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December 21, 1959

UNITED STATES of America, Plaintiff,
Daniel SMITH, Jr., Defendant

The opinion of the court was delivered by: HOLTZOFF

This is a motion for a new trial on the ground of newly discovered evidence. The questions raised by the motion are of such a nature as to require a review of the history of the case, of the issues involved and of the evidence, in order to make it possible to determine the relation of the alleged newly discovered evidence to the other aspects of the case.

The defendant was indicted on a charge of murder in the first degree. The specific charge was that he beat his wife to death by means of striking her about the head and body with a blunt instrument. The contention of the Government at the trial was that he beat her over the head with two flatirons and an iron pipe, causing a hemorrhage from which she died. At the trial the defendant was represented by an experienced trial lawyer who specialized in the trial of criminal cases. The defense was conducted energetically, intelligently and with well directed zeal.

 The trial consumed almost three days and resulted on January 18, 1956, in a verdict of guilty of murder in the second degree. On February 10, 1956, the defendant was sentenced to imprisonment for a term of not less than ten and not more than thirty years. Subsequently, the defendant, in propria persona in view of the fact that apparently trial counsel felt that he should not pursue the matter any further, applied for leave to appeal in forma pauperis. This Court denied the application. The Court of Appeals for the District of Columbia Circuit later denied a similar application. The matter, however, was taken to the Supreme Court and on January 12, 1959, 358 U.S. 281, 79 S. Ct. 322, 3 L. Ed. 2d 299, the Supreme Court vacated the order of the Court of Appeals denying leave to appeal and directed that leave to appeal in forma pauperis be granted.

 The defendant then applied to this Court for the appointment of counsel. In view of the importance of the matter, the Court appointed a well known, experienced trial lawyer, Mr. Paul R. Connolly, to act as counsel for defendant. The Court appreciates the public service that Mr. Connolly has rendered in this matter and wishes to express its gratitude to him. In connection with his activities in the appellate proceedings, Mr. Connolly determined that a motion for a new trial on the ground of newly discovered evidence should be made. This motion was recently filed and has now been argued before this Court.

 At the outset the question arises whether this motion was filed in due time. Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., prescribes a limitation of two years 'after final judgment' for the filing of a motion for a new trial on the ground of newly discovered evidence. Final judgment of this Court was rendered, as stated above, on February 10, 1956. Consequently, a much longer period than two years has expired since the rendition of the final judgment of this Court. It is argued, however, by counsel for the defendant that the words 'final judgment' as used in the rule are not limited to the final judgment of the trial court but may also include the final judgment of an appellate court. In this case, of course, no final judgment has as yet been rendered by any appellate court. It is the understanding of this Court that proceedings on the appeal have been stayed by the Court of Appeals during the pendency of this motion. It is, therefore, contended by counsel that actually the two-year period has not begun to run. Some support is found for the contention of defense counsel in a dictum contained in Harrison v. United States, 191 F.2d 874, 876, a case decided by the Court of Appeals for the Fifth Circuit. Assuming, without deciding, that this motion was timely filed, the Court will determine it on its merits. In view of the importance of the issues involved the Court is of the opinion that it would not be in the interest of substantial justice to dispose of such a motion as this on what, after all, would be a technical ground.

 The newly discovered evidence consists of affidavits made by five eminent neurosurgeons in this city, which contradict the medical opinion expressed by the deputy coroner at the trial, the deputy coroner, himself, being a physician of long experience and many years' standing. At this point the Court wishes to observe that the affidavits of these neurosurgeons were not made on any partisan basis. They were not prepared for compensation but were made as a matter of public service at the request of defense counsel, who, himself, is rendering a public service. For this reason the Court feels indebted to these neurosurgeons for their public spirited contribution to the administration of justice.

 If there has been a miscarriage of justice, it should be rectified irrespective of any technical obstacles, and that is the usual view of this Court where substantial rights are involved. At the same time it must be borne in mind that the granting of a new trial is a very serious matter. The longer the time that has elapsed since the trial has taken place, the more serious the matter becomes. Granting a new trial does not merely mean recalling the witnesses and having them give the same testimony all over again, plus the addition of new evidence. It is not as simple as that. Here more than three years have expired since the trial. During the intervening period, witnesses may have disappeared or some of them may have died, while the memory of others may have faded to a considerable extent so that they can not recall certain details, and their testimony would be very much weakened. Consequently, it may be difficult to secure a conviction at a second trial if a long interval of time elapses between the first and second trial.

 The public interest must always be borne in mind. The best guide that this Court finds in this respect is an expression of Mr. Justice Cardozo in Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, at page 122, 54 S. Ct. 330, at page 338, 78 L. Ed. 674, where that great jurist stated:

 '* * * justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.'

 Another great jurist, Judge Learned Hand, in the case of United States v. Garsson, D.C., 291 F. 646, 649, stated:

 'Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least * * * doubt in the minds of any one of the twelve.'

 And again he resumes, in the same opinion:

 'Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment ...

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