Campbell v. State

Lowe, J., delivered the opinion of the Court. to ete a mous 1 “The sporting theory of justice, the ‘instinct of giving the game fair play’ ”, as Professor Wigmore has put it, “is so rooted in the profession in America that most of us take it for a fundamental legal tenet.” 2 But the will to win, which is ordinarily a commendable attribute, has, because of society’s pressures, too often caused a disproportionate priority to be established in the order of things. Thus, when a prosecutor becomes so obsessed with catching the rats that his concern causes him to “weyveth [the] milk, and flesh” of the law (justice and fair play), either he must reorder his priorities or the judicial system will do it for him. An attorney is neither obliged nor expected to win at all costs, and as pointed out by Doctor Samuel Johnson, he is an ingenious counsel who but makes the most of his cause. When a prosecutor moves beyond that goal he infringes upon the “conveniently vague” due process limitation guaranteed an accused.

It is the Fourteenth Amendment which obliges us to do what is just, not merely refrain from doing what is improper. ⁹¹ Because due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or essentials of fundamental rights, Wolf v. Colorado, 338 U. S. 25, 27 , the questions that appear before us of what is deemed reasonable and right are as abundant as man is innovative. The device used by the prosecutor in this case was effective (at that trial at least), perhaps even innovative. But it was an affront to the Sixth and Fourteenth Amendments. the duty of the prosecutor is to seek justice, not merely to convict 3 Mack Campbell was the driver of an automobile and one of four men arrested after a high speed chase following an armed robbery of the Jiffy Trailer Company. His defense was uncomplicated.

He admitted that one of the other three occupants of the automobile was a friend, and that he had at his friend’s request driven the three to the Jiffy Trailer Company. However, he contended, he had done so because his companions had wanted to rent a truck there. Again at the friend’s request, he agreed to wait until they ascertained whether the company was open for business and, if it was not, to drive them to an alternative source for a truck rental. When the three men returned, they did so in a rush.

One put a gun to appellant’s head and directed him to depart post haste — which he did without hesitation notwithstanding a police car which took up pursuit. His ordeal ended abruptly when his automobile collided with another. The defense of coerced participation obviously rested upon credibility. To bolster appellant’s story, one of the other participants, David Byrd (also known as George Jones, Jr. i, who had not been tried for the robbery in question, had agreed to testify in appellant’s behalf.

Stets had been entered in Byrd’s case at the request of an Assistant State’s Attorney, whose stated reason for the requested stets was that: “Defendant [was] currently serving 20 yr. sentence. R. Hedeman A.S.A.” ⁹² On the day appellant was to be tried by a jury in the Criminal Court of Baltimore, Assistant State’s Attorney William M. Monfried, who was assigned to prosecute him, began his case with an announcement to the court: “Prior to calling the Campbell case for trial, the State at this time will move to reopen stets as to Mr. David Byrd, also known as George Jones, in Indictments 57535046, 49 and 57. Mr. Byrd is present as is his counsel.” This evoked vociferous complaints, not only from appellant, but from Byrd’s attorney as well. Presumably expecting the court to believe that the timing of the opening was coincidental, the prosecutor argued that his reason for opening the stets was totally unrelated to whether Byrd testified: “I could care less if he testifies at all.

The cases are being reopened purely and simply because Mr. Dunnigan [4] indicated to me he felt it was a nonproductive disposition to give any more time for Mr. Byrd. I vehemently disagree with that and I fought this in our office. That is not the situation for the prosecutor to act as a judge and sentencer. If the Court feels it is enough time it will give him a concurrent sentence.

I told Mr. Dunnigan that. I told Mr. Dunnigan I was reopening the trials. If Mr. Byrd says something that is inculpatory, may be used against him or not, I don’t know. The stets are not being reopened because he is a potential defense witness.

They are being reopened because I don’t agree with the State’s Attorney stetting them. I know of no law, judicial decision whatsoever, in the Supreme Court or this state to reopen a stet.” The witness’s attorney, however, pointed out that the ⁹³ prosecutor had previously advised him of the jeopardy in which Mr. Byrd would be placed if he did testify: “I would like to repeat, Mr. Monfried did say to me while he is not making any promises or deals, what my client does in this trial could have an effect on what his intentions will be when the stets are reopened.” This the prosecutor readily acknowledged: “It depends a great deal on what Mr. Byrd testifies to. If Mr. Byrd gets on the stand and says he participated in this, darn right, I’ll go to trial on this.” Appellant’s attorney desperately tried to overcome this sudden impediment to his client’s defense but saw his protestations to the opening of the stets 4A go unheeded. Instead, although it was to have been appellant’s trial set for that hour, he waited while the witness Byrd was arraigned in that courtroom, immediately after which his own case was called.

