Wiman v. Powell
Decision Date | 06 September 1961 |
Docket Number | No. 18987.,18987. |
Citation | 293 F.2d 605 |
Parties | Martin J. WIMAN, Warden, Kilby Prison et al., Appellants, v. William K. POWELL, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
MacDonald Gallion, Atty. Gen., James W. Webb and George D. Mentz, Asst. Attys. Gen., for appellants.
Euel A. Screws, Jr., Montgomery, Ala., R. Clifford Fulford, Birmingham, Ala., for appellee.
Before HUTCHESON, RIVES and WISDOM, Circuit Judges.
Upon former appeal we had said: "From the present record, without more, it would appear that Powell's discharge will best serve the ends of justice." Powell v. Wiman, 5 Cir., 1961, 287 F.2d 275, 282. The cause was remanded to accord the State an opportunity for further hearing to prove that it had not in fact suppressed vital evidence upon Powell's trial. At the conclusion of that hearing, the district court found:
The district court accordingly ordered Powell discharged from custody of the warden and "of any other officers, employees, or agents of the State of Alabama, which custody is pursuant to the conviction and judgment of the Circuit Court of Jefferson County, Alabama, which occurred and which was pronounced in January, 1956." The district court declined to order that Powell not be rearrested and not be reprosecuted.
Subsequently, Powell's court-appointed counsel filed a motion showing that as soon as Powell was discharged from the warden's custody he "was re-arrested by officials of the State of Alabama under the same indictment upon which his conviction and judgment of the Circuit Court of Jefferson County, Alabama, of January, 1956, was based."1 Powell's attorneys moved the district court to issue an order to certain enumerated officials of the State of Alabama directing them to show cause why they should not be adjudged in contempt of court, or, in the alternative, "for an Order amending its Order of April 28, 1961 to make specific that Petitioner should not be rearrested and retried by any official of the State of Alabama for the same alleged offense upon which his January, 1956 sentence and conviction was based and upon which he has served in Kilby Prison, Montgomery, Alabama, a substantial portion of an unconstitutional ten year sentence."
The district court declined either to issue a show cause order or to amend its order discharging Powell from custody pursuant to the judgment of conviction. Respondents appeal from the judgment discharging Powell from custody under his sentence of imprisonment, and Powell cross-appeals from that part of said judgment declining to order that he not be rearrested and not be reprosecuted, and from the subsequent denial of his motion to show cause or to amend the order providing for his discharge.
To the credit of present counsel for the appellants, it should be said that they voluntarily disclosed the report rendered by Dr. Frank Kay, quoted in the district court's findings. That report was not before this Court on the former appeal. Counsel are to be commended for such candor.
The State prosecutor testified that he was aware that Powell could not have been convicted without Hatt's testimony, and that Hatt's mental competency was vital to the credibility of his testimony. In the face of such knowledge, the State prosecutor had declined the request of Powell's attorneys to see Dr. Kay's report with the statement that it would not show that Hatt was insane. While Dr. Kay's report did not declare Hatt insane, it went a long way in that direction. It appears to us that the State prosecutor's statement, when coupled with his refusal of permission to see the report and his active and successful opposition to the introduction of any evidence of Hatt's mental condition, was so misleading as to amount to another instance of suppression of evidence.
The appellants complain that the district court failed to take into consideration that part of this Court's opinion on former appeal which said:
"Whether or not any one of the instances which we have recited in which the State failed to disclose or suppressed evidence going to Hatt\'s credibility would suffice by itself, the totality of all of them, under the circumstances of this case, leaves no doubt that Powell\'s trial was attended by such fundamental unfairness as to amount to a denial of due process of law."
Powell v. Wiman, supra, 287 F.2d at page 281.
The district court did, however, specifically find that Hatt's written statement2 in the possession of the State prosecuting officers, but not available to Powell's attorneys, conflicted with Hatt's testimony as a witness for the State, and called attention to our finding on former appeal that the prosecuting officer for the State "actually bolstered...
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