author: AINSWORTH, Circuit Judge:

text:
    Drewey AARON, Jr., Petitioner-Appellant, v. Walter CAPPS, Warden, Draper Prison, Elmore, Alabama, Respondent-Appellee.
    No. 74-2526.
    United States Court of Appeals, Fifth Circuit.
    Feb. 3, 1975.
    Rehearing and Rehearing En Banc Denied April 2, 1975.
    Howard A. Mandell, Charles S. Conley, Montgomery, Ala., for petitioner-appellant.
    William J. Baxley, Atty. Gen., David W. Clark, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
    Before BELL, AINSWORTH and RO-NEY, Circuit Judges.
   AINSWORTH, Circuit Judge:

Drewey Aaron, a black man, was convicted in 1960 in an Alabama state court for the forcible rape of a white woman. His petition for a writ of habeas corpus herein alleges that he was charged and convicted by grand and petit juries which were unconstitutionally selected, and that he was denied a public trial. District Judge Frank Johnson denied Aaron’s application, finding that the failure to assert these issues in the state trial proceedings was a deliberate bypass of state remedies which precluded raising such issues by way of collateral attack. We affirm the denial of the writ for basically the same reasons set forth in Judge Johnson’s well-reasoned opinion appended hereto. However, we add some additional comments on each issue.

I. Waiver of right to challenge the composition of grand and petit juries.

In the deposition of Aaron’s trial attorney, Solomon S. Seay, he stated that he knew that Alabama law at the time required a challenge to the composition of the jury roll, and that he recognized that failure to enter such a challenge constituted a waiver of that right. Moreover, he stated that the possibility of making such a challenge was discussed with his co-counsel, J. L. Chestnut, Jr., before a decision not to contest the jury composition was made. Seay Deposition at 14 — 15. While this would seem to be an “intentional relinquishment or abandonment of a known right or privilege” in the classic sense, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), appellant contends that no genuine waiver of the right to challenge the jury composition occurred. This assertion is based on a series of cases from this circuit which have found exceptional circumstances justifying failure to challenge jury composition where challenges of racial discrimination in jury selection might engender hostility to the defendants or create community hostility toward white attorneys such as would jeopardize their professional standing. See United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71, 82, cert. denied, 361 U.S. 850, 80 S.Ct. 109, 4 L.Ed.2d 89; Whitus v. Balkcom, 5 Cir., 1964, 333 F.2d 496, 498-499, cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343; Winters v. Cook, 5 Cir., 1973, 489 F.2d 174 (en banc); Wells v. Wainwright, 5 Cir., 1973, 488 F.2d 522, 525. District Judge Johnson, however, specifically found that Aaron’s attorneys were not faced with a “grisly choice” that would trigger application of the Whitus exception to the deliberate bypass rule. In support of that conclusion, we add the following:

1. The dictum in Goldsby that white attorneys in the Deep South often sacrificed their black clients’ rights to be tried by a constitutionally selected jury out of fear of community opprobrium or social ostracism has been discredited by the en banc decision in Winters. See 489 F.2d at 178 — 179. But the assumption, even if viable, would have no validity in this case as Aaron’s retained attorneys were black, and not likely to be scorned in their community for doing all possible to insure a fair trial for a fellow black.

2. Attorney Seay stated one of the reasons the jury selection procedure was not challenged was because the Circuit Judges in Montgomery County were members of the county’s Jury Supervisors, and he was unwilling to call the integrity of the judges into question by asserting racial discrimination on the part of those entrusted with drawing up the jury rolls. But the state trial judge, Eugene W. Carter, Jr., specifically asked Seay, prior to Aaron’s first trial, whether he intended to challenge the jury. Judge Carter stated he did so because he recognized that he would be obligated to recuse himself from the case should such a challenge be entered, because of his membership on the jury board. See 155 So.2d at 335. We note that a challenge to the composition of the jury in Montgomery County was timely entered in Reeves v. State, 264 Ala. 476, 88 So.2d 561 (1956), cert. granted, 352 U.S. 965, 77 S.Ct. 373, 1 L.Ed.2d 321, cert. dismissed, 355 U.S. 368, 78 S.Ct. 363, 2 L.Ed.2d 352 (1958), also a case involving rape of a white woman by a black, and Judge Eugene Carter — the trial judge in Aaron’s case — did in fact recuse himself. Thus, we do not find these allegations of suspected judicial hostility well taken.

3. While Seay did state that one of the important factors which induced him not to enter a challenge to the jury was a fear of engendering community hostility that would only create the danger of his client’s being tried by an antagonistic jury, he also stated, “I thought I had a shot at the case,” i. e., that the defendant might be acquitted. Seay Deposition at 16. Thus, tactical considerations were a part of the decision not to challenge the jury selection procedures.

4. While appellant would portray his attorney as being disinclined to challenge the jury composition out of fear either that his future career would be jeopardized or that his client would be prejudiced, two factors (in addition to those discussed by Judge Johnson) prompt us to conclude otherwise. First, in 1961, only a year after Aaron’s second trial, attorney Seay did in fact challenge the composition of the jury in a case involving a black client. See 155 So.2d at 336. Second, as appellant’s present attorney stated to the court below, Mr. Seay “has for the past decade successfully litigated numerous controversial civil rights cases.” Under these circumstances, we accept and affirm Judge Johnson’s determination that Aaron’s attorneys were not in fact presented with a “grisly” or Hobson’s choice which precluded them from knowingly and intelligently waiving the client’s right to challenge the jury selection procedures in Montgomery County, Alabama.

II. Waiver of right to a public trial.

Prior to the start of the second trial, the trial court, acting pursuant to Article VI, Section 169, Alabama Constitution of 1901, ruled that certain persons be excluded from the trial. The prosecu-trix’ relatives, the defendant’s relatives, all those necessary to the conduct of the trial, other attorneys, defendant’s clergyman and the press were allowed in the courtroom; other members of the public were barred. Despite the exclusions, Aaron’s attorney stated: “I would say there were quite a few people there. I would say that three-fourths of the courtroom was full.” Seay Deposition at 23. Aaron’s attorneys did not challenge this action, as an objection to a similar order entered prior to the start of the first trial was addressed and dismissed by the Alabama Supreme Court. Nonetheless, Judge Johnson held that failure to object to the court’s action prior to the second trial constituted a waiver of Aaron’s right to a public trial.

Although it is clear that a person’s right to a public trial can be waived, see Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), we are reluctant to conclude that the failure to make an objection already overruled by the state’s highest court and thus clearly futile constituted an actual waiver of Aaron’s right to a public trial. Rather, we conclude on the merits of that contention that Aaron was not in fact denied a public trial.

Courts have differed over the propriety of excluding certain persons from criminal trials. Compare Tanksley v. United States, 9 Cir., 1944, 145 F.2d 58, 10 Alaska 443, with Harris v. Stephens, 8 Cir., 1966, 361 F.2d 888, 891, cert. denied, 386 U.S. 964, 87 S.Ct. 1040, 18 L.Ed.2d 113 (1967), and United States v. Geise, 9 Cir., 1958, 262 F.2d 151, cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959) (latter cases holding it proper to close courtrooms to certain spectators in rape trials). As we have previously noted, “The constitutional right to a public trial is not a limitless imperative.” Lacaze v. United States, 5 Cir., 1968, 391 F.2d 516, 521. The fact that some members of the public were barred from the courtroom does not necessarily mean that a denial of a public trial has occurred; the “decision must turn on the particular circumstances of the case, and not upon a question-begging because abstract and absolute right to a ‘public trial.’ ” Levine v. United States, 362 U.S. 610, 616-617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960). See also 6 Wigmore on Evidence § 1835, at 338 (3d ed. 1940).

In this ease, some members of the public were admitted; the courtroom was at least three-fourths full; the transcript of the trial became public record. Particularly important is the fact that the news media were admitted. The published reports of the trial were lengthy and complete. The defendant’s relatives and clergyman were present to provide moral support and comfort to the accused. In sum, we find none of the secrecy of the proceedings which are condemned by the Sixth Amendment and In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); see also, as an example of proceedings incompatible with the demand for public trial, Caudill v. Peyton, 4 Cir., 1966, 368 F.2d 563 (trial conducted in judge’s chambers). We conclude that the denial of one’s right to a public trial is not at issue where “[tjhere was no in camera or secret trial. [The trial] was held in a public courtroom with attorneys, court reporters, court attendants and at least some outsiders present.” United States ex rel. Bruno v. Herold, 2 Cir., 1969, 408 F.2d 125, 127, cert. denied, 397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141 (1970). “Certainly under modern conditions, when friends of the accused, the representatives of the press, and those necessary to the proper conduct of the trial are present, the defendant receives every safeguard insured by a trial open to the general public.” Note, 45 Mich.L.Rev. 474, 479 (1937).

Affirmed.

APPENDIX

Opinion of District Judge Frank M. Johnson, Jr.

OPINION

Drewey Aaron, a black man, was convicted in 1960 in a state court in Alabama upon an indictment charging rape of a white woman, and a death sentence was imposed. Aaron petitions this Court for a writ of habeas corpus, alleging numerous errors of constitutional dimension which he claims entitle him to relief. This Court, in its order filed on November 26, 1973, granted petitioner a hearing on three issues: first, whether petitioner effectively waived his right to grand and petit juries selected without regard to race; second, whether the grand and petit juries which indicted and convicted petitioner were unconstitutionally selected; and third, whether petitioner was denied his right to a public trial. The case is submitted upon the pleadings, briefs, affidavits, depositions, and stipulations filed in this case.

