McGarrity v. Beto, Civ. A. No. 69-H-118.

• Decision Date: 21 April 1971
• Docket Number: Civ. A. No. 69-H-118.
• Parties: Thomas Picken McGARRITY, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

335 F. Supp. 1186

Thomas Picken McGARRITY, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 69-H-118.

United States District Court, S. D. Texas, Houston Division.

April 21, 1971.

COPYRIGHT MATERIAL OMITTED

Ed Bluestein, Jr., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., court appointed counsel for petitioner.

Crawford C. Martin, Atty., Gen., and Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for respondent.

MEMORANDUM AND ORDER

NOEL, District Judge.

Petitioner was arrested March 2, 1959, and charged with statutory rape of a 12 year old female child. He was indicted March 9, 1959, and later tried by a jury. On December 2, 1959, he was found guilty, and sentenced to life in prison. A notice of appeal was not filed, and a transcript of the trial was never prepared.

Shortly after his son's arrest, petitioner's father retained counsel to represent his son. Thereafter petitioner and his father became dissatisfied with counsel and discharged him. On September 15, 1959, petitioner and his father retained John Cutler, a resident attorney of Harris County, Texas. Mr. Cutler represented petitioner during the subsequent state trial.

On February 6, 1969, petitioner filed an application for the writ of habeas corpus in this Court. Jurisdiction is present, 28 U.S.C. § 2254, and the state's concession that state remedies have been exhausted is correct. Because petitioner was indigent and raised issues in his petition which necessitated an oral hearing, counsel was appointed to represent him.¹ Subsequently he was given a psychiatric examination and was found to be competent. (Petitioner's Exhibit 17.) At the oral evidentiary hearing the Court was able to observe petitioner and is convinced he was competent at that time.

The following opinion shall constitute the Court's findings of fact and conclusions of law in this case. F.R.Civ.P. 52.

1. At the oral evidentiary hearing petitioner elected not to present evidence to substantiate some of the claims he had previously asserted. Accordingly, the Court finds and concludes that the following contentions raised by petitioner have no merit, to wit: (A) his contention that he was denied due process because he did not receive a preliminary hearing; (B) his contention that he was denied due process because he was not allowed to make a phone call after his arrest; and (C) his contention that he was denied due process by the prejudicial comments of the prosecuting attorney during trial.

2. Petitioner's contention that he was denied due process because the state failed to prepare a transcript of his trial is erroneous. He did not appeal. Nor did he ever indicate to the state trial court that he was indigent. It has never been held unconstitutional for a state to authorize the destruction of criminal transcripts or court reporters' notes after a reasonable period of time has elapsed. Since no evidence was adduced indicating intentional state action designed to discriminate against petitioner, the Court finds and concludes that his contention is without merit. Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963); Worts v. Dutton, 395 F.2d 341, 343 (5th Cir. 1968); United States ex rel. McKee v. Pate, 371 F.2d 405, 407 (7th Cir. 1967) cert. denied 389 U.S. 864, 88 S.Ct. 124, 19 L.Ed.2d 133 (1968).

3. Petitioner's allegations that the State of Texas denied him due process by interfering with his right of appeal; his right to subpoena witnesses for his defense; and his right to be represented by counsel when given a psychiatric examination by the Harris County, Texas, psychiatrist are without merit.

At the oral hearing, petitioner was unable to adduce any evidence that state officials prevented his taking an appeal, or prevented his subpoenaing any witnesses. Instead, he presented evidence bearing on his contention that his retained counsel was incompetent for not subpoenaing witnesses or appealing the case. This evidence will be examined later in depth. Since there was no state interference with petitioner's rights, his contentions do not rise to a constitutional plane. United States ex rel. O'Brian v. Maroney, 423 F.2d 865 (3rd Cir. 1970) (appeal); Maguire v. United States, 396 F.2d 327, 330 (9th Cir. 1968) cert. denied 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792 (1969); Moore v. Beto, 320 F.Supp. 469 (S.D.Tex.1970).

None of the statements which petitioner made to the county psychiatrist were used as evidence against him. Therefore, the lack of counsel did not deny him due process.

4. Petitioner's attack upon the competence of his retained counsel, John Cutler, is without merit.² After a full examination of the evidence, I find and conclude that his counsel was competent.

