McDonald v. Swope

Decision Date24 July 1948
Docket NumberNo. 28210.,28210.
Citation79 F. Supp. 30
CourtU.S. District Court — Southern District of California
PartiesMcDONALD v. SWOPE.

Before William Denman, United States Circuit Judge of that Circuit.

DENMAN, Circuit Judge.

Petitioner on the hearing of the order to show cause filed an amended petition, upon which the writ was issued. The Warden made his return and it was stipulated that the amended petition should be deemed petitioner's traverse to the return.

Hearing was had. The petitioner did not testify but offered in evidence the depositions of Judge Moinet, who presided at the trial on which petitioner was convicted, of United States Attorney Babcock, prosecuting him, and of George F. Curran, the attorney defending him.* Petitioner, without counsel, and Assistant United States Attorney Joseph Karesh argued the case and it was submitted.

On this evidence I find that each of the allegations of the amended petition is true and conclude that the Warden is holding the petitioner without warrant on a commitment on an invalid judgment.

Opinion

This is petitioner's third proceeding for a writ of habeas corpus. It presents a ground on which the facts were known to petitioner at the time of the filing of the prior two petitions, but concerning which petitioner "was unaware of the significance of the relevant facts."1

There is no clearer case showing the wisdom of the decision of the Supreme Court in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 1063, in which it was said, "In the second place, even if it is found that petitioner did have prior knowledge of all the facts concerning the allegation in question, it does not necessarily follow that the fourth petition should be dismissed without further opportunity to amend the pleadings or without holding a hearing. If called upon, petitioner may be able to present adequate reasons for not making the allegation earlier, reasons which make it fair and just for the trial court to overlook the delay. The primary purpose of a habeas corpus proceeding is to make certain that a man is not unjustly imprisoned. And if for some justifiable reason he was previously unable to assert his rights or was unaware of the significance of relevant facts, it is neither necessary nor reasonable to deny him all opportunity of obtaining judicial relief." (Emphasis supplied.)

The petitions filed in the two prior cases are a confused intermingling of allegations and attached exhibits which failed to set forth the contentions here urged. Petitioner, a layman, is one of those persons who, as stated by the Supreme Court in the Price case, "are often unlearned in the law and unfamiliar with the complicated rules of pleading. Since they act so often as their own counsel in habeas corpus proceedings, we cannot impose on them the same high standards of the legal art which we might place on the members of the legal profession. Especially is this true in a case like this where the imposition of those standards would have a retroactive and prejudicial effect on the prisoner's inartistically drawn petition. Cf. Holiday v. Johnston, 313 U.S. 342, 343, 350, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392; Pyle v. Kansas, supra, 317 U.S. 213, at page 216, 63 S.Ct. 177, at page 178, 87 L.Ed. 214; Tomkins v. Missouri, 323 U.S. 485, 487, 65 S.Ct. 370, 371, 89 L.Ed. 407; Rice v. Olson, 324 U.S. 786, 791, 792, 65 S.Ct. 989, 992, 89 L.Ed. 637."

His petition before me was amended so that it states for the first time the later realized reasons and facts showing the failure to constitute a constitutional court for the trial in which he was convicted — particularly for the first time realizing that the duty of his attorney to tell the court the powerful interest of the attorney adverse to petitioner which made it clear that the attorney was disqualified to represent him. Once stated, the defect in the court protrudes like the "sore thumb" of colloquial speech.

I find and hold that here has been no abusive use of the writ.

The undisputed facts are that petitioner, then imprisoned under another sentence, was indicted with one Barnowski on charges of violations of 12 U.S.C. 588(b), subsections a and b, 12 U.S.C.A. § 588b (a, b), respecting the robbery of a Federal Reserve Bank. There were six counts of the indictment on which petitioner, on January 24, 1939, was tried and on January 26th sentenced to a 35-year imprisonment, later reduced to 25 years.

The indictment on which he was convicted was returned to May 4, 1938. There was a long delay in its prosecution. On October 5, 1938, petitioner employed one Curran, an attorney, to secure immediately a writ of habeas corpus to procure a prompt trial.

