United States v. Smith, Cr. No. 800-55.

• Citation: 179 F. Supp. 684
• Decision Date: 21 December 1959
• Docket Number: Cr. No. 800-55.
• Parties: UNITED STATES of America, Plaintiff, v. Daniel SMITH, Jr., Defendant.
• Court: U.S. District Court — District of Columbia

179 F. Supp. 684

UNITED STATES of America, Plaintiff, v. Daniel SMITH, Jr., Defendant.

Cr. No. 800-55.

United States District Court District of Columbia.

December 21, 1959.

Oliver Gasch, U. S. Atty., and Thomas A. Flannery, Asst. U. S. Atty., Washington, D. C., for plaintiff.

Paul R. Connolly, Jr., Washington, D. C., for defendant.

HOLTZOFF, District Judge.

This is a motion for a new trial on the ground of newly discovered evidence. The questions raised by the motion are of such a nature as to require a review of the history of the case, of the issues involved and of the evidence, in order to make it possible to determine the relation of the alleged newly discovered evidence to the other aspects of the case.

The defendant was indicted on a charge of murder in the first degree. The specific charge was that he beat his wife to death by means of striking her about the head and body with a blunt instrument. The contention of the Government at the trial was that he beat her over the head with two flatirons and an iron pipe, causing a hemorrhage from which she died. At the trial the defendant was represented by an experienced trial lawyer who specialized in the trial of criminal cases. The defense was conducted energetically, intelligently and with well directed zeal.

The trial consumed almost three days and resulted on January 18, 1956, in a verdict of guilty of murder in the second degree. On February 10, 1956, the defendant was sentenced to imprisonment for a term of not less than ten and not more than thirty years. Subsequently, the defendant, in propria persona in view of the fact that apparently trial counsel felt that he should not pursue the matter any further, applied for leave to appeal in forma pauperis. This Court denied the application. The Court of Appeals for the District of Columbia Circuit later denied a similar application. The matter, however, was taken to the Supreme Court and on January 12, 1959, 358 U.S. 281, 79 S.Ct. 322, 3 L.Ed.2d 299, the Supreme Court vacated the order of the Court of Appeals denying leave to appeal and directed that leave to appeal in forma pauperis be granted.

The defendant then applied to this Court for the appointment of counsel. In view of the importance of the matter, the Court appointed a well known, experienced trial lawyer, Mr. Paul R. Connolly, to act as counsel for defendant. The Court appreciates the public service that Mr. Connolly has rendered in this matter and wishes to express its gratitude to him. In connection with his activities in the appellate proceedings, Mr. Connolly determined that a motion for a new trial on the ground of newly discovered evidence should be made. This motion was recently filed and has now been argued before this Court.

At the outset the question arises whether this motion was filed in due time. Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., prescribes a limitation of two years "after final judgment" for the filing of a motion for a new trial on the ground of newly discovered evidence. Final judgment of this Court was rendered, as stated above, on February 10, 1956. Consequently, a much longer period than two years has expired since the rendition of the final judgment of this Court. It is argued, however, by counsel for the defendant that the words "final judgment" as used in the rule are not limited to the final judgment of the trial court but may also include the final judgment of an appellate court. In this case, of course, no final judgment has as yet been rendered by any appellate court. It is the understanding of this Court that proceedings on the appeal have been stayed by the Court of Appeals during the pendency of this motion. It is, therefore, contended by counsel that actually the two-year period has not begun to run. Some support is found for the contention of defense counsel in a dictum contained in Harrison v. United States, 191 F.2d 874, 876, a case decided by the Court of Appeals for the Fifth Circuit. Assuming, without deciding, that this motion was timely filed, the Court will determine it on its merits. In view of the importance of the issues involved the Court is of the opinion that it would not be in the interest of substantial justice to dispose of such a motion as this on what, after all, would be a technical ground.

The newly discovered evidence consists of affidavits made by five eminent neurosurgeons in this city, which contradict the medical opinion expressed by the deputy coroner at the trial, the deputy coroner, himself, being a physician of long experience and many years' standing. At this point the Court wishes to observe that the affidavits of these neurosurgeons were not made on any partisan basis. They were not prepared for compensation but were made as a matter of public service at the request of defense counsel, who, himself, is rendering a public service. For this reason the Court feels indebted to these neurosurgeons for their public spirited contribution to the administration of justice.

At the outset we must determine whether, however, the evidence submitted is strictly speaking newly discovered. It is evidence that was available and could have been obtained for use at the trial. If the deputy coroner's testimony surprised defense counsel and he needed a short continuance in order to consult other physicians, I think it is reasonable to assume that such a continuance would have been granted in the interest of justice. It is natural for different counsel to use different strategy in the trial of a case. Counsel who now appears is using a strategy of a different nature than that employed by trial counsel. The rule has always been that newly discovered evidence must be evidence that could not have been discovered by the exercise of due diligence for use at the trial. Otherwise a motion for a new trial on the ground of newly discovered evidence is ordinarily denied. So, too, such evidence must not be cumulative. While, therefore, the Court has grave doubt as to whether the evidence here presented in support of the motion is strictly speaking newly discovered evidence in the sense in which the term is used in the doctrines governing such motions, nevertheless, the Court is going to determine the matter on its merits because it is of the opinion that substantial justice requires disposition of that kind.

If there has been a miscarriage of justice, it should be rectified irrespective of any technical obstacles, and that is the usual view of this Court where substantial rights are involved. At the same time it must be borne in mind that the granting of a new trial is a very serious matter. The longer the time that has elapsed since the trial has taken place, the more serious the matter becomes. Granting a new trial does not merely mean recalling the witnesses and having them give the same testimony all over again, plus the addition of new evidence. It is not as simple as that. Here more than three years have expired since the trial. During the intervening period, witnesses may have disappeared or some of them may have died, while the memory of others may have faded to a considerable extent so that they can not recall certain details, and their testimony would be very much weakened. Consequently, it may be difficult to secure a conviction at a second trial if a long interval of time elapses between the first and second trial.

The public...