fully discussed in two opinions; it need not be repeated here.
To supplement that testimony and to proceed in accordance with the suggestion contained in the opinion of the Court of Appeals, another hearing was held April 7, 1952. Former counsel again testified, this time somewhat more positively than he had at the prior hearing. He said that the Assistant United States Attorney had advised him that upon a change of plea no prison sentence would be imposed, only a fine, and 'that is what I told Mr. Shneer, and I advised him on the basis of that assurance that I received from Mr. Fox (the Assistant United States Attorney), to change the plea because I thought that it was the practical thing to do. I even believe I said to him that I felt I would rather do that than take a chance with a jury, even though I am innocent.' Former counsel testified that he knew that the Court could not be bound by any 'assurance' given him by the Assistant United States Attorney.
In my former opinion I discussed fully the legal effect of what took place between the Assistant United States Attorney and defendant's former counsel and absolved the government counsel of any improper action. I do not wish to change any of my findings and conclusions relative to the proceedings between the Assistant United States Attorney and defendant's former counsel. Irrespective of what transpired in the conference of these two attorneys, a separate and distinct issue presents itself.
The major issue presented in this last hearing is whether, under the law of this case as laid down by the Court of Appeals, defendant was misled and changed his plea from not guilty to nolo contendere in reasonable reliance upon misrepresented information from his lawyer that he would not be sentenced to jail.
Defendant testified that he changed his plea solely on his former counsel's guarantee that he would not go to jail, and that he was willing to bear the stigma of a nolo contendere plea in order to give his family relief from the rigors of a court trial, since they were already burdened with death and illness in the family.
The testimony of defendant's former counsel and of a lawyer friend corroborated him. Defendant's former counsel and his friend were both members of the bar who knew that this or any other court could not and would not be bound by any such assurance or guarantee. Regardless of this, I cannot avoid the conclusion that defendant changed his plea in reliance upon the improvident assurance he would not go to jail except by discrediting the testimony not only of defendant but also of two reputable attorneys.
In view of the entire record and the circumspect caution so restrainedly yet so eloquently and artistically delineated in the admirable opinion of the Court of Appeals for our guidance, it might well be that a denial of the present motion might fail to correct a manifest injustice.
Granting the motion does not grant an acquittal. It will grant defendant an opportunity to be tried by a jury of his peers who will determine his guilt or innocence.
In the interest of justice, defendant Morris Shneer's motion to set aside the judgment of his conviction and to withdraw his plea of nolo contendere will be granted.
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