The opinion of the court was delivered by: CLARY
This matter is before the Court upon the motion of petitioner, Farris E. Morris, to vacate the sentence imposed upon him by this Court on the 29th day of September, 1954, under the provisions of Title 28 U.S.C. § 2255.
Petitioner contends: (1) that he was never advised by the Court that he was entitled to two attorneys to make his defense as prescribed by Section 3005 of Title 18 United States Code; (2) that he had not been advised that he was entitled to separate counsel from his co-defendant who was also charged with a capital crime; (3) that his counsel refused to call certain witnesses who were vital to his defense which denied him an opportunity to make his full defense; (4) that his counsel informed him that he would not call the two defense witnesses because their testimony might interfere with the defense of his co-defendant John Lorenz; (5) that he was denied the testimony of James Wyman who would have testified favorably that the victim of the kidnapping never protested; (6) that he was denied the testimony of a man from whom the alleged victim rented a boat and that victim was not restrained; (7) that the refusal to call the witnesses set forth in paragraphs 5 and 6 was on the ground that their testimony would not be consistent with the defense of his co-defendant John Lorenz; (8) that he was told by his counsel not to make a scene in the court-room by bringing to the Court's attention the denial of his witnesses for his defense as he was on trial for his life and such a protest would be weighed against him, and that he might even get the electric chair if he antagonized the Judge.
Because of the seriousness of these allegations, the Court appointed Jacob Kossman, Esquire, of the Philadelphia Bar, to represent petitioner Morris, without fee, and ordered that the petitioner be brought from Alcatraz, where he was incarcerated, to this District for the purpose of a hearing on the motion. The Court also ordered transcribed all of the proceedings ever had in this Court with respect to the defendant and ordered a copy to be furnished to the petitioner through his counsel.
Petitioner was brought to this District early in August of 1959 and had the opportunity for full consultations with his counsel. A hearing on petitioner's motion was held in this Court on October 13, 1959, at which the petitioner was present with his counsel, and a transcribed copy of said hearing has been furnished to the petitioner.
The chronology of the case in this Court is as follows: A true bill of indictment in four Counts was returned to this Court on August 31, 1954, against defendant Farris Egbert Morris, alias Buck Wilkins, and his co-defendant, John Lorenz, alias Jack John Thomas, Criminal No. 17937, charging: Transportation in interstate commerce of a person abducted or unlawfully detained; transporting stolen motor vehicle in interstate commerce; transporting stolen firearm in interstate commerce knowing same to have been stolen, etc., Count I in violation of Title 18 U.S.C. § 1201; Count II in violation of Title 18 U.S.C. § 2312; Count III in violation of Title 15 U.S.C.A. § 902(g); and Count IV in violation of Title 15 U.S.C.A. § 902(e).
Upon arrest and return to this District both defendants requested the services of the Voluntary Defender of Philadelphia. Both defendants were interviewed by representatives of the Voluntary Defender's Office and the case was called for arraignment on July 21, 1954. At that time Edmund E. DePaul, Esquire, Assistant Voluntary Defender, appeared representing both defendants. Mr. DePaul stated to Honorable John W. Lord, Jr., the Judge then presiding, that there appeared at that point to be a serious conflict in interest between the two defendants and that the Defender's Office would represent Mr. Morris, but that in his opinion it would be necessary that the Court appoint an attorney to represent Mr. Lorenz. In order to keep the chronology straight it is necessary at this point to interpolate information secured at the hearing of October 13, 1959. On the same day as the arraignment, July 21, 1954, the Defender's Office determined that there was no conflict in interest between the two defendants; that each defendant had the identical defense; that it was a joint defense, and thereafter on September 7, 1954, when the two defendants, Morris and Lorenz, were brought before Judge George A. Welsh for arraignment, the Defender's Office, through John F. Hassett, Esquire, appeared and each defendant pleaded not guilty. Between that date and the date of trial, again referring to testimony introduced at the hearing of October 13, 1959, the Voluntary Defender consulted at various times with the two defendants and learned that there were two men, names unknown, who would be able to testify for the defendants that the victim while in Maryland did not complain to these two witnesses, although he had an opportunity to do so, and did not attempt to escape. Upon receiving this information the Voluntary Defender consulted with the Assistant United States Attorney in charge of the prosecution and learned from the office of the United States Attorney that the victim would testify in accordance with the proposed facts and those facts would not be in controversy. Upon this assurance the Voluntary Defender determined that it would not be necessary for a proper defense to further search for these witnesses since their testimony would be merely cumulative. The case went to trial before the Court and a jury on September 20 and 21, 1954, and the jury returned a verdict of guilty on all four Counts against both defendants, Morris and Lorenz. The date for sentence was scheduled for September 29, 1954, on which date sentence upon defendant Lorenz was postponed, it having been determined in the meantime that Lorenz instead of being 19 years old, as he had told the arresting Officer, was only 16 years of age and, therefore, had to be treated as a juvenile. The Court on the 29th day of September, 1954, imposed sentence upon defendant Farris Egbert Morris alias Buck Wilkins for a period totalling 25 years imprisonment.
