509 F.2d 334
37 A.L.R.Fed. 473, 166 U.S.App.D.C. 1
UNITED STATES of America
James W. McCORD, Jr., a/k/a Edward J. Warren a/k/a Edward J.
United States Court of Appeals,
District of Columbia Circuit.
Argued En Banc June 14, 1974.
Decided Dec. 12, 1974.
Certiorari Denied April 21, 1975.
See 95 S.Ct. 1656.
Bernard Fensterwald, Jr., and William G. Ohlhausen, Washington, D.C., for appellant.
Sidney M. Glazer, Counsel to the Special Prosecutor, with whom Leon Jaworski, Special Prosecutor, Philip A. Lacovara, Counsel to the Special Prosecutor Maureen E. Gevlin, David H. Kaye and Robert L. Palmer, Asst. Special Prosecutors, were on the brief, for appellee.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON, and WILKEY, Circuit Judges, sitting en banc.
BAZELON, Chief Judge:
James McCord was arrested by Washington, D.C. police with four other persons at approximately 2:00 a.m. on June 17, 1972 in the offices of the Democratic National Committee at the Watergate Office Building. McCord had on his person or in his control documents removed from the files of the Democratic National Committee, burglary tools, electronic wiretapping and eavesdropping devices and a small mace dispenser. Along with G. Gordon Liddy, McCord was tried before a jury commencing on January 8, 1970 and was convicted on January 30 of three counts of illegal interception of oral and wire communications, two counts of possession of intercepting devices, two counts of burglary, and one count of conspiracy to commit the foregoing offenses. He has filed a petition seeking collateral relief from that conviction as well as an appeal from the sentence entered by the District Court on November 9, 1973.
We affirm McCord's conviction in its entirety. In Part I of our opinion, we discuss certain procedural issues created by the pendency of both an appeal and a petition for collateral relief. (Pp. 339--342). In Part II, we review McCord's claim that he deserves a new trial on the basis of newly discovered evidence and his claim that he has been subjected to a selective prosecution. We conclude that he has no valid defense to which this newly discovered evidence would be relevant (pp. 342--343) and alternatively, that the newly discovered evidence would not create a reasonable doubt about McCord's guilt. (Pp. 343--346). We furthermore hold that he has not timely asserted and has therefore waived his claim of selective prosecution. (P. 346). In Part III, we consider McCord's claim that Judge Sirica's allegedly 'inquisitorial' conduct of McCord's trial is grounds for a new trial. We conclude that this claim is without merit. (Pp. 346--348). In Part IV, we proceed to review McCord's most important contention: that serious prosecutorial misconduct during his trial was so repugnant to civilized notions of criminal justice that his indictment should be dismissed. We reject this contention. (Pp. 348--351). Finally, in Part V, we address McCord's claim that he has been denied the effective assistance of counsel and find this ground for reversal is without merit. (Pp. 351--353).
I. The Procedural Context of McCord's Claims of Error.
On June 8, 1973, better than four months after his conviction and five months before his sentence, McCord moved the District Court for relief 'in the nature of' a writ of error coram nobis, seeking a new trial on various grounds and also, in the alternative, a judgment of acquittal. While coram nobis is available to McCord in these circumstances, we take, as does the Special Prosecutor, the part of his motion requesting a new trial on the basis of newly discovered evidence as filed under Fed.R.Crim.P. 33 since that Rule permits such a motion within two years of final judgment and may involve a lesser standard of proof than coram nobis. The writ is available for that part of McCord's motion seeking a new trial on grounds other than newly discovered evidence or alternatively a judgment of acquittal. However, we construe McCord's major arguments for acquittal as directed to defects in the indictment and thus actually request a dismissal of the indictment and not technically a judgment of acquittal. We see no reason in the nature of coram nobis or the principle of collateral relief generally which would prevent coram nobis from being used to obtain dismissal of an indictment. Accordingly, we hold that the writ may be properly used to seek dismissal of McCord's indictment. McCord also appeals from the judgment of guilty and sentence entered on November 9.
