United States v. Fromme, Crim. No. S-75-451.
| Decision Date | 24 October 1975 |
| Docket Number | Crim. No. S-75-451. |
| Citation | 405 F. Supp. 578 |
| Court | U.S. District Court — Eastern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Lynette Alice FROMME, Defendant. |
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Dwayne Keyes, U. S. Atty., Donald H. Heller, Asst. U. S. Atty., Sacramento, Cal., for plaintiff.
John E. Virga, Sacramento, Cal., for defendant.
On the morning of September 5, 1975, Gerald R. Ford, President of the United States, departed the Senator Hotel in downtown Sacramento and commenced a short walk across Capitol Park to the State Capitol for a scheduled meeting with the Governor of California. As he walked through the park, the President was greeted by numerous citizens and paused occasionally to shake hands. During one such handshaking stop, a woman in a red dress, who had been previously observed by the President standing next to a tree and who was visible to the President above her chest, suddenly moved her right hand forward toward the President through the crowd at about waist level. The President observed that she was holding a hand gun and that she was about two feet distant from the President. The gun, a .45 caliber pistol, did not fire.1 Agents of the Secret Service and local law enforcement officers immediately wrestled the woman to the ground while other agents quickly moved the President from the scene of the incident.
As a result of her conduct, Lynette Alice Fromme was arrested and indicted in this court for the crime of attempted assassination of the President of the United States in violation of Title 18 U.S.C. § 1751(c).
The issue presently before the court is a request by defendant Fromme to subpoena President Ford as a witness for the defense. As an initial matter, it must be noted that defendant, being an indigent, has no absolute right to subpoena any and all witnesses for the defense. F.R.Cr.P. 17(a). Since it will be necessary for the Government to incur the expense of witnesses, the provisions of F.R.Cr.P. 17(b) are applicable:
(emphasis added)
In accord with the constitutional mandate of the Sixth Amendment, the courts have displayed a liberal attitude in application of F.R.Cr.P. 17(b). Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108, 110 (1963); Welsh v. United States, 404 F.2d 414 (5th Cir. 1968); United States v. Hathcock, 441 F.2d 197 (5th Cir. 1971). As the court noted in United States v. Romano, 482 F.2d 1183, 1195 (5th Cir. 1973):
"If the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous."
In the instant case, the defendant has averred that if the President were called to testify, he would say that he neither heard a "click" of the weapon, nor did he hear the defendant say any words. Whether the weapon "clicked" or not is relevant to the issue whether the defendant pulled the trigger and would assist the defendant in meeting evidence the Government claims it can offer to the effect that a click was heard by a witness. Whether the President heard defendant utter any words is relevant to counter the testimony of other witnesses who are quoted in the indictment as hearing the defendant say words such as: and
During oral argument on this matter, defendant contended that a major issue in this case would be the question of intent: Did defendant intend to assassinate the President or did defendant, who purports to be an ecological advocate, do the alleged act with no intent to kill the President but only for the purpose of gaining publicity for her environmental causes. On the question of intent, the testimony of the President, as averred, would be most relevant. Further, the testimony of the President would have a rather high probative value as he was perhaps the most percipient of all witnesses to the alleged crime. For example, the President, in addition to the testimony indicated above, could likely testify as to the facial expression and demeanor of the accused at the critical moment. A jury could easily draw inferences on the question of intent from such testimony.
In fact, the testimony of the President is more than merely "averred" testimony. During oral argument, the Government presented an affidavit by the President wherein, inter alia, he attests that he has "no recollection" of either hearing a "click," or of hearing the defendant utter any words. Such testimony is obviously both relevant and necessary to an adequate defense. Clearly, on the basis of this affidavit, defendant has met her burden under F.R.Cr.P. 17(b).
Obviously, by the introduction of the President's affidavit, the Government has not sought to show that the averred testimony is either untrue or frivolous. The Government has argued, however, that this court should exercise its discretion and not issue the subpoena on the ground that the witness sought would present merely cumulative evidence.
It is true that a district court has discretion, and broad discretion, to deny the issuance of a subpoena on behalf of an indigent defendant where that subpoena would bring to the court a witness whose testimony is merely cumulative. Wagner v. United States, 416 F.2d 558 (9th Cir. 1969); United States v. Chapman, 455 F.2d 746 (5th Cir. 1972); United States v. Rosa, 493 F.2d 1191 (2d Cir. 1974). This court has carefully reviewed in camera the names and averred testimony of the other defense witnesses and determines that the testimony of the President in this case should not be denied on the basis of being cumulative. The Government has argued, however, that some of its witnesses may testify in a similar manner as the President. In the first place, the cases which consider judicial discretion to reject witnesses whose testimony is cumulative have considered the question only with regard to the witnesses sought by the defense, and not with regard to Government witnesses who might testify similarly as defense witnesses. Secondly, and more importantly, the testimony of the President, as noted, is unique due to his proximity to the defendant and the gun. The Government has not indicated that any other witness who was as close to the pistol and the defendant would testify in a manner similar to the President.
No consideration of "Executive Privilege" enters the equation at this stage of the proceedings. As Chief Justice ...
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