I. Applicable Law

As an initial matter, it is abundantly clear that a state may not constitutionally require defendants to be tried to a jury from which citizens have been systematically excluded on account of their race. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955). It is also clear that whatever rights Aaron has as to this issue are not lost merely by the passage of time. Hamilton v. Watkins, 436 F.2d 1323 (5th Cir. 1970).

Nevertheless, a defendant’s right to be tried by a jury constituted without regard to race is a right which may in certain circumstances be waived. In this respect, there are two distinct varieties of waiver which must be considered. The first is a procedural or fictitious waiver, which is a function of criminal procedure and not of constitutional law. Procedural waiver is deemed to have occurred when issues are not presented to the trial court at a specified time or in a specified manner. ABA Project on Standards for Criminal Justice, Post-Conviction Remedies 88 (Commentary) (Approved Draft, 1968) (hereafter cited as “Post-Conviction Remedies”). This doctrine of procedural waiver is recognized in criminal cases in the State of Alabama and in the federal courts. In particular, a defendant in Alabama who does not present a timely and proper challenge to the composition of the grand or petit jury is deemed under Alabama law to have waived that objection. Ex parte Seals, 271 Ala. 622, 126 So.2d 474 (1961). Under this rule of procedural waiver, Aaron was held by the Alabama Supreme Court to have waived his right to challenge the composition of the grand jury which indicted him and the petit jury which tried him. Ex parte Aaron, 275 Ala. 377, 155 So.2d 334, cert. denied, 375 U.S. 898, 84 S.Ct. 177, 11 L.Ed.2d 126 (1963). When state procedural waiver is held to have occurred, it may be an adequate state ground, to remain undisturbed by the United States Supreme Court upon certiorari in cases of direct review or review of state post-conviction remedies. Parker v. North Carolina, 397 U.S. 790, 798, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

There is, however, a second variety of waiver, one which is a matter of federal constitutional law. This genuine waiver involves an active, knowing choice, an intelligent and understanding decision to forego certain rights. Post-Conviction Remedies at 88 — 89. This form of waiver was defined in Johnson v. Zerbst as “an intentional relinquishment or abandonment of a known right or privilege.” 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). While state procedural waiver may remain undisturbed on appeal, a federal court in a habeas corpus action has the power to pierce the procedural waiver and to require a showing of a Zerbst waiver. Fay v. Noia, 372 U.S. 391, 425, 429-430, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). This Court is asked by petitioner to hold that the procedural waiver made by counsel in this case does not serve to waive his right to trial before a constitutionally-selected jury.

It might have been thought until recently that the defendant himself had to make a personal Zerbst waiver of his right to a constitutional petit jury. Fay v. Noia was quite vague concerning the proper party, whether the attorney or the defendant, to make these procedural choices, noting only that “[a] choice made by counsel not participated in by the petitioner does not automatically bar relief.” Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). However, the Supreme Court in Henry v. Mississippi noted that counsel’s choice of strategy might “amount to a waiver binding on petitioner [which] would preclude him from a decision on the merits of his federal claim . . . .” Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965). It is now clear that

a constitutional objection to the composition of a grand or petit jury may be waived by an attorney without consultation with his client where there is “conscientious consideration of that course of action which would be best for his client’s cause”.

Winters v. Cook, 489 F.2d 174, 180 (5th Cir. 1973) (en banc). Therefore, a “waiver” by counsel is not to be invalidated in circumstances like these merely because the attorney did not explain the decision to, or consult with, his client.

Here, Aaron’s counsel effected the procedural waiver of Aaron’s right to an indictment by and trial before properly constituted grand and petit juries. There are three groups of situations in which waiver by the attorney will not be binding upon the petitioner. The first group involves situations in which the lawyer has, through some personal fault or error, failed to give competent representation to the defendant. These are cases in which there is a showing of “fraud, or gross negligence or incompetence on the part of the defendant’s attorney.” Winters v. Cook, 489 F.2d 174, 178 (5th Cir. 1973) (en banc). In such a case, the petitioner must be allowed to effect or reject a personal waiver of the right involved. There is here no showing or claim of gross negligence or incompetence. Second, a personal waiver by defendant is necessary in cases in which “an inherently personal right of fundamental importance is involved.” Id. at 178. It is now clear in this circuit, after Winters, that

the right to be indicted or tried by a constitutionally composed jury is not one of the rights traditionally considered so inherently personal that only the defendant may waive it.

Id. at 180. Third, and most pertinent to this case, the waiver by an attorney may be held invalid and not binding upon his client if counsel was forced to make what is termed a “grisly choice.” The “grisly choice” theory first appeared as an exception to the concept of “deliberate by-pass” in the law applied in habeas corpus cases. The deliberate by-pass rule first appeared in Fay v. Noia:

If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits

372 U.S. at 439, 83 S.Ct. at 849. Accord, Henry v. Mississippi, 379 U.S. 443, 451—452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) (failure to observe state “contemporaneous objection” rule a deliberate by-pass). Thus it is clear that if a decision to waive certain rights is made for strategic reasons, a deliberate by-pass has been effected, and the federal district court on habeas corpus may properly hold that the procedural waiver is effective.

However, while a strategic decision upon trial may be a deliberate by-pass and thus an effective waiver, courts have attempted to make a distinction between a strategic waiver and what is termed a “grisly choice,” a phrase excerpted from Fay v. Noia, 372 U.S. 391, 440, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). A “deliberate by-pass” is a valid waiver under Noia principles; a “grisly choice” is not. Thus, we must consider whether Aaron’s trial counsel in this case was faced with a “grisly choice,” or whether he made a “deliberate by-pass” of Aaron’s right to challenge the composition of the petit and grand juries.

The United States Court of Appeals for this circuit noted some two years after Aaron’s second conviction that an attorney in a Southern setting faces at least a “Hobson’s choice,” when he is deciding whether to challenge the composition of a trial jury. While in doing so he would be pursuing his client’s undoubted constitutional right, there would be the strong possibility of serious prejudice to the defendant:

If the segregation policy in a county is so strong that Negroes are systematically excluded from the jury system, community hostility would be generated against any “troublemaker” who would attempt to upset the all-white make-up of the jury system. Such hostility would directly affect the Negro defendants.

Whitus v. Balkcom, 333 F.2d 496, 506—507 (5th Cir. 1964) (emphasis added). That court noted that “[t]he effect will, of course, be accentuated if the case is one involving . . . the rape of a white woman by a Negro . . . .” Id. This, of course, is such a case. The court in Whitus held that

the doctrine of fictitious waiver is unacceptable when the state compels an accused person to choose between an unfairly constituted jury and a prejudiced jury . . .We hold that the State could not constitutionally require the petitioners to make a guess and a gamble between two evils.

Id. at 510. The Supreme Court in Henry v. Mississippi approvingly cited Whitus as an exceptional circumstance involving a grisly choice. 379 U.S. at 451—452, 85 S.Ct. 564. Numerous courts and commentators have agreed that a circumstance of this nature may in some circumstances constitute a grisly choice to be made by defendants or their counsel.

Formerly, it appeared that a court might have the power to

take judicial notice that white lawyers in this circuit almost always will sacrifice their Negro clients’ rights to be tried by a constitutionally selected jury out of a fear of community opprobrium or social ostracism.

Winters v. Cook, 489 F.2d 174, 178 (5th Cir. 1973) (en banc). It is now abundantly clear that a habeas petitioner must offer evidence amounting to prima facie proof that he or his attorney faced a grisly choice and did not therefore make a deliberate by-pass of his right to challenge the composition of the jury.

II. Findings of Fact

Soon after petitioner’s arrest, his wife approached Solomon S. Seay, Jr., Esq., a black attorney in Montgomery. After initially suggesting to Mrs. Aaron that she retain more experienced trial counsel, Mr. Seay agreed to take the case. Mr. Seay associated J. L. Chesnut, Esq., a young black attorney from Selma.

Aaron’s attorneys declined to challenge the jury selection system at either trial. They testified on deposition in this case that their primary reason for failing to challenge the jury selection system was fear of prejudicing the jury and the court against their client.

While such a decision at Aaron’s first trial might arguably have been a “grisly choice,” a point which this Court need not decide, the first trial resulted in conviction. After reversal, it should have been apparent to the attorneys that since the waiver in the first trial had been of little benefit (the verdict being one of conviction), the value accruing to the client by their passive policy was gossamer at best. At least at that point, after the experience of one conviction, the attorneys’ failure to attack the composition of the grand and petit juries became a deliberate by-pass and not a grisly choice. Therefore Aaron must remain bound by the choice made by counsel at the trial of his case.

It is therefore unnecessary to decide whether the jury system as it operated at the time of Aaron’s second conviction was unconstitutional.

III. Public Trial

Petitioner contends that he was, during his second trial, denied his constitutional right to a public trial. At trial, attendance was restricted to relatives, counsel, a minister, court officials and newspapermen.