With the exception of the claims discussed in Part III infra, McCord did not raise any of the claims at trial that he now presses in this appeal. Thus, we cannot decide these claims on McCord's appeal from his sentence unless we find that the District Court's failure to rule on these claims on its own motion was plain error. The individual views of the author of this opinion on the plain error rule are set out in the margin. These various claims, which McCord asserts now on appeal, could be reached under the writ of error coram nobis. However, coram nobis, like § 2255 and the writ of habeas corpus, may collaterally attack only constitutional or jurisdictional errors or serious defects in the trial either not correctible on direct appeal or where exceptional circumstances justify the failure to appeal on those grounds. Here McCord does appeal on the appropriate grounds but he cannot have us hear the appeal unless the claim is plain error since he did not raise the claims below. In order to accommodate the pendency of the appeal and the claim for collateral relief, we apply similar standards to determine whether a claim of error should be reached under principles of plain error and whether that claim may be reached under principles applicable to collateral relief. This ruling relates to a consolidated appeal and is not intended as an en banc ruling that any error that might have been noticed on the direct appeal under the plain error rule as a ground for reversal also warrants the granting of relief on collateral attack. A conceptually distinct issue is whether McCord has deliberately by-passed his remedies at trial or waived his claim to relief at trial such that he cannot press such a claim on his appeal or in his petition for collateral relief.
II. The Claims Based on Newly Discovered Evidence and the Alleged Selective Prosecution.
McCord's motion for a new trial on the basis of newly discovered evidence encompasses three general claims. First, he presents a straightforward claim that new evidence which bears on his guilt or innocence has been discovered and standing alone it justifies a new trial. Second, he claims that this new evidence was within the control of the prosecution and thus he deserves a new trial under the principle of Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Third, he claims that the prosecution not only failed to disclose this evidence relevant to his guilt or innocence but actually used perjured testimony to obtain his conviction.
McCord points to four particular areas in which new evidence has been developed which could be relevant to his trial. First, McCord directs our attention to the fact that Jeb Magruder, deputy director of the Committee to Re-elect the President, and Herbert Porter, also associated with that Committee, have both admitted that they perjured themselves at McCord's trial when asked whether they authorized or had knowledge of McCord's illegal entry into the Democratic National Committee offices. Second, McCord notices that former Acting Director of the FBI, Patrick Gray, has admitted destroying materials relating to the authorization of the break-in and that certain persons, possibly including John Dean, Counsel to the President, destroyed the contents of coconspirator Howard Hunt's safe in the White House, material which also might be relevant to the authorization of the burglary. Third, new evidence has come forward concerning the role of Howard Hunt and Gordon Liddy, co-conspirators with McCord in the Watergate entry, in the White House Special Investigations Unit, evidence allegedly relating to a domestic security justification for the Watergate break-in. Fourth, McCord claims there is other newly discovered evidence, largely on the various tape recordings of conversations between former President Richard Nixon and his subordinates, which directly implicates John Mitchell, former Attorney-General of the United States, and persons formerly in the White House in the authorization of the Watergate break-in.
McCord's claims relating to the existence of newly discovered evidence and the prosecution's failure to disclose that evidence are really two sides of the same coin and both may be disposed of by the same reasoning. Unless the newly discovered evidence not disclosed by the prosecution would create in either our minds or the minds of the jury 'a reasonable doubt about appellant's guilt', neither the existence of newly discovered evidence nor the prosecution's failure to disclose it is grounds for a new trial. In McCord's case, this newly discovered evidence not disclosed by the prosecution is simply not relevant at all to the basic issue at his trial: did he or did he not break into the offices of the Democratic National Committee with the intent to install or remove wiretaps and in concert with other individuals. Indeed, the evidence on that issue is virtually conceded by McCord. The only possible issue in a new trial to which this newly discovered evidence could be relevant is a defense that McCord's actions were justified by his belief that the actions were authorized by the Attorney-General of the United States or the Counsel to the President of the United States.
