that by admitting to removing a few spikes and stealing tools -- all without knowledge of the wreck and resulting deaths of two people -- he would get less time in prison in Pennsylvania than he would for the unlawful entry charge in South Carolina. The defendant also testified that the information contained in the written statements and in the reenactment was suggested to him by the authorities. This testimony was disputed by the prosecution. In addition, a number of witnesses testified that defendant was in or near Pocomoke City, Maryland -- 170 miles away from the wreck -- around the time in question. This testimony too was disputed by the Commonwealth.
Near the end of the prosecution's case, the Commonwealth introduced the defendant's prior record into evidence under the Parker Rule. The record consisted of a burglary conviction in 1937, a Delaware conviction for obstructing a railroad in 1940, and a 1948 conviction of burglary. Over the objections by defendant's counsel on due process grounds, this evidence was introduced for the ostensible purpose of assisting the jury in determining whether a sentence of life imprisonment or death should be imposed in the event that they found the defendant guilty. This was introduced even though the Assistant District Attorney did not at any stage of the trial press for the death penalty and even though the juror who was accepted as foreman of the jury had stated during the voir dire examination that he would not return the penalty of death. This juror was not challenged by the prosecution. On cross-examination of witnesses for the Commonwealth who testified about defendant's prior record, it was disclosed that the 1937 burglary conviction involved theft of railroad property and that the facts of the 1940 conviction showed a striking similarity to the methods used in the present case.
These circumstances are not related to retry a case which has been before the Pennsylvania Supreme Court nor to reevaluate the weight and credibility of the evidence which the jury resolved against the relator on the issues of alibi and voluntariness of the statements and reenactment. These circumstances, however, are relevant and essential in determining -- under Scoleri and Rucker -- whether the introduction of defendant's prior record of unrelated offenses had an adverse effect upon the verdict of the jury.
In the Rucker case the defendant made a full confession a few hours after his arrest. There was no contention that the confession was coerced or induced by trickery. In addition, the defendant Rucker was arrested a short distance from the scene of the murder with blood stains on his arms and clothing and with the fruits of the crime (robbery) in his possession. Most telling was the absence of any kind of real defense (defendant's defense was habitual drunkenness) in that case. As Judge Hastie stated in Rucker: 'There was neither a significant conflict in the evidence nor a doubtful issue of fact in connection with which the jury's awareness of the defendant's prior conviction * * * could have been prejudicial. Indeed, a reading of the record makes it very clear that the only real question was whether death or a lesser penalty should be imposed as punishment for the felony-murder.' (311 F.2d at 314.)
Here, the contrary is true. There were significant conflicts of evidence on the two major issues which would have exculpated the defendant (alibi and 'involuntary' confession). Indeed, the jury could have easily found, under the charge of the trial judge, that the six-day period during which the defendant was held prior to arraignment invalidated the statements obtained in this period. Furthermore, Johnson was not found shortly afterwards near the scene of the crime, as in Rucker, with the fruits of the crime in his possession. And finally, unlike Rucker where '* * * the only real question was whether death or a lesser penalty should be imposed,'
here the crucial question was that of guilt or innocence. Both former Chief Justice Jones and Mr. Justic Cohen of the Pennsylvania Supreme Court were shocked by the unfairness of the Johnson conviction. Mr. Justice Cohen dissenting in 411 Pa. 497, 192 A.2d 381 (1963) stated:
An examination of the entire record discloses that the prosecution had a very flimsy case against the defendant. As former Chief Justice Charles Alvin Jones so aptly stated in his concurring opinion to the first Johnson case, 'the books will be searched in vain for a more startling example of a synthetically constructed case of murder against a suspect.' * * * I agree. It is abundantly clear that the prosecution would never have secured a conviction without the introduction in evidence of defendant's prior convictions.
This is not a case which falls somewhere between Scoleri and Rucker. The facts of the instant case cry even louder for a new trial than those which impelled the Court of Appeals to grant a new trial in Scoleri. In Scoleri, the prosecution produced an identification witness who pointed out Scoleri. No direct or indirect evidence of identification was presented here. Even more essential is the precise nature of Johnson's prior conviction and its probable effect upon the jury. The intentional wrecking of a train occurs very rarely. In its opinion denying a new trial, the trial court stated that there were perhaps only three known train wreckers in the United States.
It is not unlikely that the jurors took the charge involving the similar factual circumstances of pulling spikes from a railroad as more than mere coincidence on the question of Johnson's guilt -- even though the prior conviction was, of course, not legally relevant to that issue. In speaking of the ability of jurors to put the knowledge of a defendant's prior unrelated convictions out of mind in considering his guilt or innocence, Chief Judge Biggs in Scoleri said:
Certainly such a feat of psychological wizardry verges on the impossible even for berobed judges. It is not reasonable to suppose that it could have been accomplished by twelve laymen brought together as a jury. (310 F.2d at 725.)
I fear that knowledge of this prior conviction for obstruction of a railroad had, at a minimum, a significant effect upon the jury in weighing the legitimate evidence on the question of guilt or innocence.
As the Supreme Court has said through Mr. Justice Jackson, when noting the necessity for certain exclusionary rules of evidence Such evidence could
* * * weigh too much with the jury and to so over-persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. Michaelson v. United States, 335 U.S. 469, 476, 69 S. Ct. 213, 218, 93 L. Ed. 168 (1948). (Emphasis added.)
While the trial judge was scrupulously fair in his instructions as to the legal relevance of the prior convictions, I must nevertheless conclude that, as Judge Learned Hand has observed, such instructions are a '* * * recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody's else.' See Nash v. United States, 54 F.2d 1006, 1007 (2nd Cir. 1932), cert. denied 285 U.S. 556, 52 S. Ct. 457, 76 L. Ed. 945 (1932).
At oral argument counsel for the Commonwealth sought the distinguish Scoleri on the ground that Scoleri had received the death penalty whereas Johnson was sentenced to life imprisonment. I cannot accept this distinction. The grave unfairness of Johnson's trial is in no way lessened by the fact that he 'only' received a life sentence. And though I am well aware of the distinction once made between capital and noncapital cases in Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), the current trend of United States Supreme Court decisions leads me to conclude that the determination of an alleged infringement of a constitutional right would not be contingent upon whether the jury had given the death penalty or life imprisonment.
I therefore grant the petition for habeas corpus since the introduction of Johnson's prior criminal record for obstructing a railroad was so fundamentally unfair as to deny him due process of law.
Of course the granting of this writ does not mean that Johnson will automatically go free. The Commonwealth has the right to arraign him again on the indictments in issue after providing him with counsel.
The annals of Pennsylvania criminal cases have few files which equal the conscientious and diligent efforts given by the instant court appointed counsel, H. Lester Haws, in behalf of a pauper. The Court must take official notice of the extraordinary efforts of Attorney H. Lester Haws and his associates for more than 15 years. These efforts included the expenditure of hundreds of hours and counsel's personal funds in the investigation, defense and appeals in this case.