The Sixth Amendment to the United States Constitution guarantees to an accused the right to a “public trial.” This limitation operates upon the states by virtue of its incorporation into the due process clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). The guidelines of this right to a public trial are unclear. “[Wjithout exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.” Id. at 271 — 272, 68 S.Ct. at 507.

At petitioner’s second trial, the courtroom was, according to the testimony of Mr. Seay, about three-quarters full and contained several of Aaron’s friends. The trial judge excluded all save a very few specifically-allowed spectators. Mr. Seay testified that he did not object at the second trial since he had objected and had been overruled at the first trial and the trial court had been affirmed on that point. See Aaron v. State, 271 Ala. 70, 78, 122 So.2d 360 (1960).

This exclusion was accomplished pursuant to the Alabama Constitution, which provides in part that “[i]n all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial.” Ala.Const. § 169 (1901) (emphasis added).

It is not necessary in this case to decide whether the Alabama Constitutional provision is unconstitutional on its face or as applied. Petitioner’s counsel were aware of the need to assert his constitutional right to a public trial; they did so at the first trial and pressed the point on appeal. Their failure to assert this right at the second trial can only be termed a deliberate by-pass. Therefore, Aaron is not entitled to habeas corpus relief on this point.

      . Section 169 provided:
      In all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary to the conduct of the trial.
      The provision was repealed in 1973.

      . Aaron was first convicted in the state circuit court in Montgomery, Alabama, in 1959. His conviction was reversed by the Alabama Supreme Court in 1960 upon an evidentiary error. Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960). Upon remand, Aaron was again convicted, and his second conviction was affirmed. Aaron v. State, 273 Ala. 337, 139 So.2d 309, cert. denied, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82 (1962). Aaron’s petition for leave to file a petition for writ of error coram nobis, dealing with the jury exclusion issue, was denied by the Alabama Supreme Court. Ex parte Aaron, 275 Ala. 377, 155 So.2d 334, cert. denied, 375 U.S. 898, 84 S.Ct. 177, 11 L.Ed.2d 126 (1963). A supplemental application for leave to petition for writ of error coram nobis was denied on February 4, 1965.

      . Aaron filed his original petition in this Court on February 15, 1965. This Court on that date issued a stay of execution and stayed further proceedings to allow Aaron to present further matters to the state courts. On May 17, 1966, after leave obtained from the Supreme Court of Alabama, Aaron petitioned the state trial court for a writ of error coram nobis, which was dismissed by the trial court. That dismissal was reversed by the State Supreme Court to allow Aaron to obtain a hearing in the trial court on Wither-spoon issues. Aaron v. State, 283 Ala. 52, 214 So.2d 327 (1968). The state trial court denied relief on the Witherspoon issue on June 25, 1970. Aaron appealed to the Alabama Court of Criminal Appeals. On August 24, 1972, this Court declared void, following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the sentence of death imposed upon Aaron. On March 20, 1973, the Alabama Court of Criminal Appeals commuted Aaron’s death sentence to one of life imprisonment. Aaron v. State, 49 Ala. App. 402, 272 So.2d 609 (Ct.Crim.App.1973). The Witherspoon issue was mooted by the death penalty holdings. On June 13, 1973, this Court ordered the State of Alabama to show cause why this Court should not issue the writ of habeas corpus prayed for by Aaron.

      . Rule 12(b)(2) of the Federal Rules of Criminal Procedure establishes the fictitious waiver rule in federal courts:
      Defenses and objections based on defects in the institution of the prosecution . may be raised only by motion before trial Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.
      In Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the Supreme Court held that a defendant who did not make a timely objection waives it, “in the absence of the showing of ‘cause’ which that rule requires.” 411 U.S. at 242, 93 S.Ct. at 1583. The challenge in Davis was to the composition of the grand jury.
      This Court views Alabama law on this point as holding that, once a right is “waived” procedurally, it is permanently waived according to state law. The Constitution requires that in certain instances, for instance where a “grisly choice” [discussed infra] may be proved to have been required, any procedural waiver rule must implicitly contain a requirement that the waiver be set aside “for cause shown.” In Davis, cause simply was not shown.

      . In Alabama criminal practice, the formation of the trial venire is properly attacked by a written motion to quash the venire, while the method of attacking the composition of the grand jury has been both plea in abatement or motion to quash the indictment. M. McGee, Alabama Criminal Practice 201-02 (1969).

      . The recent case of Winters v. Cook does not reach the issue of the “grisly choice”:
      [W]e need not reach the petit jury issue either. Winters’ counsel never faced this choice. His decision to use the potential of raising such an objection to assure his client safe passage past the hazard of a death sentence obviated any need to make the “grisly choice” as to the jury he did not face.
      489 F.2d at 179.

      . Noia’s grisly choice, it will be recalled, was between resting content with a life sentence or appealing and taking a chance of execution’ upon retrial and conviction.

      . The term “grisly choice,” as a legal term of art, did not come into use until 1963, in Fay v. Noia.

      . Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970); McNeil v. North Carolina, 368 F.2d 313, 315 (4th Cir. 1966); Cobb v. Balkcom, 339 F.2d 95, 98-99 (5th Cir. 1964); Whitus v. Balkcom, 333 F.2d 496, 498-499 (5th Cir. 1964); United States ex rel. Seals v. Wiman, 304 F.2d 53, 69 (5th Cir. 1962), cert. denied, 372 U.S. 924, 83 S.Ct. 741, 9 L.Ed.2d 729 (1963); United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 82 (5th Cir.), cert. denied, 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78 (1959).

      . Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1108 (1970); Note, Criminal Waiver: The Requirements of Personal Participation, Competence and Legitimate State Interest, 54 Cal.L.Rev. 1262, 1270 (1966); Note, 16 Ala.L.Rev. 117, 121 (1963) (case note discussing one of Aaron’s appeals).

      . The idea that courts could take judicial notice of the existence of a grisly choice apparently rose from Goldsby, in which the Court held that
      [a]s Judges of a Circuit comprising six states of the deep South, we think that it is our duty to take judicial notice that lawyers residing in many southern jurisdictions rarely, almost to the point of never, raise the issue of systematic exclusion of Negroes from juries.
      United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 82 (5th Cir.), cert. denied, 361 U.S. 850, 80 S.Ct. 109, 4 L.Ed.2d 89 (1959).


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    Thomas R. PRINCE, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 73-3108.
    United States Court of Appeals, Fifth Circuit.
    Jan. 31, 1975.
    Rehearing and Rehearing En Banc Denied March 13, 1975.

      Robert R. Bryan, Birmingham, Ala. (Court-appointed), for petitioner-appellant.
    William J. Baxley, Atty.Gen., Don C. Dickert, Joseph G. L. Marston, III, Asst. Attys. Gen., Montgomery, Ala., for respondent-appellee.

      Before GODBOLD, SIMPSON and IN-GRAHAM, Circuit Judges.
   SIMPSON, Circuit Judge:

We review a denial of a habeas corpus petition which alleged that the appellant, Thomas R. Prince, was not afforded his Sixth and Fourteenth Amendment right to a speedy trial by virtue of a nine year delay between his indictment in Alabama on two counts of robbery and subsequent trial on those charges. The district court denied the petition on grounds articulated' by the Alabama Court of Criminal Appeals, which had similarly denied Prince’s appeal for post-conviction relief. The Alabama court found that Prin.ce had not been denied his speedy trial right because: (i) Prince had made no serious demand for a speedy trial; (ii) Prince was not “available” for return to Alabama for trial because of his incarceration in California; and (iii) Prince had thwarted attempts by the State of California to grant his parole by refusing to waive extradition to Alabama. Prince v. State, Ala.Cr.App. 1973, 50 Ala.App. 368, 279 So.2d 539, 542-545.

Our review of the record convinces us that the Alabama court erred as a matter of law in determining that Prince had not effectively demanded a speedy trial and that Prince was not “available” for extradition to Alabama during the period of his incarceration in California. We further find no substantial support in the record for the Alabama court’s finding that Prince thwarted California’s attempts to grant his parole, with the exception of a single instance of insignificant import. Aceordngly, we reverse and remand for the granting of the appropriate relief.

I. Facts

The State of Alabama acquired an interest in the appellant, Prince, as a result of two robberies both allegedly occurring in Birmingham, Jefferson County, Alabama, on May 7, 1962. In one incident a local A & P food store was robbed of $160 at gunpoint; the robber fired a shot at the store manager as he was leaving the store. A second incident involved the taking of $140, again at gunpoint, from an individual with whom the appellant had been shooting dice. Both the cashier of the A & P store and the disgruntled crapshooter identified Prince as the robber. A Jefferson County, Alabama, grand jury returned indictments on May 10, 1962 charging Prince with the two robberies.

Less than two months later, on June 29, 1962, Prince was arrested in Los An-geles, California, and charged with grand theft and armed robbery. Upon learning of Prince’s arrest, Emmet Perry, the State Solicitor for Alabama’s 10th Judicial Circuit, having jurisdiction over Jefferson County, lodged a detainer with the Los Angeles Sheriff’s Department on July 12, 1962. The letter from Solicitor Perry to the Los Angeles County Sheriff’s department read in pertinent part:

[Pjlease let u's know the status of the pending charges there and the likelihood of his being returned here. If he should become available please ascertain if he will waive extradition, and if so, notify this office and we shall promptly send our agent for him. (Emphasis supplied)

The reply was in kind: “Your Warrant has been filed as a Detainer, and you will further be advised if and when this subject is available to your department.” (Emphasis supplied). As it developed, Prince did not become “available” for almost nine years.