Petitioner McGarrity's father retained John Cutler to represent petitioner on September 14, 1959. Mr. Cutler is and was an experienced criminal trial attorney. He was retained approximately two and one-half months before petitioner's trial.

Mr. Cutler testified that he interviewed petitioner and his family prior to trial. He indicated that he did not recall all the details of petitioner's case as he had tried numerous cases in the intervening period. In response to questions about the tactics he used, he stated that he cross-examined the state's witnesses and called petitioner and other witnesses to establish the defenses of denial and alibi.

Other evidence corroborates Mr. Cutler's assertions that he waged a full defense. Petitioner introduced the handwritten notes which had been made by one of the state prosecutors during the trial (Petitioner's Exhibit Nos. 3 and 8). These notes reflect that Mr. Cutler called numerous defense witnesses.

Mr. Neil McKay, the prosecutor in charge of McGarrity's case, corroborated the authenticity of the notes mentioned above. He also remembered that Mr. Cutler had waged a spirited defense.

From these notes, Mr. McKay's testimony, and the testimony of Mr. Cutler, it is clear that Mr. Cutler investigated petitioner's claims and did indeed wage a spirited defense.

After extensive historical analysis of Eighteenth Century common and statutory law, the Supreme Court of the United States held in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), that the Fourteenth Amendment's guarantee of due process insures an accused that when he is entitled to the assistance of counsel for his defense the counsel's representation will be "effective". The Court then enumerated that Powell's counsel had been ineffective because they did not have time to properly consult with Powell; to investigate the facts; or to otherwise prepare for trial; and, because their representation had been pro forma, not zealous or active. Id.

The Court of Appeals for this Circuit has written extensively on the duties of criminal counsel. The clearest statement of the test which the Court of Appeals uses to judge the performance of counsel was enunciated in Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). There the Court stated:

It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.

Id., 704. See also: King v. Beto, 429 F.2d 485 (5th Cir. 1970) (per curiam). 6 L. B. Orfield, Criminal Procedure Under the Federal Rules, § 44:24 (1967).

The Court in Williams went on to point out that effective counsel is not perfect counsel; and that, "Lawyers are not required to be infallible. If they were, law practice would soon totally disappear." Id. 354 F.2d 705, Orfield, supra, at 89.

Incompetency, infidelity, or ineffectiveness of counsel are not proven by counsel's loss of a case. Id.

In every difficult case an attorney is called upon to make numerous close tactical decisions, and, the fact that generous indulgence in hindsight or the statements of another attorney indicate a different tactical choice would have reaped a better result does not prove incompetence. Id.

In Williams the Court emphasized that when counsel "decides as his knowledge, experience, and talents best permit, and then moves ahead * * * that * * * this is all any lawyer can do, and the client has no right to complain of the absence of a miracle." Id.

In each of the cases to be discussed below the presence of the error enumerated was held insufficient to prove ineffective counsel, to wit: (A) A stipulation that certain drugs were narcotic when they were not, Gambill v. United States, 276 F.2d 180 (6th Cir. 1960); (B) Failure to call alibi witnesses who counsel believed would harm his defendant's case although by his refusal disobeying his client, Gray v. United States, 112 U.S.App.D.C. 87, 299 F.2d 467 (1962); (C) Failure to raise the defense of insanity where the facts of the case showed that the defendant was not psychotic — merely sociopathic, McHale v. United States, 106 U.S.App.D.C. 24, 268 F.2d 899 (1959); (D) Failure to object to the use of an inadmissible confession, Johnson v. United States, 333 F.2d 371 (10th Cir. 1964); and (E) Failure to correctly estimate the punishment which could be assessed and therefore unduly curtailing jury agreement, United States ex rel. Hughes v. Rundle, 307 F.Supp. 996 (D.C.Pa.1969).

From an analysis of the case law it is evident that effective counsel need not be errorless counsel. Instead the Courts emphasize that effective counsel is one who, having the interests of his client at heart, attempts to render the best defense possible under the circumstances.

In attempting to prove that Mr. Cutler was incompetent petitioner asserted that his incompetence was shown because he failed to: (A) appeal the case when requested to do so; (B) subpoena alibi...