Moore v. Reid
Citation | 100 US App. DC 373,246 F.2d 654 |
Decision Date | 03 May 1957 |
Docket Number | No. 13581.,13581. |
Parties | James Clarence MOORE, Appellant, v. Curtis REID et al., Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Mr. Dayton M. Harrington, Washington, D. C. (appointed by the District Court), for appellant.
Mr. E. Tillman Stirling, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Edward P. Troxell, Principal Asst. U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellees.
Before EDGERTON, Chief Judge, and WILBUR K. MILLER and DANAHER, Circuit Judges.
Petitioner, having been sentenced to serve a three to nine year sentence for housebreaking, was conditionally released from Atlanta Penitentiary on July 16, 1955, after earning 1,038 days' "good time" credit. On December 20, 1955, he was arrested for violation of a condition of his release, and was imprisoned at once. Action upon his petition for a writ of habeas corpus was deferred upon the Government's representation that a Parole Board Examiner's hearing was about to be held, and the petition was dismissed after the Examiner had gone forward with his revocation hearing.
On appeal, we ordered a full hearing. The Government, in a supplemental return and answer to the original order to show cause, relied upon the Examiner's hearing, and further pleaded that the Parole Board's order of revocation was not arbitrary but was based upon substantial evidence of violation of the terms of appellant's conditional release. The present appeal attacks the order discharging the writ.
The District Judge set forth many pertinent facts in a careful opinion1 which delineates the narrow scope of the review authority permitted to the courts in a situation of this kind. However correct the opinion as far as it went, we think it did not reach to the heart of the matter. Perhaps we should have been more specific in our earlier order of remand, but since we did not have the Transcript, we did not then inquire whether or not there had been infirmity in the hearing before the Examiner. We ordered a hearing at which the Transcript was to be received in evidence. It is now before us as we examine the record. 2
In re Tate3 noted that 4 The Government then appealed, pointing out that the federal authorities since 1910 had refused to permit counsel to appear or testimony to be offered at such hearings.
In Fleming v. Tate5 we rejected the administrative practice. We pointed out that not only must an accused have an opportunity to appear before the Board, but that "a statute giving him a right to a hearing would seem to carry with it the right to representation."6 We discussed the scope to be permitted to counsel and noted that the presence of counsel is a measure of protection to the prisoner and at the same time of assistance to the Board itself. We adopted with approval the reasoning which led to the granting of the writ. The District Judge had held that the section considered calls for "an effective appearance, and thus necessarily means the presence of counsel if the prisoner so elects, and the receipt of testimony if he has testimony to present."7
There is no record that the appellant here was advised of his right to elect to have his counsel present.8 The stenographer who took notes of the hearing before the Examiner testified she had no recollection of the Examiner's offering counsel to the appellant or of the latter's request for one. Examiner Neagles did not testify. Appellant's claim has been that no "hearing" should go forward before the Examiner since he had filed his petition for habeas corpus in court. He testified: "So I immediately told him I wasn't ready for no hearing because I had a petition in Court and I wanted my lawyer to be present if I were going to have a hearing and he told me that was irrelevant to the fact, that was outside his jurisdiction, one was a legal matter and this was a parole procedure * * *."9
We are satisfied that appellant made no election not to have counsel at the Examiner's hearing. We fail to see how his "election" can be said to bind him if he were not advised of his privilege. Nor does the record establish a waiver on his part. Indeed, the courts will indulge every reasonable presumption against waiver. While appellant had no constitutional right to counsel before the Examiner, he had a statutory right to such representation which he cannot be said to have waived unless there was an "intentional relinquishment or abandonment" of that "known right or privilege."10 Though the Board need not assign counsel, it should make sure the prisoner knows "he may be represented by counsel." (Note 8 supra.)
We look next to the circumstances in which the lack of counsel looms so large. We do so against the background of the Court's observation:
11
In this very case, as part of the preface to appellant's personally prepared petition he said:
We quote in part and paraphrase other allegations that appellant "could and should not have been arrested" as a parole violator when he never had applied for or received a parole; that the warrant was not legal since it had been signed only by the Chairman of the Board, that it did not represent the action of four of the seven members and that Congress had given only to courts and commissioners the power to commit; that the parole officer told appellant he was being sent back to the Penitentiary for associating with criminals by writing to inmates in the Penitentiary whereupon
If ever a lawyer were needed, it would seem that this appellant needed one. The inference is inescapable that appellant, under a complete misapprehension as to his status as a conditional releasee, failed to appreciate the significance of the hearing before the Examiner or the extent of the latter's authority. Had appellant been advised by counsel, at the very least he would have been caused to understand the nature of the proceedings. Participation by counsel might have insured to the Examiner and hence to the Board, as well as the parolee, that the Board be accurately informed of all circumstances before it acted. Surely counsel could have undertaken to place in proper light the facts of record and the significance to be attributed to them. The record shows that the Examiner informed the appellant: "As I see it, the reason why your conditional release was violated was that you wrote to inmates at Atlanta using an alias after you were warned not to."
Thus, the record shows, the hearing or interview involved, in part, appellant's version of his relationship with one Green and certain correspondence to which reference will be made. That the discussion on these matters was significant and completely critical is beyond question.12
Certain other features now become relevant to an understanding of the total situation. While in prison appellant developed an interest in one Wilbert William Green, an inmate serving a sentence of some 13 to 39 years. Appearing before a notary public in the prison on October 6, 1954, appellant subscribed to an instrument attested by two witnesses, acknowledging that he "do here by adopted * * * Green, as my lawful and legal son, and that he will from hereon, enjoy all social and financial benefits of the family — Be it know that I am inclosed in both sound mind and body as I sit fourth my hands to sign this legal adoption."
Released from the prison on Saturday, July 16, 1955, appellant reported in...
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