Prince was convicted on the grand theft and robbery charges in Los Ange-les Superior Court and received on December 11, 1962, concurrent sentences of six months to ten years and five years to life. Prince was then transferred to the custody of the California Department of Corrections (CDC) Reception-Guidance Center at Chino, California. At this time, CDC wrote to the Sheriff of Jefferson County, Alabama, and inquired about the existence of any detainers against Prince. In reply, Solicitor Perry informed the CDC of the outstanding indictments against Prince, and requested that CDC “[pjlease advise the approximate release date . . .. This office will extradite at our expense.” The CDC answered: “You will be given the usual sixty (60) days’ notice prior to his release from the Department of Corrections.”

It appears that Prince was transferred to the CDC Medical Facility at Vacaville, California. The Solicitor of Jefferson County was advised of Prince’s transfer on February 27, 1963. He remained at Vacaville until June 1967. In April 1964, CDC — Vacaville notified Solicitor Perry that Prince would be appearing before the Adult Authority for parole and sentence consideration in June 1964, and sought a response as to Alabama’s intentions with regard to Prince at that time. The Solicitor’s reply was: “It is our intention to take custody of subject when he is released by you.” Similar exchanges between CDC and the Solicitor’s office in Birmingham are reflected annually through 1967. Each letter from the Solicitor’s office to CDC iterated Alabama’s intention to return Prince for trial on the pending charges “when available.” The only indication in the record as to the outcome of Prince’s appearances before the Adult Authority is contained in a letter from CDC to Earl C. Morgan, Perry’s successor in office as Solicitor for the 10th Judicial Circuit of Alabama, in which the CDC stated that Prince was denied parole at his April 1966 hearing before the Adult Authority.

In the meantime, Prince had communicated with the Solicitor’s office on his own behalf. His letters were essentially requests that Alabama withdraw its de-tainer or dismiss its charges against him to aid in his receiving the most favorable treatment and training programs offered by CDC. In his first letter, dated October 28, 1963, Prince stated his concern as follows:

I am endeavering to take advantage of the excellent Mental Health Program in the State of California. This state has facilities for out patient Psycho Therapy for parolee’s to attend under close supervision of Psychiatrists in cordination with the supervision by the California Parole Department.
I do not except to be released at a early date, but if your County drops there hold I will be eligible for the future continuous, Mental Health Program. Then on completion, I would become eligible to be paroled out to a Out Patient Clinic, in this State, under there guidance and there full responsibility.
This a long range program of many years, but with your cooperation and consideration I will be well on the road to a complete recovery and able to be a better citizen to society.
This request will be deeply appreciated and relieve my many worries for the future.

The record does not indicate that Prince received any reply from the Solicitor’s office in response to this communication. In October 1965, Prince again wrote requesting that charges be dropped and furnished as a basis for his request his belief that he had been rehabilitated by his experience under the care of the CDC. Again Prince apparently received no response from the Solicitor’s office for pencilled in on the bottom of Prince’s letter from the Solicitor’s file is the notation “No necessity for a reply.” Following the notation are the initials “B.H.”, the record containing no clue to the identity of “B.H.” Prince wrote a third letter to the Solicitor’s office in November 1966, again asking that the detainers be withdrawn and stating that their pendency was having an adverse impact on his consideration for parole programs in California. This time, he received the following response from Solicitor Morgan: “[T]his is to advise that disposition of the cases pending against you cannot be made until you are returned to this jurisdiction.” This exchange ended Prince’s attempts to deal directly with the Solicitor’s office in Birmingham so far as the record discloses.

On June 12, 1967 Prince was transferred from the Medical Center at Vacaville to the CDC facility at San Quentin Prison. Prince turned at about this time toward use of the judicial process to have the Alabama charges dismissed. He sought the assistance of nearly a dozen attorneys or organizations, such as the NAACP, in his efforts. He received, with one exception — assistance from a law student at Hastings College of Law in San Francisco — little more than helpful advice and polite “No-thank-yous.”

On his own behalf and with the assistance of the Hastings law student acting under the tutelage of a licensed attorney Prince filed a petition for writ of habeas corpus in the Superior Court for Marin County, California, seeking to have the Alabama detainer declared unenforceable in the courts of California on grounds that Alabama had denied him his right to a speedy trial. The petition was denied and Prince appealed to the California First District Court of Appeal. While this appeal was pending, Prince also filed a Petition for Writ of Habeas Corpus with the United States District Court for the Northern District of California. The federal court dismissed the petition without prejudice to its renewal when state remedies had been exhausted. Thereafter, Prince’s appeal was decided adversely by the state District Court of Appeal, and Prince sought review by the California Supreme Court. When his petition was there denied, he returned to federal district court to seek habeas relief. His petition to that court was pending at the time of his release to Alabama officials in February, 1971.

During the period after his transfer to San Quentin, Prince had also sought relief from the courts of Alabama and from the Governor of that state. In July 1968 Prince forwarded to the Solicitor in Jefferson County a pro se “Motion to Set Aside the Information or to Dismiss the Information.” Grounds alleged in support of his motion were the denial of his right to a speedy trial under the Sixth and Fourteenth Amendments to the Constitution. Prince intended perhaps for the Solicitor to file the Motion in the Tenth Judicial Circuit Court on his behalf, but the record does

not indicate that the papers were ever filed with the court. Subsequently, Prince petitioned the Alabama Supreme Court to grant his motion. His papers filed in federal district court in California indicate that this Motion was denied by the Alabama Supreme Court.

In May 1969, Prince wrote to the Governor of Alabama seeking his assistance in having the robbery charges dismissed. He explained the circumstances leading to the issuance of the indictment in Alabama, the progress he had made toward rehabilitation in the custody of the CDC, the lack of response from the Alabama state courts to his motions, and his hopes for parole in California. His letter was forwarded to the Solicitor in Jefferson County by a member of the Governor’s staff with the notation:

I am enclosing a letter from one of your constituents who is having a little difficulty at the present time. This man is obviously not guilty because he says so in his letter. Thought you might get a kick out of it.

The Governor’s office never responded directly to Prince.

Having thus far failed in his attempts to have the Alabama charges pending against him dismissed, Prince made his annual appearance before the Adult Authority in California for consideration for parole or sentence adjustment in 1970. At that time, Prince was granted parole “to go to hold,” meaning that he would be paroled subject to the right of Alabama authorities to take custody of him. The State of California, under this type of parole, retained the power to order Prince’s return to CDC upon (i) Alabama’s failure to take custody or (ii) his release by Alabama authorities. In October 1970, Prince executed a waiver of extradition form, and preparations were made for his return to Alabama. However it appears that in December 1970 Prince rescinded his consent to accept parole “to go to hold,” and his case was recalendared for further consideration by the Adult Authority. Upon reconsideration, the Authority granted Prince’s request that he be paroled “subject to hold,” meaning that he would be paroled subject to the right of Alabama authorities to take custody under their detainer, but that the State of California would not retain the right to return Prince to custody of the CDC except, we assume, for violations of the conditions of parole including conviction for a separate offense. Again Prince waived extradition, and Alabama authorities took custody of him upon his release on February 22, 1971. Here began the second leg of the procedural odyssey which has brought Prince once again before this court.

Upon his return to Alabama, Prince filed a Motion to Dismiss the Indictment and a Petition for Writ of Habeas Corpus in the Circuit Court for Jefferson County, both based on denial of his right to a speedy trial. An evidentiary hearing on the Motion was held before Judge Elias C. Watson of that court on September 8, 1971. After taking considerable testimony and receiving numerous exhibits, the Judge denied the Motion and Petition. Prince then sought habeas in the United States District Court for the Northern District of Alabama, where relief was withheld on the ground that Prince had not been denied his speedy trial right. On appeal, we affirmed on jurisdictional grounds, holding that the district court lacked jurisdiction to entertain Prince’s Petition under Title 28 U.S.C. Sec. 2254(a) since Prince was at that time not in custody “pursuant to the judgment of a State court.” Prince v. Bailey, 5 Cir. 1972, 464 F.2d 544.

Prince was finally tried by the State of Alabama on the robbery charges in March of 1972. He was convicted and received a twenty year sentence. Speedy trial grounds were a part of the basis for his ensuing appeal to the Alabama Court of Criminal Appeals. While his appeal was pending, he returned to federal district court with another habe-as corpus petition. This petition also was denied, and we affirmed on jurisdictional grounds, ruling that under Title 28 U.S.C. Sec. 2254(b) & (c) federal courts should not accept jurisdiction until Prince had exhausted his available state remedies. Prince v. Alabama, 5 Cir. 1973, 476 F.2d 298.

On March 27, 1973, the Alabama Court of Criminal Appeals issued its decision affirming Prince’s conviction and holding that Prince had not been denied his Sixth and Fourteenth Amendment rights to speedy trial by virtue of the delay in being brought to trial in Alabama. Prince v. State, Ala.Cr.App.1973, 50 Ala.App. 368, 279 So.2d 539.