Assuming arguendo, that a reasonable belief in authorization would be a defense to McCord's actions, we find that McCord may not raise this defense via coram nobis and we will not reach it on the basis of plain error. In regard to plain error, we find that the factual basis of McCord's claim is not established on the basis of the trial record and therefore the trial judge was not in error in failing to raise the defense on his own motion. And, as will be developed below, the newly discovered evidence relating to the defense is not sufficient to raise a reasonable doubt in either our minds or the minds of the jury about McCord's guilt. In regard to both the claim of plain error and the coram nobis petition, we note that a defense of belief in authorization, assumed for purposes of discussion, would in any event not be of constitutional magnitude and therefore its nonassertion by itself does not seriously impair the judicial process or constitute an error automatically reviewable under principles of collateral relief. Furthermore, McCord has presented us with no persuasive reasons why he did not assert this defense at trial such that his failure to so assert this defense should be excused. McCord is a well-trained, intelligent individual provided with competent counsel. He was given a full and fair opportunity at trial to raise all his defenses. It is clear from McCord's own statements that he knew of the possibility of a defense of reasonable belief in authorization and of whatever facts there might be that would support such a claim. Indeed, we would presume such knowledge from his allegation subscribed under oath that he did have a reasonable belief at the time of the break-in that his actions were authorized.
McCord's failure to raise the defense of authorization below is not excused by either the existence of newly discovered evidence or by the efforts of some government officials to coerce him to remain silent and plead guilty. Since the only relevant factual issue is whether McCord reasonably believed that he was acting pursuant to the authorization of the Attorney-General or Counsel to the President, an issue which must be largely determined by reference to facts in McCord's possession at the time of his actions, newly discovered evidence could a fortiori have only a tangential relation to this central issue. The newly discovered evidence discussed above does provide much more evidence that McCord was reasonable in believing that his actions were authorized but no more evidence that he actually did believe that his actions were so authorized. This newly discovered evidence is, thus, merely cumulative to evidence that McCord possessed at the time of the burglary and is not sufficient by itself to create in either our minds or the minds of the jury a reasonable doubt about McCord's guilt. Our finding on this point also disposes of McCord's collateral contention that his failure to raise the defense below was excused by the prosecution's failure to disclose this newly discovered evidence at the time of the trial.
We furthermore find that the concerted pressures brought to bear on McCord do not justify his failure to even raise the defense of reasonable belief in authorization. McCord alleges that certain government officials offered him clemency and substantial cash payments to remain silent about the involvement of others in the authorization of the burglary or to plead guilty. McCord also alleges that his attorney took part in these efforts. Finally, mcCord alleges that even if these pressures were not sufficient to prevent his own waiver, *345
the pressures did affect the actions of co-conspirators Hunt, Liddy and the Cuban-Americans, thus making it difficult for McCord to assert the defense of authorization in face of denials by the other co-conspirators. The short answer to these contentions is the following statement made by McCord, under oath and after receiving the advice of counsel, before the Senate Watergate Committee: 'Well, I had many conversations with Mr. Alch (McCord's trial counsel)
about the facts in the case, and the other principals involved and the decision of mine as to when to come forward with the information which I did was basically my decision and it was a day at a time decision on my part as to when was the proper issuance time to tell the facts on this case.' McCord did tell the facts of the case less than two months after the verdict in his trial in a letter to Judge Sirica and in May testified fully before the Senate Watergate Committee. He did not plead guilty. There is uncontroverted evidence in the record that McCord never told his counsel that his actions were justified by his belief that those actions were authorized by the Attorney-General or Counsel to the President. Furthermore, as is discussed in Part V below, there is insufficient evidence to even require a hearing as to whether McCord was denied the effective assistance of counsel. Finally, the fact that other defendants might perjure themselves is an insufficient
justification for McCord's failure to even raise the defense when viewed in light of McCord's statements that the decision not to assert the defense was voluntary. If McCord had made any effort, however, slight, to raise this defense with his attorney or before the District Court, we might take a different view of the matter. Confronted with McCord's own lack of diligence and his own statements that he was not coerced, we can only conclude that McCord knew full well the consequences of his failure to raise the defense and knowingly chose this course of action. We cannot excuse his failure to even raise the defense below and, therefore, no 'exceptional circumstances' exist to justify this Court in considering the defense at this time.
