Washington v. Clemmer, No. 18602.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM
Citation339 F.2d 715,119 US App. DC 216
PartiesWilliam Andrew WASHINGTON, Appellant, v. Donald CLEMMER et al., Appellees.
Decision Date11 May 1964
Docket NumberNo. 18602.

119 US App. DC 216, 339 F.2d 715 (1964)

William Andrew WASHINGTON, Appellant,
v.
Donald CLEMMER et al., Appellees.

No. 18602.

United States Court of Appeals District of Columbia Circuit.

On Motion for Summary Reversal Argued May 8, 1964.

Filed May 11, 1964.


339 F.2d 716

Messrs. Edward E. O'Neill, Washington, D. C., and Alan M. Perlman, Silver Spring, Md., for appellant.

Messrs. Frank Q. Nebeker and Lawrence S. Schaffner, Asst. U. S. Attys., for appellees.

Messrs. David C. Acheson, U. S. Atty., and John A. Terry, Asst. U. S. Atty., also entered appearances for appellees.

Before BAZELON, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges.

PER CURIAM:

This is a habeas corpus case challenging the lawfulness of the procedures used in a preliminary hearing. Appellant, an indigent juvenile, was charged with the capital offense of abetting a rape. After the juvenile court waived jurisdiction, he was brought before the United States Commissioner on May 7, 1964,1 for a preliminary hearing to determine whether there was probable cause to believe that an offense had been committed and that the appellant had committed it. Rule 5(c), FED.R.CRIM.P. The Government's only witness was a police officer of the Sex Squad who testified to the complainant's story and to certain statements made by the appellant. The appellant, represented by a Legal Aid attorney, requested that a stenographic reporter be made available and that subpoenas issue for the complaining witness and other persons named as material witnesses in the complaint. These requests were denied; the first for alleged want of authority, and the second without explanation. The Commissioner found probable cause and held the appellant for action by the Grand Jury.

On May 8, the appellant petitioned the United States District Court for a writ of habeas corpus,2 on the

339 F.2d 717
ground that he was being held illegally since the Commissioner's procedures were illegal. The petition was denied; the accused at once appealed to this court and moved for summary reversal. After oral argument, this court on May 9 issued its order reversing the District Court, directing that the writ issue forthwith, returnable before 4:00 P.M., May 11, and requiring that the writ be made absolute at that time unless a preliminary hearing complying with specified standards is held before then. The Government has now petitioned for recall of our mandate and for rehearing en banc. This memorandum opinion of the sitting division is intended to accompany the order of May 9

I.

The appellant requested the Commissioner to obtain a stenographic reporter for the preliminary hearing. As the Government concedes in its petition, the Commissioner has the authority to secure a reporter for his hearings.3 The Commissioner's failure to grant the request here was error.

Generally it would be desirable to record the testimony given at every stage of the criminal process. The preliminary hearing is an adversary judicial proceeding necessary to authorize continued constraint of the accused.4 Absence of a transcript makes it difficult, if not impossible, to review the Commissioner's finding of probable cause.5 And verbatim recording of testimony at an early stage of the process perpetuates the fresh memory of witnesses, making it available in case of subsequent death, disability, or flight, and allowing impeachment or refreshing of recollection at trial. Accordingly, early recording also serves to discourage threats against witnesses and suborning of perjury.

And even if the absence of a transcript might ultimately be found not prejudicial, obviously it is not possible to predict such an eventuality, and the Commissioner should therefore ordinarily grant a request for a reporter.

We think these reasons justify the exercise of our supervisory power over the administration of criminal justice in the District of Columbia6 to require stenographic recording of testimony at the preliminary hearing.

We also think this course is required by minimal standards of fair and equal justice. Defendants who have funds are entitled to employ their own

339 F.2d 718
reporters.7 To deny this opportunity to an indigent defendant would be to permit invidious discrimination based on wealth.8 Furthermore, since the Government may have a reporter at the hearing,9 the accused must be afforded the same right in order to meet the requirements of fundamental fairness.10

II.