We detail the basis for its decision regarding the speedy trial claim because of the reliance by the federal district court upon the Court of Criminal Appeals decision in denying Prince’s habeas corpus petition. The Alabama appellate court, found:

On July 9, 1968, appellant sent to the district attorney in Birmingham, to be filed in the Circuit Court, a request for trial upon the charges presently pending against him. This request was never filed nor answered. During this period of time, appellant was eligible for parole in California, and had appeared before the parole board beginning in 1964. However, appellant would not accept the condition of the parole, i. e., releasing him to the State of Alabama for trial, but refused extradition until 1971. Appellant also during this period refused to waive extradition, and as a consequence remained in confinement until his actual parole release date to Alabama.
The State of Alabama, beginning July 12, 1962, requested, of California, the appellant for trial, and on this date filed detainers against him. Continuously from July 12, 1962, until February 1, 1971, the State of Alabama informed California that when appellant was available, Alabama desired to return appellant to this State for trial.
The State oí California never notified Alabama that appellant would be available or released, until he was paroled on February 22, 1971. The Chief Executive for the State of Alabama issued a requisition warrant to the State of California upon which the Governor of California issued a rendition warrant and released the appellant to Alabama for trial. (Footnotes 1 — 3 omitted)
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(4. Apparently, due to appellant’s refusal of extradition, California elected to require appellant to complete his sentence before releasing him to Alabama. Clearly, the appellant could not both demand trial in Alabama on the one hand, and refuse to appear on the other. * * * y

279 So.2d at 540 — 541. The Court of Criminal Appeals then turned to a discussion of the relevant cases. After quoting at length from Dickey v. Florida, 1970, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26, and Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the court concluded:

[W]e find that from the period from 1962 until the mailing of his “demand” to the district attorney in Birmingham in 1968, the appellant’s efforts were largely frivolous, being in the nature of the letters seeking dismissal of the charges rather than a good faith demand of trial to vindicate his position. Also equally sufficient is the fact that from 1962 through 1971, the State of Alabama had made some thirteen separate requests of California, seeking information as to the early release of the appellant to the State of Alabama for trial. * * * Because of these circumstances, we are of the opinion that the State of Alabama secured the presence of the appellant as soon as it could because the State of California at no time had indicated that the appellant would be made available for trial in Alabama prior to releasing the appellant in 1971.
* # * * * *
In light of these authorities, it is clear that the State of Alabama, under the facts presented by the record on appeal in this case, had no opportunity to exercise its jurisdiction over the appellant for the offense charged until his return to the State of Alabama in 1971; therefore, the trial court correctly denied appellant’s motion for a speedy trial dealing with the period of incarceration in California prior to his return to the State of Alabama, (citations and footnotes omitted). 279 So.2d at 544 & 545.

Thus at long last having exhausted his available state remedies, Prince returned to the federal district court seeking ha-beas corpus relief. The court again denied the petition on the merits, stating:

This court finds itself in agreement with the Alabama Court of Criminal Appeals that in spite of the long delay in bringing the petitioner to trial, the Alabama Courts have properly applied the criteria established by the decision of the Supreme Court in Barker v. Wingo, [citation omitted] in deciding that petitioner had not been unconstitutionally denied his right to a speedy trial.

This appeal followed.

II. The Speedy Trial Right

The right of criminal defendants to a speedy trial though of long standing, has only recently received jurisprudential emphasis in Anglo-American courts. The Sixth Amendment right is among those fundamental constitutional rights made applicable to the States through the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 1967, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. The protections afforded by the right are, moreover, not diminished because a criminal defendant may be incarcerated under a lawfully imposed sentence outside the jurisdiction seeking to prosecute him. Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; May v. Georgia, 5 Cir. 1969, 409 F.2d 203. The Supreme Court has held that a State is required, through the use of writs of extradition, writs of habeas corpus ad prosequendum, or whatever other means may be available, to make a “diligent, good-faith effort” to secure a convict incarcerated out of state for a prompt trial on pending charges. Smith v. Hooey, supra, 393 U.S. at 383, 89 S.Ct. at 579, 21 L.Ed.2d at 614. We have held this requirement to apply retroactively to the States. Hoskins v. Wainwright, 5 Cir. 1973, 485 F.2d 1186 (Hoskins III; see note 4, supra).

The State of Alabama, therefore, was under a constitutionally imposed mandate to afford the appellant here a speedy trial. In deciding whether, as the appellant alleges, Alabama has failed to comply with this mandate, we must undertake a “functional analysis of the right in [this] case.” Our analysis is keyed to the four factors outlined by the Supreme Court in Barker v. Wingo, 1972, 407 U.S. 514, 530, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101, 117: the length of delay, the reasons for delay, the defendant’s assertion of his right, and the prejudice to the defendant. In evaluating Prince’s claim in light of these four factors, we are mindful that:

[N]one of the four factors [is] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.

Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.

A. Length of Delay

The routine approach to computation of delay in speedy trial cases is to consider the length of time elapsed between indictment and trial — fully ten years in the instant case. Two factors require that we pursue a modified approach here, however. First is the fact that Prince was not realistically available to Alabama authorities until after his trial and conviction in California, when he was committed to the custody of the California Department of Corrections in December 1962. Second is recognition that the delay between Alabama’s taking custody of Prince in February 1971 and his trial on the robbery charges in March 1972 was attributable in part to delays occasioned by Prince himself. Without exploring this latter period in detail, we calculate the length of delay for purposes of our inquiry here to have been roughly eight years — from December 1962 to February 1971. This delay, like the 8V2 year delay we considered in Hos-kins v. Wainwright, (Hoskins I) supra, note 4, 440 F.2d 69, 71, was patently “inordinate.” It remains to be determined whether it was also “unjustified.” Id.

B. The Defendant’s Assertion of His Right

Prior to the decision of the Supreme Court in Barker v. Wingo, supra, the majority rule was that a defendant who failed to make prompt demand for a speedy trial was deemed to have waived that right for the period up to the time of his first demand. This rule, known as the “demand-waiver” rule, was reject^ ed in Barker. There, the Court recognized the compatibility of the fundamental nature of the speedy trial right, Klopfer v. North Carolina, supra, and the presumption against waivers of fundamental constitutional rights first enunciated in Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

Accordingly, the Court in Barker substituted for the rigid demand-waiver rule a more flexible approach in which the defendant’s assertion of his speedy trial right became merely one of the several factors to be considered in determining whether the right had been abridged. While the Court indicated that the absolute failure of the defendant to assert his right would “make it difficult for [him] to prove that he was denied a .speedy trial,” the Court emphasized that the burden was upon the prosecution to show that the failure of the defendant to assert his right was a knowing failure:

In ruling that a defendant has some responsibility to assert a speedy trial claim, we do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made. 407 U.S. at 529, 92 S.Ct. 2191, 33 L.Ed.2d at 116.

In determining whether Prince made an adequate assertion of his speedy trial right, we are further guided by Barker and by the Court’s subsequent decision in Strunk v. United States, 1973, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. In Barker, the Court noted that a flexible approach to determination whether the defendant had asserted his speedy trial right

would permit ... a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 116.

In Strunk, the Court gave an implicit indication that the focus of the assertion inquiry might properly be directed toward the question whether the prosecution is put “on notice” of the defendant’s speedy trial claim. There, the Court said:

The entire course of events from the time of arrest through the Court of Appeals plainly placed the Government on notice that the speedy trial issue was being preserved by the accused and would be pressed, as indeed it has been. 412 U.S. at 436, 93 S.Ct. at 2262, 37 L.Ed.2d at 59.

We interpret these rulings as an indication that the courts should take a liberal view of convict-defendants’ attempts to contact the prosecutors and courts in other jurisdictions regarding charges pending against them there. Such an approach would be consistent both with the concept that chargeable failure to assert a constitutional right must be both knowing and intelligent, Johnson v. Zerbst, supra, and with the realities of a defendant’s incarceration, often distant from the prosecuting state and without the effective assistance of counsel.

Here Prince first raised the speedy trial issue in those terms with Alabama officials in July 1968 when he mailed his motion to dismiss the charges, based upon the asserted denial of his speedy trial right, to the Solicitor in Jefferson County. This motion, which Prince apparently intended be filed with the circuit court, certainly placed the prosecution on notice that Prince was preserving his speedy trial claim. Strunk v. United States, supra. The fact that the notice arrived in the form of a motion to dismiss is of no consequence. Prince effectively asserted his speedy trial right at least as early as July 1968.

We are not convinced, moreover, that Alabama authorities were not placed on notice that Prince wanted speedy disposition of pending charges as early as October 1963. At that time Prince asserted that the outstanding charges against him would adversely affect his eligibility for rehabilitation programs under the California Department of Corrections and requested that the charges be dropped. He ended his letter by stating: “This request will be deeply appreciated and relieve my many worries for the future.”

Prince, prophetically, was complaining of precisely the type of prejudice peculiar to convicts against whom charges are outstanding in another jurisdiction and noted by the Supreme Court in its decision in Smith v. Hooey, supra, 393 U.S. at 378-379, 89 S.Ct. at 577, 21 L.Ed.2d at 611 — 612. If the speedy trial right is designed, at least in part, to protect certain interests of the accused, and if the accused asserts to the prosecuting authorities that delay in resolution of the charges pending against him is prejudicing those very interests, this may very well in itself be sufficient to put the prosecution on notice that the accused desires a speedy resolution of the charges pending against him. It would seem unduly harsh to require that an unsophisticated accused, proceeding pro se, invoke the talismanic phrase “speedy trial” before he can claim to have asserted his right. Especially is this so when the prosecution continues at all times to bear the responsibility for securing a prompt trial.

