The testimony is undisputed that Nathan Reiskin, the proprietor of the drug store at which the robbery was committed, was not present at the time of the crime. His presence as a witness could have served no purpose. The testimony of George F. Green is that he was made to get into a corner when the men who robbed the store came in; that he did not get a good look at them; and that he could not recognize them if he saw them again. Blanche P. Green testified that she came into the store while the robbery was in progress; that a short man put a gun in her side and told her to go to the back of the store; that she did not see the other man; and that she could not recognize the persons who committed the robbery. Clearly there, could be no suppression of evidence on the part of the Government in failing to call either Reiskin, George F. Green or Blanche P. Green. The whole question then comes to whether or not the failure on the part of the Government to call as a witness Vincent Curley amounts to a suppression or concealment of evidence.
Curley's testimony in these proceedings shows that he did have opportunity to observe both man who committed the robbery. After the robbery he was shown several photographs, including that of the petitioner. He did not identify the picture of the petitioner as one of the men. Curley was later taken to Baltimore to view a line-up of men, including the petitioner. He recognized the petitioner as being one of the men whose picture he had seen, but he did not believe that he was one of the men who had committed the robbery, although he could not say definitely that he was not. Mr. Curley's testimony in this connection is fairly well set forth in a written statement made by him on July 9, 1940, which was incorporated in his testimony, and which reads as follows:
"Several weeks later I visited the Baltimore jail, at which time I viewed a line-up of four or five men. At that time a man, later identified to me as James Curtis, was in the line-up. At that time when I viewed the line-up I felt as though the man I later learned was James Curtis, who was in the line-up, was not the taller of the two men who engaged in the hold-up at 87 Florida Avenue, referred to above. I cannot say positively whether he was or was not the taller of the two men. Deep down in my heart I do not believe that it was the man, and I did not believe it at the time, but I had to allow myself a certain leeway for my own weaknesses, as far as remembering is concerned, in my excitement, and therefore I did not want to be positive either way. I feel now that if I saw the taller of the two men that engaged in the robbery that I would recognize him; but until such a time as I would see that man and positively put myself at ease that he was the hold-up man I would not say positively that the one known to me as James Curtis was not the man."
I am not willing to state, if the existence of this witness, known to the prosecution, had been concealed from the petitioner, that he should not have the relief which he here seeks. The case turning so largely, as it necessarily did, upon the question of identification, the fact that a person having the opportunity to observe those committing the crime could not identify the accused is a fact which, if known to the prosecution, should not be concealed from the defense. But I do not believe that it can be said that such fact was concealed in this case. The testimony in the trial of the case showed that Vincent Curley was present at the time and place of the robbery, and that he was not called as a witness, because he could not positively identify the petitioner. Furthermore, the evidence showed conclusively that counsel for the petitioner, at the time of his trial, pursuant to a subpoena issued on behalf of the petitioner, had the record of the "police incidental" which disclosed the name and address of Vincent Curley. There is not here, as there was in the case of Johnson v. United States, 71 App.D.C. 400, 110 F.2d 562, decided February 28, 1940, the situation where counsel appointed by the Court to defendant accused failed to exercise diligence in producing evidence material to the defense. Here the counsel acting for petitioner was of his own choosing, employed by him; and here also was a serious question of judgment to be exercised by such counsel as to whether it would be more to the advantage of the petitioner to require Vincent Curley to testify on behalf of the petitioner -- unable as he was to state positively that the petitioner was not one of the men engaged in the robbery -- or to urge upon the jury -- under instructions of the Court, requested on behalf of the petitioner -- that from the failure of the Government to produce Curley as a witness the inference should be drawn that his testimony would be unfavorable to the prosecution. Counsel chose this latter course, a course he could not have chosen had he, on behalf of petitioner, produced Curley as a witness. If the testimony of Mr. Curley was so dispositive of the matter as to definitely show that the petitioner was not guilty of the crime for which he has been convicted, there would indeed be a strong basis upon which to urge that relief of some character should be afforded to him. As it is, to grant the relief here asked for, in the circumstances here shown, would be placing a premium upon withholding the testimony of a witness whose name had been made available by the prosecution to the defense. I do not find any support in the evidence for the contention that there has been such failure to disclose evidence as amounts to a suppression, or that there has been a denial of any constitutional right of the petitioner which would deprive the Court of jurisdiction to proceed with his trial and impose sentence upon him as a result of his conviction therein.
Other matters were argued at the hearing, but they are so palpably of the kind which cannot be considered in a proceeding of this character that it is not deemed necessary to enter upon a discussion of them.
It is, therefore, ordered that the writ heretofore issued in these proceedings be, and the same is hereby discharged, and the petitioner is hereby remanded to the custody of the respondent.
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