In capsule form, an outline of the crimes for which the said defendants were indicted is as follows: A Police Officer of the City of Philadelphia, on June 23, 1954, detected Morris and Lorenz attempting to steal a car. When the officer approached them Morris put a gun in his back and directed Lorenz to seize the officer's gun, which Lorenz did. Fearful of his life the officer refused to obey Morris' direction to accompany him and when he attempted to escape was shot in the back. Morris and Lorenz thereafter commandeered a taxicab and forced the taxicab driver, one Joseph A. McLane, to drive them in the cab to Maryland, where he was kept captive, although unharmed. Eventually all three were apprehended in Maryland and McLane was released. Fortunately, the Police Officer recovered and was able to testify at the trial of the case.
With respect to allegation Number 1 in the petition that the defendant was not advised by the Court (Judge Lord) that he was entitled to two attorneys to make his defense under Section 3005 of Title 18 United States Code, the allegation is completely without merit. Morris selected the Voluntary Defender himself. Assignment of the Voluntary Defender was not made by the Court and no request was ever made by Morris to assign counsel to him. For all purposes, Herman I. Pollock, Esquire, Voluntary Defender, was his private attorney, even though he did serve without fee. There was no violation of any of defendant's rights, as he now claims, and there was no duty upon the Court to inform him that he was entitled to counsel under the provisions of Title 18 U.S.C. § 3005.
Allegation Number 2 is likewise without merit. The Voluntary Defender hesitated to defend both defendants until he was absolutely certain that there was no conflict in interest between the two defendants, Morris and Lorenz. In so doing he upheld the highest traditions of the profession.
With respect to allegation Number 3, what has been said above destroys this contention. The Voluntary Defender properly did not attempt to call witnesses on a noncontroverted fact. The victim McLane testified fully and freely that he kept the happiest mien of any person in the small town of Bristol, Maryland, because he was in desperate fear of his life and was terrified that the slightest misstep on his part would result in instant liquidation.
As to the Fourth allegation advanced, the statement therein made is a falsehood. Mr. Pollock denied under oath making the assertion set forth. Although Morris had every opportunity at the hearing to deny the truth of Mr. Pollock's assertion, he refused to take the stand and deny it.
The Court characterizes allegations Numbers 5, 6 and 7 in the same fashion as it characterizes allegation Number 4, i.e., complete untruths. Mr. Pollock never refused to call the Maryland witnesses on the ground that their testimony would not be consistent with the defense of Lorenz.
Finally, the Court finds allegation Number 8 to be untrue. Mr. Pollock never cautioned Morris not to make a scene in the courtroom with respect to the failure to call witnesses, and he most certainly never stated he might get the electric chair if he antagonized the Judge.
The case was tried on the theory that it was a noncapital case. That fact was thoroughly understood between the United States Attorney and the Voluntary Defender before the case even went to trial. The victim was released unharmed and ...