We conclude, therefore, that Prince effectively notified Alabama authorities, at the earliest by October 1963 and at the latest by July 1968, of his desire for resolution of the charges pending against him. Yet he was not returned to Alabama for trial until February 1971.

C. Reasons for the Delay

The Alabama Court of Criminal Appeals and the district court below found two basic reasons for the delay in bringing Prince to trial during the period of his incarceration in the California prisons. First, they opined that Prince was not “available” to Alabama authorities until his release by the State of California in 1971. Second, they found that Prince had himself caused postponement of his release from CDC by his failure to accept the conditions of his parole, e. g. extradition to Alabama for trial. The courts further found that Prince had refused to waive extradition to Alabama throughout the period 1964 — 70.

Regarding Prince’s availability to Alabama officials, the Court of Criminal Appeals ruled:

[F]rom 1962 through 1971, the State of Alabama had made some thirteen separate requests of California, seeking information as to the early release of the appellant to the State of Alabama for trial. Each of these indicated that the State of Alabama would forward the necessary extradition papers in the event that the appellant would not waive same, and such extradition would be at the expense of the State of Alabama. * * * [T]he State of California at no time had indicated that the appellant would be made available for trial in Alabama prior to releasing the appellant in 1971.
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[I]t is clear that the State of Alabama had no opportunity to exercise its jurisdiction over the appellant until his return to the State of Alabama in 1971; . . .. 279 So.2d at 544-545.

The Supreme Court in Smith v. Hooey, supra, has made it abundantly clear that the concept of “availability” embodied in the above-quoted portion of the Alabama court’s opinion is an erroneous one. Quoting from its previous term’s decision in Barber v. Page, 1968, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, the Court ruled in Smith:

“In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.
“By a parity of reasoning we hold today that the Sixth Amendment right to a speedy trial may not be dispensed with so lightly either. Upon the petitioner’s demand, Texas had a constitutional duty to make a diligent, good-faith effort to bring him before the court for trial.” Id., 393 U.S. at 382-383, 89 S.Ct. at 579, 21 L.Ed.2d at 613-614.

We find no evidence in the record to indicate that the State of Alabama made any such “good-faith” effort to secure Prince’s presence for trial prior to the date of his scheduled release from the CDC. The Alabama Court of Criminal Appeals emphasized that the State had written California authorities on thirteen separate occasions during the period of Prince’s incarceration there seeking information as to Prince’s “availability” for extradition, and that California’s response was uniformly: “We will let you know when he is available.”

This characterization misses the point underscored by the Court in Smith v. Hooey, supra. Under Smith and subsequent cases Alabama had a constitutionally imposed duty to take affirmative action to secure Prince’s return for trial. Mere inquiries about release and availability are not compliance with this duty. Attempts at extradition or the issuance of a writ of habeas corpus ad prosequendum by the Alabama courts would have been in the nature of such affirmative action. The record reveals no such attempts of this nature.

The State argued on appeal that such attempts, if undertaken, would have been futile. Again, under Smith v. Hooey, supra, this is not enough. There,' the Court, quoting Judge Aldrich of the First Circuit, noted: “ ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff.’ ” Id. at 382, 89 S.Ct. at 579, 21 L.Ed.2d at 614.

Finally, we find that the Alabama appellate court and the district court were wrong as a matter of law in concluding that Alabama had discharged its constitutional duty to attempt to secure Prince’s presence for trial.

The second ground relied upon by these courts below as a basis for finding that the delay in procuring Prince for trial was not attributable to the State of Alabama was the finding that Prince had refused during the period of his incarceration to accept parole subject to extradition to Alabama and had refused to waive extradition to Alabama. Our independent examination of the record below discloses only one such instance of refusal, occurring in December 1970. At this time Prince refused to accept parole subject to return to the CDC upon his ultimate release by Alabama authorities. This resulted in a two-month delay in Alabama’s gaining custody of Prince. It is clear that Prince’s motive in refusing parole at this juncture was not to frustrate his return to Alabama. He sought merely to ensure that he would not have to be returned to the State of California upon disposition of matters in Alabama. In fact, Prince waived extradition to Alabama once the matter of his return to California was resolved to his satisfaction.

The only possible alternative basis for a conclusion that Prince followed a course of refusal of extradition or parole is a comment made by Prince in a letter sent to an attorney in California whose assistance he sought. The passage from which the comment was taken, as quoted by the Alabama Court of Criminal Appeals, 279 So.2d at 548 n. 10, reads in pertinent part:

I never been before a judge, where any question of extradition was spoken of. And for that matter I have never signed any papers as to my agreeing upon going back to Alabama. The only times the questions of this nature were' spoken to me was at my parole hearing, with the members of the parole board. At that time I made the statement that I would die before I be sent back to Alabama.

In our opinion, this statement does not “fairly support” the Alabama court’s finding that: “On each occasion that appellant appeared before the California Parole Board ... he advised the California authorities that he would not waive extradition to Alabama.” 279 So.2d at 544 n.6.

Preliminarily, a reading of the complete letter from which the excerpt quoted above comes reveals Prince’s conviction that, as a matter of law, Alabama had lost jurisdiction to try his case. Prince states:

Alabama was supposed to sentence me and then [sic] turn me back over to the state of california to be sentenced. I should be doing a sentence for Alabama if I had been convicted there with a hold from California.
Alabama had original jurisdiction. Under these laws I have been in prison more than 5 years; in calif, therefore I believe Alabama has lost jurisdiction to try me or convict me. I would like very much to know what you think.

Viewed in context, Prince’s comment that he would die before being returned to Alabama, assuming that the statement indicates unwillingness to return to Alabama, could simply be a statement of his determination to assert his legal right not to be returned to Alabama for trial. This ambiguity robs the statement of whatever slender probative value it may have had.

In addition, the State had the burden of showing that Prince had, by his actions, actually frustrated his return to Alabama for trial. Mere citation of this comment from Prince’s letter, without more, is clearly insufficient to discharge that burden. Accordingly, we rule that the Alabama court’s finding that Prince thwarted attempts to secure his return to the State of Alabama is not in fact “fairly supported” by the record, and is entitled to no weight here. Title 28 U.S.C. See. 2254(d)(8).

Our conclusion, then, is that the primary reason for the delay in bringing Prince to trial in Alabama was the failure by Alabama authorities to initiate meaningful efforts to secure this result. We need not speculate as to the possible success of such efforts. State authorities were under a constitutional duty to undertake them. Failure to do so, in the face of Prince’s assertion of his speedy trial right, and with the consequent delay in Prince’s trial, constituted a deprivation of Prince’s right to speedy trial. We so hold.

D. The Question of Prejudice

While we are not compelled to consider the question of prejudice by reason of our holding in Hoskins III, note 4, supra, 485 F.2d 1186, 1192, that prejudice is immaterial where consideration of the other three factors — length of delay, defendant’s assertion of his right, and reasons for the delay — coalesce in the defendant’s favor, we make the following observations. We begin with the premise that the speedy trial right is designed to protect against two distinct types of prejudice — “prejudice to [the] defendant’s defense and prejudice to [the] defendant’s person.” Lagging Right, supra, note 2, at 1593.

Prejudice to the defendant’s defense goes to the reliability and integrity of the fact finding process. Prince claims that his defense has been impaired due to the lapse of time both in the disappearance or death of key alibi witnesses and in the dimming of the memories of those witnesses who were available at trial. Without reaching the merits of this claim — which was not ruled upon by the State court or the court below — we simply note that, under our prior holding in Hoskins I, supra, 440 F.2d 69, 72, where the defendant has established a prima facie case of denial of the speedy trial right, the burden is upon the State to show that the defendant has not been prejudiced by the delay.

Prince has a further claim to personal prejudice resulting from the pendency of the Alabama charges against him and the lodging of the detainers with the CDC. Prince had asserted to Jefferson County officials as early as October 1963 that the pendency of the detainer against him was having an adverse effect upon his being considered for the most favorable rehabilitation and parole programs offered by the CDC. Further support for this claim was provided in two letters written to Jefferson County officials by a representative of the “7-Step Foundation,” a California organization apparently dedicated to assisting CDC inmates in obtaining and keeping favorable parole and work-release programs. According to the correspondence from “7-Step,” Prince had received vocational training as a nurse and had been assured by the State of California that he would be offered a job in one of its mental institutions upon his release from CDC — subject to disposition of the pending Alabama charges. Apparently this opportunity was lost to Prince as a result of Alabama’s failure to afford him a speedy trial.

“7-Step” also indicated in its correspondence that Prince’s custody status in the CDC was being held at medium security because of the pending detainers and that Prince was therefore ineligible for part-time, work-release programs offered by the CDC. We notice finally the possibility that had Prince been accorded a speedy trial on the Alabama charges, it was at least possible that his sentence might have run in part concurrently with his California sentence. That possibility was forever foreclosed by Alabama’s election to postpone prosecution until Prince’s release from the CDC.