After the jury had been selected, the State had put on its case-in-chief and the jury was removed from the courtroom, appellant’s counsel again sought to overcome the obstacle confronting his key witness. He renewed his opposition to the opening of the stets and, alternatively, asked the court to grant Byrd immunity. Denied both remedies, he proposed to prove before the jury that the prosecutor’s sole motive in opening the stets was to obstruct appellant’s defense in suppressing a key witness’s testimony by “intimidating, threatening and using the judicial system”. The court would only agree to hear this testimony out of the presence of the jury.

Even that ruling brought the prosecutor to his feet, demanding a right “to defend” himself, which he began to do immediately from the trial table. When the defense attorney requested that he be put under oath the prosecutor told him to “Keep quiet”, and again proceeded to impress upon the ⁹⁴ court, through argument, his version of why Byrd’s stets had been opened. be just before you are generous During the prosecutor’s unsworn address to the court, he again explained that his opening of the stets had nothing to do with whether the witness testified. He argued that any inference of impropriety from the timing was unjustifiable because, in reality, the opening of the Byrd stets immediately prior to the Campbell trial was a manifestation of the State’s generous display of fairness to Mr. Byrd: “I could have had Mr. Byrd walk onto the stand, inculpate himself to the fullest extent. The highest form of self-incrimination, opened up the stets and said now, Mr. Byrd, look what you did, you have yourself under oath confessing to a crime, now I’m going to reopen the stet.

That would have been dirty pool. I was fair and open with Byrd and told him I was reopening the stet whether he testified or not. If he exercises his right under the Fifth Amendment, it is his choice. I want it known to him if he gets on the stand the stets are open and anything he says may be used against him.

His counsel is here. To this day I don’t know whether Mr. Byrd is going to testify. If he chooses to testify, fine. If not, fine.

The stets are open. It has nothing to do with the case of State versus Mack Campbell. The State is not coercing him to take the stand or not. I think any hearing is a waste of the Court’s time.” The court rejected the prosecutor’s plea to deny a hearing out of the jury’s presence, but elected to decide later if the evidence so taken would be admissible before the jury.

The first witness called during the hearing was the attorney for Byrd. He explained how Byrd’s stets had occurred and how he had been called out of another trial by ⁹⁵ Mr. Monfried the day before the Campell case was set to be tried and told that Byrd’s stets would be opened: “. . . I asked Mr. Monfried on what basis he wanted to reopen. He made known to me he wanted to reopen but thought to what his decision will be whether he will try my client will have to do with the way my client testifies or not in this particular matter.

He did not come in and say to me for a certainty he wouldn’t try him. He said he would more or less make a decision later. Mr. Monfried led me to believe, not in the exact words, if he didn’t testify that would have a lot to do with his determination whether or not to follow through with the prosecution. He never came out and said if he testifies I will try him and if he won’t I won’t, but all the inferences were there by way of conversation it might be favorable to Mr. Jones not to testify as to what effect that would have on a decision whether to retry him.” On cross-examination by the prosecutor the attorney made it clear that there was no overt threat, but that the underlying message was unmistakable: “You didn’t promise us anything but the whole conversation, taken in proper prospective, being around the courts, understanding everything, how the system works, it was given me the impression by our conversation if my client did not testify his case, the stets opened would be re-evaluated, meaning to me if he is a good boy, keep his mouth shut, he probably has nothing to worry about.” The second person to testify was the law clerk of Mr. Byrd’s attorney.

He had taken an initial call from the prosecutor and the message he was asked to convey to his boss from Mr. Monfried was somewhat less subtle: “I said ‘What do you want me to tell him?’ He said ⁹⁶ ‘Tell him we are going to reopen the stets and if his client is willing to not take the stand I won’t reopen the stets’. That seemed peculiar to me. I said ‘You better tell him yourself’. I gave him Mr. Sellman’s phone number and that was the end of it.

After that I relayed the message to his