trial. The victim was released unharmed and the possibility of a death sentence never entered the case.
Defendant Morris had expert professional help both at the time of his arraignment and at the time of his trial. After filing his self-written petition, he again has had the highest quality of professional help and assistance in the person of Mr. Kossman. Mr. Morris deliberately chose, despite the opportunity offered by both his counsel and the Court and after a Court recess to permit him to confer with his attorney, not to take the stand and refute, if he could, the testimony of Mr. Pollock. The Court, therefore, can only conclude that Mr. Pollock's testimony gave true details of his representation in every minute detail. Mr. Pollock had a complete file of the Defender's representation and was able to answer any question from progress notes made during that representation. His testimony at the hearing demonstrated the complete competence of his representation of defendant Morris at the trial. The only difficulty with Morris is that he shot Patrolman McCaffrey; stole his gun; kidnapped McLane and forced him at gun point to drive him to Maryland where he kept him in captivity. The jury found defendant Morris guilty after a full and fair trial.
However, Mr. Kossman now raises a most interesting question. He advances the legal contention, under the decision of the United States Supreme Court in Smith v. U.S., 360 U.S. 1, 79 S. Ct. 991, 3 L. Ed. 2d 1041, decided June 8, 1959, that despite all the foregoing his court-appointed client Morris is still entitled to a new trial on the grounds that Morris did not have the full protection of the law provided by United States statutes; that Morris did not have the advantage of twenty strikes, and that the record failed to show that the defendant had been supplied with a list of veniremen and Government witnesses three days in advance of the trial.
Does the failure of the United States to furnish defendant with a list of veniremen and Government witnesses three days prior to trial, Title 18 U.S.C. § 3432, and the further failure of the defense counsel to request and exercise twenty rather than only ten peremptory challenges, Federal Rules of Criminal Procedure, Rule 24(b), 18 U.S.C., in a criminal trial based on Title 18 U.S.C. § 1201, (known as the Federal Kidnapping Act), constitute grounds for a new trial where defense counsel (1) never objected to the impaneling of the jury, (2) to the Government's calling of any witness, or (3) to request twenty challenges, where the defendant in all other respects appears to have been given a fair and impartial trial?
The question of whether a defendant is entitled to these rights when prosecuted under an indictment based upon the Federal Kidnapping Act, where no harm was alleged to have resulted to the victim, was settled in the negative in this circuit by the case of United States v. Parker, 3 Cir., 1939, 103 F.2d 857; see also Brown v. Johnston, 9 Cir., 126 F.2d 727. In that case, Judge Maris stated that such a prosecution was not a 'capital case' entitling the defendant to those special rights granted by 18 U.S.C. § 3432. The Supreme Court thereafter denied certiorari in that case. In the recent case of Smith v. United States, 1959, 360 U.S. 1, 79 S. Ct. 991, 3 L. Ed. 2d 1041, the Supreme Court rejected this view by clear dictum, although the specific holding of the Smith case is that any prosecution under the Federal Kidnapping Act must proceed by indictment and not information regardless of whether or not there is an allegation of harm to the victim. The Court based this conclusion on the Fifth Amendment and Rule 7(b) of the Federal Rules of Criminal Procedure but broadened its holding by stating that for all purposes a suit under this Act must proceed as a capital case from the outset. In this regard, they specifically referred to the right of a defendant to a list of veniremen and Government witnesses three days prior to trial, Title 18 U.S.C. § 3432, and twenty peremptory challenges, Rule 24(b).
The question of what effect such dictum will have upon those convictions which occurred between the Parker case and the Smith case, in which one or more procedural rights specifically granted to an accused in a capital case have been expressly denied to a defendant happily need not be answered here. In our case the defendant never asserted a claim to these rights. Unlike the right to an indictment which the Court in the Smith case held could not be waived, there is clear Supreme Court authority to the contrary with regard to those rights granted by Title 18 U.S.C. § 3432. Hickory v. United States, 1893, 151 U.S. 303, 14 S. Ct. 334, 38 L. Ed. 170; Gordon v. United States, 1953, 53 App.D.C. 154, 289 F. 552; Aldridge v. United States, 1931, 60 App.D.C. 45, 47 F.2d 407, reversed on other grounds 283 U.S. 308, 51 S. Ct. 470, 75 L. Ed. 1054. See also Logan v. United States, 1891, 144 U.S. 263, 12 S. Ct. 617, 36 L. Ed. 429. (Both the Hickory and Logan cases dealt with what was formerly Section 3432, the language of each being almost identical.) By failing to object to any of the Government witnesses or to the impaneling of the jury, defendant cannot now object, particularly where hindsight has disclosed neither surprise to the defendant nor prejudice on the part of any juryman, the major reason for each of these procedural safeguards.
The same result must follow with regard to the ten extra peremptory challenges. Regardless of what defense counsel later may explain is the reason for his failure to exercise more than ten challenges, the record merely shows his failure to do so. This is explainable in one of three ways: (1) Counsel was in error as to the law in this matter (i.e., believing that this was not a 'capital case' for the purpose of Rule 24(b)); (2) counsel inadvertently failed to recognize the facts as calling for such a right; or (3) felt it tactically more wise to exercise only that number of challenges. The third reason is certainly not grounds for a new trial since the law obviously does not purport to make the exercise of a certain number of challenges mandatory. The first and second reason alike do not constitute grounds for a new trial. It would be illogical to grant a new trial for every error defense counsel makes in the conduct of a trial, unless that error is likely to result in substantial harm to the defense or renders the defense of the accused a mockery of justice and fair play. On the contrary, to grant a new trial in this case, where the evidence is overwhelmingly in favor of defendant's guilt and the record indicates complete fairness to the defendant, would be a mockery of that justice and fair play to which the victims of this man's wrongdoing as well as the people of the United States are entitled.
Defendant's motion is hereby denied.
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