Jordon v. Bondy, 7601.

• Decision Date: 29 July 1940
• Docket Number: No. 7601.,7601.
• Citation: 72 App. DC 360,114 F.2d 599
• Parties: JORDON v. BONDY, Director of Board of Public Welfare.
• Court: U.S. Court of Appeals — District of Columbia Circuit

72 App. DC 360, 114 F.2d 599 (1940)

JORDON v. BONDY, Director of Board of Public Welfare.

No. 7601.

United States Court of Appeals for the District of Columbia.

Decided July 29, 1940.

James J. Laughlin, of Washington, D. C., for appellant.

Edward M. Curran, U. S. Atty., and Allen J. Krouse, Asst. U. S. Atty., both of Washington, D. C. for appellee.

Before STEPHENS, MILLER, and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

Appellant seeks reversal of an order discharging his petition for a writ of habeas corpus and remanding him to custody to serve the remainder of a sentence imposed for murder, commuted from death to imprisonment for life. He claims that his constitutional rights were violated in the course of his trial, with the consequence that the court lost jurisdiction to proceed with it and to impose sentence. We find no merit in any of his contentions. On the contrary the entire proceeding, presented to us in a lengthy and repetitious record, has earmarks of a fishing expedition entered upon in the hope, now demonstrated baseless, that it would bring about the discovery of some violation of constitutional right which would make applicable the doctrine of Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

The facts concerning the crime and appellant's conviction of it are set forth fully in Jordon v. United States, 1936, 66 App.D. C. 309, 87 F.2d 64, certiorari denied, 1938, 303 U.S. 654, 58 S.Ct. 762, 82 L.Ed. 1114, wherein we affirmed the judgment under which he was convicted and originally sentenced. Subsequently executive clemency was denied but, following a Congressional investigation of the case, the President commuted the sentence to life imprisonment. Further proceedings also were had here, including a motion for a new trial on grounds of allegedly newly discovered evidence, which was denied because the judgment had become final before it was made, and the filing of a petition for leave to seek in the District Court a writ of coram nobis, which likewise was denied. This proceeding, instituted in April, 1939, became appellant's final resort for escape from the commuted sentence. The alleged violations of constitutional right, which appellant says terminated the court's jurisdiction and vitiated the sentence, consisted of: (1) asserted suppression of evidence by the United States Attorney and his assistant, who were in office when the case was tried; (2) alleged misconduct of the jury in receiving information while deliberating; and (3) alleged refusal or failure of the trial judge to be available to the jury while deliberating and to give further instructions which one or some of them demanded. The original petition made no mention of the two last asserted grounds for relief, but these were added by separate amendments made during the progress of the cause, one of them after hearing had begun and extensive evidence had been received.

A résumé of the salient facts concerning the crime and appellant's conviction is necessary to expose the full nudity of substance which characterizes his contentions. Appellant was convicted in 1936 of the murder of one Elizabeth Jaynes, which occurred April 3, 1931, in the course of a holdup or robbery in a restaurant known as the Garden T Shoppe near 18th Street on Columbia Road, N.W., Washington. The robbery was committed by two men at about 11:30 p. m. They were approximately twenty-five years of age, and one or both of them were masked. Mrs. Jaynes was the cashier. Other employees and several customers were present. One of the men stood guard, while the other went behind the counter to the cashier's cage and received from her or took from the cash register the money which it contained. While he was doing so a shot was fired from the pistol in his hands, which later caused Mrs. Jaynes' death. The robbers made hurried exit and escaped in a waiting automobile, in which, according to evidence given at the trial in 1936, was also a woman, one Edith Dodsworth, later charged with being an accomplice of appellant in the crime. Soon afterward police arrived at the restaurant. They interviewed Mrs. Jaynes and others, obtaining information by way of description of the robbers. Mrs. Jaynes was highly excited, but there is evidence that she did not know she had been shot when she talked with these officers.