The defendant requested that subpoenas issue; the Commissioner denied the request without explanation. The United States Attorney concedes in his petition that the Commissioner has authority to secure subpoenas at the request of the defendant. Rule 5(c), FED. R.CRIM.P., guarantees to the accused before the Commissioner the right to "introduce evidence in his own behalf." Rule 17(a), FED.R.CRIM.P., provides that "A subpoena shall be issued by a commissioner in a proceeding before him, but it need not be under the seal of the court." We read Rules 5(c) and 17(a) to require the Commissioner to subpoena material witnesses reasonably requested by the accused. The Commissioner's failure to do so here was error.

Generally, a subpoena will issue as a matter of course on the request of counsel. If, however, the accused should aver that he cannot afford subpoena fees, Rule 17(b), FED.R.CRIM.P., would seem to be applicable: "The court or a judge thereof may order at any time that a subpoena be issued upon motion or request of an indigent defendant." As we said in Greenwell v. United States, 115 U.S.App.D.C. 44, 46, 317 F.2d 108, 110 (1963), "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."

Likely to be called on this basis, in addition to alibi witnesses, are the complainant and other material witnesses named in the complaint who for some reason have not been called by the Government.11

As we noted in Greenwell, supra, at n. 5, the decisions of the Supreme Court require that the interpretation of the Rules, and the procedures under them, assure "to the greatest degree possible" "`equal treatment for every litigant' before the bar of criminal justice, regardless of financial ability."12 We are sure that the Commissioner and the District Court will have no difficulty in providing a procedure for the formal approval of indigent subpoenas by a judge which Rule 17(b) seems to require. We note that

339 F.2d 719
the United States Attorney may secure subpoenas for defense witnesses in the preliminary hearing. It may well be that in proceedings before the Commissioner, in order to avoid the delay and inconvenience of formal application before the judge for the subpoenaing of witnesses under Rule 17(b), the Government may simply authorize the indigent's subpoenas. Whatever procedures are worked out, of course, must be such that no barriers are faced by the indigent accused in the securing of witnesses that are not faced by the wealthy

III.

According to the Government's petition, our order of May 9, 1964, holds that, since the officer who testified at the hearing had no personal knowledge of the events described in the complaint, "his testimony provided an insufficient basis for appellant to be held for grand jury action." We do not so hold. Nor do we hold the contrary. We hold only that the summary notations in the Commissioner's Record of Proceedings fail to provide a sufficient basis for reviewing the determination of probable cause.13 There are inherent inadequacies in any notes offered in lieu of a transcript. Here, the notes are ambiguous and incomplete, and counsel offer us conflicting versions of material parts of the testimony. Furthermore, we cannot discern from this record whether, under the circumstances, the Government's exclusive reliance on the officer's testimony was justified. The competency and sufficiency of the evidence necessary to establish probable cause depends on the circumstances of each case. It will be time enough to review the adequacy of the testimony offered in a case where we know, from a transcript, just what the testimony was.

The order of May 9 remains the order of this court. The return date of the writ of habeas corpus will be changed, however, to not later than Wednesday, May 13, 1964, at 4:00 P.M., to allow the Government, if it is so advised, to request a stay from the Circuit Justice and to petition for a writ of certiorari. The mandate is accordingly recalled, so amended, and reissued. Opinions supplementing this memorandum may be filed at a later date.

So ordered.

AMENDED ORDER

PER CURIAM.

The above-entitled case came on for hearing on appellant's motion to summarily reverse the order of the District Court denying appellant's petition for a writ of habeas corpus and said motion was argued by counsel.