Conclusion

To summarize, we find that: (i) the appellant effectively asserted his speedy trial right, at least as early as July 1968; (ii) that an unreasonable period of 2V2 years delay followed this assertion before the appellant was taken into custody by Alabama officials; (iii) that the delay is attributable solely to the failure of Alabama officials to make a “diligent, good-faith effort” to secure the appellant’s presence for trial prior to his release by California authorities, and (iv) that Prince has been prejudiced by the delay. For these reasons we hold that the appellant was denied his Sixth Amendment right to a speedy trial, enforceable upon Alabama through the Due Process Clause of the Fourteenth Amendment. The remedy must be his release from State custody on the robbery charges on which he is now imprisoned.

Accordingly, the judgment of the district court is reversed, and the case remanded with directions that the writ of habeas corpus issue forthwith directing Prince’s discharge from custody.

Reversed and remanded.

      . See Prince v. Alabama, 5 Cir. 1973, 476 F.2d 298, and Prince v. Bailey, 5 Cir. 1972, 464 F.2d 544. Jurisdictional grounds prevented consideration by this court of the merits of Prince’s claim to relief on those prior occasions, as the text, infra, relates.

      . See, Note, The Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587 (1965) (hereinafter cited as Lagging Right).

      . The historical origins of the right have been adequately discussed elsewhere and require no restatement here. See, e. g., Klopfer v. North Carolina, 1967, 386 U.S. 213, 223-226, 87 S.Ct. 988, 993-995, 18 L.Ed.2d 1, 8-9; Petition of Provoo, D.Md.1955, 17 F.R.D. 183, 196-197; Lagging Right, supra, note 2, at 1594.
      For general discussions of the right, see J. Godbold, Speedy Trial — Major Surgery for a National 111, 24 Ala.L.Rev. 265 (1972); Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476 (1968) (hereafter cited as Note, Speedy Trial); Lagging Right, supra, note 2.

      . See also Strunk v. United States, 1973, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56; Braden v. 30th Judicial Circuit Court, 1973, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443; Dickey v. Florida, 1970, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; Hoskins v. Wainwright, 5 Cir. 1971, 440 F.2d 69 (Hoskins 1), after remand, 1972, 472 F.2d 158 (Hoskins II), on rehearing, 1973, 485 F.2d 1186 (Hoskins III). For a general discussion of the applicability of the speedy trial right to the convict, see Note, Effective Guaranty of a Speedy Trial for Convicts in Other Jurisdictions, 77 L.J. 767 (1968) hereinafter cited as Effective Guaranty).

      . Mr. Justice Powell in Barker v. Wingo essentially restated the approach which other courts and commentators had recognized as the crucial considerations in adjudicating claimed denials of the speedy trial right. See, e. g., United States v. Auerbach, 5 Cir. 1969, 420 F.2d 921, 924 (per curiam); United States v. Mann, S.D.N.Y.1968, 291 F.Supp. 268; Note, Speedy Trial, supra, note 2, 20 Stan.L. Rev. at 478.

      . We held, for example, in Hoskins III, supra, that a showing of prejudice would be unnecessary where the findings as to the other three factors coalesced in the defendant’s favor. 485 F.2d at 1192. On this approach, see generally The Supreme Court, 1971 Term, 86 Harv.L.Rev. 50, 164-71.

      . See Barker v. Wingo, 407 U.S. at 524-528, 92 S.Ct. at 2188-2189, 33 L.Ed.2d at 113-115; Bruce v. United States, 5 Cir. 1965, 351 F.2d 318, cert. denied 384 U.S. 921, 86 S.Ct. 1370, 16 L.Ed.2d 441. But see Murray v. Wainwright, 5 Cir. 1971, 450 F.2d 465, 469.

      . In Strunk, the defendant had indicated to Federal Bureau of Investigation agents that he intended to assert his speedy trial right by moving for trial under F.R.Crim.P. Rule 20. In anticipation of this motion, it appears that the prosecution delayed initiation of any action against the defendant for a period of several months. The Court of Appeals ruled that the defendant had been denied his right to a speedy trial due to the delay and ordered that the defendant be credited with time served during the delay toward fulfillment of his sentence. The defendant appealed and argued that the remedy should have been dismissal, not merely credit for time served. The government, however, took no cross-appeal from the Court of Appeals’ speedy trial ruling. The speedy trial issue thus was not before the Supreme Court.

      . Consideration of the Supreme Court’s discussion in Barker, supra, 407 U.S. pages 523-530, 92 S.Ct. 2188-2192, 33 L.Ed.2d 52-57, of its reasons for adopting a balancing test and its consequent rejection of the two prior inflexible approaches, (a) the fixed time period, and (b) the demand-waiver rule, convinces us that it is no longer appropriate, if it ever was, to draw a distinction between requests addressed to the prosecutor and demands made upon the court in determining whether a sufficient assertion of the constitutional right to speedy trial has occurred.
      The Supreme Court in Strunk, supra, though not dealing with the question directly, implied that demands addressed to prosecuting officials are sufficient to assert the right. Accord, Wylie v. Wainwright, S.D.Fla.1973, 361 F.Supp. 914, 916.
      In our view it now suffices to assert the right either to court or to prosecution, and we find no reason to adopt a rigid rule as to the form of the demand to be made. Relevant factors to be considered in determining the sufficiency of the accused’s attempts to assert his speedy trial right should include whether he had the assistance of counsel and whether he was properly advised, by counsel or otherwise. Barker v. Wingo, supra, 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 116. Consideration of these factors differentiates the approach followed by the Second Circuit in United States v. Lustman, 2 Cir. 1958, 258 F.2d 475, cert. denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109, where the accused was on bond and assisted by counsel during the period of delay, and the approach taken by the Ninth Circuit in Chauncey v. Second Judicial District Court, 9 Cir. 1973, 474 F.2d 1238, 1239, where the accused had no counsel and was incorrectly advised by Arizona prison authorities as to the county in Nevada where charges were pending against him.
      The record in the instant case gives no indication that Prince received the effective assistance of counsel in his attempts to deal with the Alabama authorities. He was advised by a Berkeley, California, attorney, whose assistance he sought unsuccessfully, that he should attempt to have the Alabama charges dismissed rather than attempt to litigate the constitutional issue (apparently referring to the speedy trial issue). Prince was incarcerated across the continent from the jurisdiction where the charges were pending and lacked the effective assistance of counsel. This is not to intimate that Prince received no benefit from the Hastings law student who assisted him in the California district court. Rather, we are concerned here with Prince’s dealings with Alabama authorities charged with the responsibility for his prosecution.

      . See the discussion of prejudice at note 15 and accompanying text, infra. See also Effective Guaranty, supra, note 4, 77 Yale L.J. at 767, and Lagging Right, supra, note 2, 51 Va.L.Rev. at 1607.

      . See the cases cited in note 4, supra.

      . The Alabama Code specifically provides for extradition, at the initiation of the Governor, of individuals located outside the jurisdiction of the Alabama courts. Code of Ala., Title 15, Sec. 70 et seq. (1959). Prince, in fact, wrote a letter to the Governor, and, although he did not request that he be extradited, it is reasonable to expect that some further inquiry into the possible need for extradition might have been forthcoming. There was no follow-up other than forwarding a copy of the letter to the solicitor in Jefferson County, text, supra.

      . It will be recalled that Prince’s motion to dismiss the information, sent to the Jefferson County solicitor, was never brought to the attention of the Circuit Court in Jefferson County. Nevertheless, Prince filed a similar motion in the Alabama Supreme Court, again claiming denial of the right to a speedy trial. While the record does not disclose precisely the outcome of this motion, which was also titled a “Petition for Writ of Mandamus,” for aught that appears it was denied without comment.

      . It is not at all clear that this is the intent of the statement. Prince may have been expressing his opinion that, because of the delays that he had experienced in obtaining resolution of matters in Alabama, he would die of old age before he would be returned to Alabama.

      . On the arguments for and against requiring a showing of prejudice, see generally Note, Speedy Trial, supra, note 3, 20 Stan.L.Rev. at 493-94; Lagging Right, supra, note 2, 51 Va. L.Rev. at 1592. Guided at this juncture by our holding in Hoskins III, we are under no obligation to pursue the matter further.

      . One commentator has observed:
      With the exception of the due process clause, no procedural safeguard in the Bill of Rights designed to ensure the reliability of the guilt-determining process other than the right to a speedy trial requires a defendant to show actual prejudice in order to establish a violation of that safeguard. Note, Speedy Trial, supra, note 3, 20 Stan. L.Rev. at 493-94.

