recollection and memory this specifically included the afternoon and evening of October 18, 1955?
"Answer to Interrogatory No. 13. I do not recall."
"Mr. President, the chief justices of State supreme courts, in their conference held in Pasadena, Calif., in August, 1958, found that the * * * Supreme Court `does not seem to have given any consideration whatsoever to the risks to society which might result from the release of a prisoner of this type.'
"The State chief justices were referring specifically to the case of Moore v. Michigan (355 U.S. 155 [78 S.Ct. 191, 2 L.Ed. 2d 167]). But for all intents and purposes, the statement is equally applicable to the Andrew Mallory case which the * * * Court decided on June 24, 1957.
"In this Mallory case the * * * Court seized upon what it chose to regard as a technical flaw in traditionally accepted police practice to turn loose a confessed and convicted rapist to prey again on innocent women.
"Andrew Mallory was arrested again in January 1958, little more than 6 months after he was freed, on charges of housebreaking and assault on the daughter of a woman who had befriended him.
"He was convicted on the assault charge April 4, 1958. Now he is indicted again in Philadelphia for rape and burglary.
"Certainly, the courts of this Nation must protect the rights and liberties of all of the people — but this means protection of innocent people, too. Here we have another example of the pattern of * * * Supreme Court decisions which has undermined the confidence of the American people in the Federal judiciary.
"The effect of the * * * Supreme Court decision in the original Andrew Mallory case was to hold that the police — not the rapist — had violated the law."
Another quotation from the extension of remarks of Senator Byrd appears at page A3746 of the issue of the Congressional Record — Appendix, May 3, 1960:
"`Some of us believe that enough has been done for those who murder and rape and rob,' said Senator Ervin, `and that it is time to do something for those who do not wish to be murdered or raped, or robbed.'"