Several suspects were arrested later for questioning in connection with the killing, including appellant and Edith Dodsworth in August, 1931. These two made statements then that they had discussed robbing the restaurant, but concluded the risk was too great, abandoned the idea, and were not on the premises on the night of the holdup or at any other time. They were held in jail for several months, but were released when the grand jury refused to find a true bill upon an indictment charging them with conspiracy to commit robbery.

Thereafter appellant removed to New York and in May, 1935, wrote to the United States Attorney for the District of Columbia, stating his desire to be married and adding: "and of course I have told the girl the truth. The only cloud on my name is my past connection with that case. I would like to know if there is a possibility of my going through another investigation? I am confident that it would not hurt me, but in fairness to the girl I would like to know definitely whether or not I am through completely with that case."

Soon afterward a police officer from the District went to New York, where he interviewed the appellant, who made and signed a confession that he and another committed the robbery. Later appellant returned voluntarily to Washington, where he made further confessions, one to the local police. In one of the confessions he stated that he fired the fatal shot unintentionally, but in another he said it was fired by his accomplice. One of the principal issues at the trial was identification of appellant as one of the persons who participated in the holdup. He then repudiated his previous confessions, four in all, including one made to the husband of the murdered woman and another made to the girl appellant hoped to marry; but in affirming his conviction, we said: "Enough has been said, we think, to show that appellant could neither have been charged with the murder nor convicted of the murder, except for his own statements. That these were voluntary and were made without coercion or promise, is admitted. In the last of them, and in his conversation with the husband of the deceased, he admitted taking part in the robbery and firing the fatal shot; and if the jury believed this, as they had every right and reason to do, there remained then only the question whether appellant was guilty of murder in the first or in the second degree." 66 App.D.C. loc. cit. 311, 87 F.2d loc. cit. 66. It is not necessary to elaborate further the facts which are essential as background against which the contentions now advanced by appellant must be considered. We shall discuss them in the order of their statement above.

I. The alleged suppression of evidence by the prosecuting officials consisted of their asserted failure to bring to the attention of appellant's counsel or of the court a certain record of the police department, known as a "police incidental," and the testimony of certain persons which appellant says might have caused the formation in the minds of the jury of a reasonable doubt concerning his guilt. He has introduced not an iota of testimony that the prosecutor actively concealed or suppressed any evidence bearing on the case; but he says that the prosecutor's failure to introduce the police incidental or call it to the attention of his attorney at or prior to the trial and to place upon the witness stand or give to his attorney the names of certain persons whose testimony it is claimed was material, constituted "suppression" of evidence. Appellant's theory, in the language of his brief, is as follows: "There was a duty on the part of the prosecuting officials to bring to the attention of the Court all material testimony that had a bearing on this robbery and murder to the end that justice would be done"; that the prosecuting officials "were guilty of suppression of evidence when they failed to produce these witnesses at the criminal trial or to advise counsel for the petitioner that such witnesses were available," and "when they failed to make available to the petitioner and his counsel the so-called police incidental." (Italics supplied)

To support this broad view of the prosecutor's function and duty, appellant cites excerpts from legal treatises, opinions of courts and public addresses to the general effect that the prosecuting officer has the duty not merely to secure the conviction of the accused, but rather to procure it only by methods which will assure a fair and an impartial trial, and especially to see that the accused is not deprived of constitutional or statutory rights. The salutary principle which imposes restraint upon overzealous prosecution cannot be emphasized too much with respect to circumstances which show that it has been violated. The accused is to be prosecuted, not persecuted. He is entitled by the Sixth Amendment "to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense," as well as to have immunity from self-incrimination under the Fifth Amendment. (Italics supplied)

Appellant's contentions, applied most broadly and especially in the manner sought here, go far beyond these constitutional guaranties and any statutory rights of the accused. In effect they would impose upon the prosecuting officer the duty not only to represent the public, but to represent the accused so far as not only to disclose but to discover evidence which might be considered material to the defense, regardless to some extent of...