'Q What is his name?
'A I don't know.
'Q What does he look like?
'A He is a heavy-set dark-skinned Negro.
'Q Approximate weight?
'A Approximately five foot ten, I'd say 200, 215 pounds.
'Q He is the only one you inquired of?
'A That's correct.'
Candor compels us to note that Agent Cockerille seems to have experienced little difficulty in locating Flores when he needed his services as a 'special employee' a year earlier.
We were advised that there was a pretrial meeting among Government counsel and witnesses in this case on April 9, 1963, at which Flores was not present. Cockerille testified that he spoke to Flores over the telephone several days before the meeting, and that Flores then stated he was still employed 'at the bar'. He admitted that, although he knew that Flores might be needed as a witness at the forthcoming trial, he made no inquiry concerning Flores' residence.
We need not recount other lastminute and futile efforts, by both the Government and the defense, to locate Flores and bring him into Court. It suffices to say that, in the circumstances of the case, we think the Government should have made an earlier and more painstaking effort to produce this important witness at the trial. The Government which prosecutes an accused has the duty as well to see that justice is done. Jencks v. United States, 353 U.S. 657, 671, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957).
The missing Flores was, in our view, a key figure in this prosecution, and it was the Government's duty to expend every reasonable effort to produce him at trial. His absence, without satisfactory explanation, makes necessary the grant of a new trial. 'All competent evidence tending toward ascertainment of the truth should be produced and the court must take such action as will tend to bring before it such evidence.' 23 C.J.S. Criminal Law § 1028, p. 1118.
The nature and importance of the case will brook no unnecessary delay, and we shall therefore order it to be called for trial on September 9, 1962, with directions to the Government forthwith to issue and serve its process for Flores' appearance at the trial.
Now, August 1st, 1963, it is ordered that:
1. Defendants' motions for judgment of acquittal be, and they are, denied.
2. Defndants' motions for a new trial be, and they are, granted.
3. This case is ordered down for trial on September 9, 1963, at 10 A.M.
4. The Government shall forthwith issue and make reasonable efforts to serve necessary process for the appearance of Joseph Flores at the trial.
© 1992-2004 VersusLaw Inc.