Use of the Statement of Facts to advance one's case; illustrative examples.

• Jurisdiction: United States

Section 27. Use of the Statement of Facts to advance one's case; illustrative examples.—The application of the foregoing techniques will perhaps be more clearly perceived by examining, not examples from different cases, but comparative instances from successive stages of the same case.

In Von Moltke v. Gillies,⁴⁶ the question raised in a habeas corpus proceeding was whether petitioner had freely, intelligently, and knowingly waived her right to the assistance of counsel, and whether she had freely, intelligently, and knowingly pleaded guilty. Her contention was that she had been induced to plead guilty by an F.B.I. agent who, so she alleged, had, by misinforming her as to the law, convinced her that she would be found guilty if she went to trial. The habeas corpus judge had found against her, the circuit court of appeals had affirmed, and she sought certiorari.

The difficult feature of the case, from the Government's point of view, was the dissenting opinion in the C.C.A., which had espoused and believed the petitioner's story.⁴⁷ Moreover, the F.B.I. agent had not been a good witness; his denials left something to be desired.⁴⁸ The strong points of the case, for the Government, were the favorable findings of the habeas corpus judge; the strong indications in the record that petitioner's story had originally germinated in the otherwise unfertile atmosphere of the House of Correction; and the fact that petitioner was, throughout, repeatedly contradicted, by other witnesses as well as by herself.

The Brief in Opposition to the petition for certiorari was written under the pressure of meeting a deadline,⁴⁹ and in the rush incident to the end of the particular term of court. The Statement of Facts which that document contained did not, therefore, succeed in dispelling the unfavorable impression produced by the dissenting opinion below, and accordingly certiorari was granted.

Preparation of the Government's brief on the merits, however, could proceed in the comparative leisure of the summer "vacation." In the new Statement of Facts, the relevant facts in the record were first divided into undisputed and conflicting evidence, and the latter heading was broken down into some seven separate incidents.

Those incidents were taken up, witness by witness, and were set out in such a way as to emphasize the innumerable instances wherein petitioner contradicted herself or was contradicted by others. The Statement of Facts, which had covered some 15 pages in the Brief in...