      . Perhaps the impact of the delay and its attendant frustration upon Prince is best described in his own words. The following is an excerpt from a letter addressed to the federal district judge in whose court in California Prince was pressing for habeas corpus relief shortly before his release to Alabama authorities:

        Dear Sir:
      I am writing you because I am very concerned and somewhat disappointed and almost discouraged with the people who enforce the constitution in this country. For eight long years I have been trying to get to trial on the charges that are pending on me in Alabama. I have exhausted all State remedies in the State of Alabama and the State of California. I was recently given a parole (to hold) after eight years in the penitentiary. I cannot make a positive parole plan until you act on this case, I cannot even go on the Work Furlough program, no one wants to give me a job because they cannot know whether I will be sent back to Alabama or remain in California on parole. I feel that the courts have been playing a game with me for over eight' years and I can’t help but feeling that this Federal court is playing the same game. Somehow I am under the impression that the constitution means nothing any more, and if I tell you that I have no bitterness for the way the courts have treated me for the past eight years, I would be lying. I can’t help from wondering whether or not the Constitution applies to the “have nots”, or if a gun and revolution is really the answer, for the “have nots” to benefit by the law, be recognized as a man, decide their own destiny and cast their own shadow. In my heart I pray that this is not the answer, because I think our country has seen enough blood, but if there is no other way, I too will say “on with the revolution.” I have seen poor people, black, white, mexican and all other ethnic groups, run through a court room like clothing run through a washing machine, denied their constitutional rights, and it seems that no one cares, not even the people who enforce the constitution of our land. I pray to God that some Judge will understand that which is happening today and do something about the situation. My final prayer is: rule one way or the other, deny me, or give me my constitutional rights.


author: PER CURIAM:

text:
    Willie Earl LIPSCOMB, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-2944
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 30, 1975.

      Willie Earl Lipscomb, pro se.
    John L. Hill, Atty. Gen., Austin, Tex., Randall S. Boyd, Asst. Atty. Gen., Dallas, Tex., Joe B. Dibrell, Chief, Enforcement Div., Austin, Tex., for respondent-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

A state court jury convicted Willie Earl Lipscomb of robbery by assault. The jury assessed imprisonment for thirty five years. The complaining witness in the case was accosted at gunpoint by a number of youths, including Lipscomb. She and a male companion were forced into the rear of her car. They were driven to a barren area in Dallas County, where she was raped and her companion shot, so that he died the next day. The car was taken by the youths and subsequently found abandoned.

On direct appeal, Lipscomb’s convic.tion was affirmed, Lipscomb v. State, Tex.Cr.App.1971, 467 S.W.2d 417.

Lipscomb was tried jointly with one Melvin George Nash, whose conviction also was affirmed, Nash v. State, Tex.Cr. App.1971, 467 S.W.2d 414.

His contentions being state exhausted on direct appeal, Lipscomb began anew with federal habeas corpus. The District Court denied relief, Lipscomb again appeals, and we affirm.

We shall discuss appellant’s alleged constitutional deprivations, point by point.

There is nothing to his complaint about the admission of “extraneous evidence”. The State Appellate Court found, with all propriety, that the rape and the murder were so inseparably interwoven with the robbery as to be a part of the same transaction and admissible as res gestae. Gephart v. Beto, 5 Cir., 1971, 441 F.2d 319; Heads v. Beto, 5 Cir., 1972, 468 F.2d 240.

The complaint about remarks of the trial court are equally lacking in merit.

The same is to be said for the complaint as to the admission of a portion of Nash’s confession, which never mentioned Lipscomb.

The last of the series of complaints is addressed to the following jury argument of the prosecutor:

I thought that with the two of them talking here, that maybe one of them would say that their client was innocent, but I never heard that, and it seems to me that if I were trying the wrong man, or if I were called upon to defend somebody and had the wrong man or had someone who didn’t commit the crime, you would stand up before twelve jurors and say, this man is innocent.

The Texas Court of Criminal Appeals appraised this incident as follows (467 S.W.2d 420):

In the case at bar, which was being tried upon a plea of not guilty, it is apparent that the prosecutor was referring to counsel and there is no allusion to the appellant. To constitute error the argument would, of necessity, need be understood by the jury as a comment on the appellant’s failure to' testify. Earl v. State, 170 Tex. Cr.R. 540, 342 S.W.2d 328; Galyean v. State, 156 Tex.Cr.R. 412, 243 S.W.2d 30.

The objection to this argument, entered by defense counsel, was that “a man is presumed innocent until a jury finds him guilty”. The Court had previously told the jury that “what counsel from either side says is no evidence”.

We agree with the Texas Court of Criminal Appeals that the argument was not a comment upon the failure of the defendant to testify. We have read the argument of counsel as it appears in the trial record and we note that defense counsel saw fit to comment extensively, in as favorable light as possible, on the failure of the defendant to testify in his own behalf.

If the argument was intended to assert that defense counsel should have vouched for the innocence of his client, it was improper. Nevertheless, counsel did not object on that ground and asked for no admonition in that respect.

An appraisal of the arguments, which appear at times to have grown rather acrimonious, leads us to the conclusion that in any event the episode was not so fundamentally unfair as to deny the defendant due process.

The denial of habeas corpus relief is Affirmed.


author: DONALD RUSSELL, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. James Edwin SMITH, Appellant.
    No. 74-1532.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 8, 1974.
    Decided Dec. 23, 1974.

      Halbert T. Dail, Norfolk, Va. [court-appointed] (Kanter, Kanter & Dail, Norfolk, Va., on brief), for appellant.
    J. Brian Donnelly, Asst. U. S. Atty. (David H. Hopkins, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

The defendant, convicted of mail fraud, seeks by this appeal a new trial. Among other claims of error, he assigns error in the limitation placed by the District Judge on the admission of evidence on his defense of insanity. We agree and reverse.

At trial the sole defense raised by the defendant was a want of criminal intent by reason of insanity. Whenever insanity is asserted as a defense and is supported by any credible evidence, “it is of critical importance that the defendant’s entire relevant symptomatology be brought before the jury”, or, as stated in another recent case, quoting Wigmore, “when insanity is in issue, ‘any and all conduct of the person is admissible in evidence.’ ” To this end, the trial judge should permit “an unrestricted inquiry into the whole personality of a defendant” and should “be free in his admission of all possibly relevant evidence.” Any evidence of aberrant conduct or action, whether before or after the act charged, is accordingly admissible under the plea.

In support of his plea of insanity, the defendant asserted that he had been subject often to recurring and intermittent periods of aberrant conduct, evidencing disorientation from reality and impairment of behavior control on his part. This claim was supplemented by expert testimony to the effect that the defendant, as characterized by a psychiatrist witness, was a “manic depressive” type, given to paranoid ideas of sexual prowess and financial grandiosity, and, in the language of an expert psychologist, was suffering from a “schizo-affected disorder” productive of alternating periods of affected excitement and depression impairing his judgment and rationality. The value of this expert testimony, however, depended on the evidence of the defendant’s actual abnormal behavior and conduct during these periods when he claimed to be detached from reality. The important testimony on the defendant’s plea accordingly dealt with the episodes when the defendant had exhibited abnormal behavior and it was essential, if Chandler were to be followed, that the defendant be given the opportunity to develop fully and completely his conduct during these episodes of abnormal behavior so that the jury could determine for itself their nature and the defendant’s rationality during them. The trial court in most instances, it is true, permitted the defendant, through testimony, to identify the specific periods when the defendant had seemingly lapsed into a world of unreality and delusion. Thus, it allowed the defendant to show that he had on three occasions prior to the acts charged, appeared publicly in Washington — in full formal dress on one occasion — claiming that he was the fiancé of a prominent woman, who, incidentally, was completely unknown to the defendant. However, in a number of important instances where the defendant was attempting to spell out in detail his irrational conduct the trial court confined the defendant’s presentation to an abbreviated account representing often only a sparse characterization of his conduct. This disposition of the court is illustrated by its ruling on the examination used by the defendant while he was employed to teach a course in business law at Hampton Institute. The testimony of the defendant’s superior at the school was that the examination as used by the defendant had absolutely no relationship to the course which was supposedly covered by the examination. In order to demonstrate this fact and to establish that at the time the defendant was laboring under a delusion as to the course being taught, the defendant sought unsuccessfully to secure the introduction into evidence of the actual examination itself. In rejecting the examination itself the trial court denied improperly to the defendant the right to develop adequately proof of his aberrant conduct on this occasion by the best evidence of it. The trial court similarly circumscribed too narrowly the defendant’s evidence of other periods of abnormal behavior on his part. Undoubtedly, the trial court in its rulings was seeking to expedite the trial. This procedure is normally to be commended. But where the plea is insanity, the goal of expediting the trial must not be allowed to interfere with the defendant’s right to develop fully and completely the many complex and ■ often tenuous circumstances that may shed light on his plea. This is the command of Chandler. It was not observed here and a new trial is required.

The defendant has raised other claims of unfairness in the trial but it is unnecessary to examine these claims in view of our determination that a new trial is required.

Reversed.

      . 18 U.S.C. § 1341.

      . The rule as to insanity, adopted in the definitive opinion of Chief Judge Haynsworth in United States v. Chandler (4th Cir. 1968) 393 F.2d 920, 926, is as stated by the American Law Institute in its Model Penal Code:
      “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
      “(2) The term[s] ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.”
      Thus, the two issues posed by the plea are (1) the existence of mental disease or defect and (2) its meaningful relationship to the incident charged as an offense. For the distinction between mental disease and mental defect, see United States v. Brawner (1972) 153 U.S.App.D.C. 1, 471 F.2d 969, 977.

      . Gordan v. United States (5th Cir. 1971) 438 F.2d 858, 883, cert. denied 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56.

      . United States v. Brawner (1972) 153 U.S.App.D.C. 1, 471 F.2d 969, 976.

      . United States v. Chandler (4th Cir. 1968) 393 F.2d 920, 926.

      . Pope v. United States (8th Cir. 1967) 372 F.2d 710, 736, remanded on other grounds 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317.

      . Davis v. United States (10th Cir. 1966) 364 F.2d 572, 574.