Believing Curran had not made such an application and that Curran was derelict in not doing so, petitioner on November 1938, filed with the grievance committee of the Michigan State Bar Association charges against Curran for malpractice in failing to apply for such a writ of habeas corpus. During all the relevant times thereafter and until March 10, 1939, that is after petitioner had been convicted and sentenced, petitioner's charges against Attorney Curran were pending before the Michigan State Bar Association.

Although petitioner was entitled to believe that his charges against Curran terminated any prior relationship of attorney and client, Curran, without advising petitioner, on January 10, 1939, entered his appearance as petitioner's attorney for his defense under the indictment under which he was subsequently convicted.

However, though in so attempting to assume the representation of petitioner, Curran attempted no contact with him to prepare his defense until the night of January 23 — that is the night before the case was set for trial — when petitioner was consulting with another attorney for his defense. Curran stated that he was petitioner's attorney but did not obtain the names of any witnesses from petitioner. The reason he then obtained the names of no witnesses for the defense at the trial beginning the next day is apparent from his testimony that "Well, there was a little bit strained feeling between McDonald and myself at that time. We did not have an awful lot of conversation. I merely informed them that I would be in court the following day, as I had filed an appearance and would have to be there."

From the above facts I infer that there was a feeling of hostility between petitioner and Attorney Curran which Attorney Curran then realized by his failure to obtain the names of petitioner's witnesses.

On the morning of January 24, 1939, before the trial commenced, the differences between attorney and client continued and Attorney Curran said to the petitioner that "I could not and would not ask to be discharged from the case, but that if he the petitioner wanted he could so advise the court, which he did." Curran further testified: "Q. Did the court grant his request. A. It did not."

From Curran's false statement that he "could not * * * ask to be discharged from the case," it is apparent that the layman petitioner well could feel that he was entrapped for the trial of the case through an attorney purporting to represent him where, if convicted, the petitioner would be imprisoned and unable to prosecute his charge of malpractice against his attorney and where, in the malpractice hearing, his conviction could be offered as a justification for the failure to seek the writ of habeas corpus for a prompt trial.

In these circumstances it is obvious that it was Attorney Curran's duty to advise the court of the facts, to ask to be discharged from his representation of petitioner, and to ask for a continuance of the trial of petitioner until through the court or otherwise, an attorney was appointed without any adverse interest to his client.

The evidence is clear that instead of such action by Attorney Curran he did nothing, this being the testimony of both Judge Moinet and of the prosecuting attorney, whose depositions were taken and put in evidence before me.2

It is thus apparent that the essential element of the relationship of attorney and client, namely, mutual trust and confidence, was glaringly absent. Obviously no client in that situation would feel himself safe in communicating to such an attorney facts which would appear at the trial tending to incriminate him, but which could be controverted. If he gave him the names of witnesses to prove an alibi he would fear that such an attorney would fail to find them.

This interest of the attorney adverse to the client who was prosecuting him for malpractice is more marked than in the case of Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680, for Glasser's attorney had an interest adverse to him merely because he represented another client in the same trial with a possible diverse defense. The failure of Glasser's attorney efficiently to represent him consisted of the condition of that attorney's mind because of his adverse interest of the other client. Here the adverse interest of the attorney infected the petitioner's mind with hostility because of the adverse interest in his attorney with respect to the charges pending against that attorney by his client and, unless the attorney had the mental skin of a rhinoceros, he then must have realized it. It is the condition of mind of attorney and client which determines the adverse interest.

On the morning of the trial on January 25th, at its beginning, the petitioner advised the court that there was a difference existing between himself and Curran. The testimony of the prosecuting attorney there present is as follows:

"Q. Do you recall any conversation that occurred at the commencement of the trial relative to any statement made by the petitioner McDonald in court that morning? A. I remember that when Court opened Judge Moinet asked if we were ready to proceed with the trial, and I advised him the Government was ready to proceed. I don't recall what response Mr. Curran made, but I recall that McDonald rose from his chair and said to ...

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    ..."court" includes a combination of the persons, including juries, who decide issues in the context of a courtroom. See McDonald v. Swope, 79 F.Supp. 30, 35 (M.D.Cal.1948); In re Caruba, 139 N.J.Eq. 404, 51 A.2d 446 (1947); State ex rel Harp v. Vanderburgh Circuit Court, 227 Ind. 353, 85 N.E.......
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
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