It appearing from the record of proceedings before the United States Commissioner in Commissioner's Docket 12, Case Number 474, that appellant's preliminary hearing was held on May 7, 1964, on a complaint charging rape, a capital offense, and it

Further appearing that appellant's request to obtain a stenographic reporter was denied, and it

Further appearing that appellant's request that subpoenas for witnesses be issued was denied without explanation, and it

Further appearing that the sole witness for the United States had no personal knowledge of the event described in the complaint, and it

Further appearing that the record is insufficient to determine whether there was competent evidence to establish probable cause for detention of the accused;

It therefore appearing to the court that the procedures adopted by the United States Commissioner were inadequate under the circumstances, it is

ORDERED...

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26 practice notes
  • Coleman v. Burnett, No. 71-1114.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 14, 1973
    ...question whether hearsay was admissible in preliminary hearings remained open with us, see Washington v. Clemmer, 119 U.S.App. D.C. 216, 339 F.2d 715, following remand, 119 U.S.App.D.C. 226, 229, 339 F.2d 725, 728 (1964); Ross v. Sirica, supra note 55, 127 U.S.App.D.C. at 18, 330 F. 2d at 5......
  • United States v. Edwards, No. 80-294.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 8, 1981
    ...interest in protecting the emotional and physical well-being of its witnesses. See Washington v. Clemmer, 119 U.S.App.D.C. 216, 219 n. 11, 339 F.2d 715, 718 n. 11 (1964). Under our holding that the government may proceed by proffer or hearsay, cross-examination for the limited purpose of im......
  • Tate v. United States, No. 19177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 28, 1966
    ...Farley v. United States, 1957, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529. Our opinion in Washington v. Clemmer, 119 U.S.App.D.C. 216, 339 F.2d 715 (1964), related to stenographic recording and transcription of preliminary hearings before the United States We think that the interest of jus......
  • United States v. King, No. 71-1267.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 18, 1973
    ...127 U.S.App.D.C. 10, 11-12 & n. 2, 380 F. 2d 557, 558-559 & n. 2 (1967); Washington v. Clemmer, 119 U.S.App.D.C. 216, 217-218 & n. 2, 339 F.2d 715, 716-717 & n. 2, following remand, 119 U.S.App. D.C. 226, 227, 339 F.2d 725, 726 16 Blue v. United States, 119 U.S.App.D.C. 315, 321, 342 F.2d 8......
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26 cases
  • Coleman v. Burnett, No. 71-1114.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 14, 1973
    ...question whether hearsay was admissible in preliminary hearings remained open with us, see Washington v. Clemmer, 119 U.S.App. D.C. 216, 339 F.2d 715, following remand, 119 U.S.App.D.C. 226, 229, 339 F.2d 725, 728 (1964); Ross v. Sirica, supra note 55, 127 U.S.App.D.C. at 18, 330 F. 2d at 5......
  • United States v. Edwards, No. 80-294.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 8, 1981
    ...interest in protecting the emotional and physical well-being of its witnesses. See Washington v. Clemmer, 119 U.S.App.D.C. 216, 219 n. 11, 339 F.2d 715, 718 n. 11 (1964). Under our holding that the government may proceed by proffer or hearsay, cross-examination for the limited purpose of im......
  • Tate v. United States, No. 19177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 28, 1966
    ...Farley v. United States, 1957, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529. Our opinion in Washington v. Clemmer, 119 U.S.App.D.C. 216, 339 F.2d 715 (1964), related to stenographic recording and transcription of preliminary hearings before the United States We think that the interest of jus......
  • United States v. King, No. 71-1267.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 18, 1973
    ...127 U.S.App.D.C. 10, 11-12 & n. 2, 380 F. 2d 557, 558-559 & n. 2 (1967); Washington v. Clemmer, 119 U.S.App.D.C. 216, 217-218 & n. 2, 339 F.2d 715, 716-717 & n. 2, following remand, 119 U.S.App. D.C. 226, 227, 339 F.2d 725, 726 16 Blue v. United States, 119 U.S.App.D.C. 315, 321, 342 F.2d 8......
  • Request a trial to view additional results

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