McCord's claim relating to perjury at his trial by Magruder and Porter stands on a different ground. That claim incorporates two principles: first, there is the principle of actual prejudice by reason of the use of the perjured testimony and second, there is the principle of a fair and honest criminal process. The first principle is not applicable to McCord's case for the reasons discussed above. Even if Magruder and Porter had testified truthfully about their part in the authorization or their knowledge of the break-in, we still would not have a reasonable doubt about McCord's guilt. The second principle is discussed in Part IV below and we postpone our discussion of that principle until that section of the opinion.
We also find that McCord deliberately by-passed his remedies at trial and thereby waived his selective prosecution claim. The claim is that the government has arbitrarily chosen to prosecute only private citizens for violations of the anti-wiretapping laws while not prosecuting government agents who violate the same laws. Alternatively, McCord argues that he was in fact a government agent and that he is the first and only government agent to be prosecuted under the anti-wiretapping laws. McCord does not allege that he did not know of this defense at the time of his trial, yet he did not assert it. Since all the facts upon which this defense is based were known to McCord at trial, he cannot claim that newly discovered evidence has prompted him to raise the defense now. McCord, as was stated above, was given a full and fair opportunity at trial to raise all his defenses. The only real reason McCord offers for this failure to raise the defense below concerns the alleged disloyalty of his counsel. However, McCord has not alleged facts sufficient to even require a hearing into his allegations of disloyalty. Finally, the applicability of the defense to the facts of this very extraordinary crime is doubtful, to say the least. While we will not infer a deliberate by-pass or waiver of remedies at trial from a silent record, this record conclusively demonstrates that McCord knew of the defense and intelligently chose not to assert it. There is thus no plain error in the failure of the District Court to consider the matter on its own motion.
III. Claims Relating to Judge Sirica's Conduct of the Trial
McCord seeks a new trial because, he claims, Judge Sirica exhibited a bias in favor of the prosecution and generally assumed an inquisitorial role in the conduct of the trial. While McCord does not specify any particular incidents of bias or inquisitorial attitude, a thorough search of the record reveals the following significant events at trial which arguably could fall within that description. First, Judge Sirica agressively examined Hugh Sloan, Treasurer of the Finance Committee to Re-Elect the President, outside the presence of the jury as to the amounts of money given to McCord's co-defendant, G. Gordon Liddy and, particularly, why part of it was laundered through Mexican banks. Second, Judge Sirica then read to the jury a transcript of his examination of Sloan which included a bench conference with McCord's attorneys. This examination reflected poorly on Sloan's credibility and indirectly called into question the testimony of Magruder and Porter. Judge Sirica also interrupted the closing argument of Liddy's counsel to challenge the statement that 'it is conceded' that witnesses Magruder, Sloan, Porter and Odle, another functionary in the Committee to Re-elect the President, are 'on the safe side of innocence.' Judge Sirica conducted outside the presence of the jury an extensive examination of Hunt and the Cuban-American defendants as to the reasons for their guilty pleas and refused to accept a plea to anything less than all the charges. Finally, during sentencing Judge Sirica indicated that full co-operation with the prosecution might result in lighter sentences.
A superficial review of these events might support the inference that at least Judge Sirica communicated an appearance of inquisitorial attitude inconsistent with notions of a fair trial. However, such a view assumes an exceedingly narrow interpretation of the responsibilities of a trial judge. No judge should remain aloof while the prosecution ignores important evidence or, indeed, while the defense fails to explore testimony central to the issues at trial or fails to raise defenses which may exonerate the accused. The judge, like the prosecutor in this respect, is not a passive by-stander in the arena of justice, a spectator at a 'sporting event;' rather he or she has the most pressing affirmative responsibility to see that justice is done in every case. There are, to be sure, strict limits on the judge's power to intervene in the conduct of the trial, particularly in the examination of witnesses and the order of presentation of evidence. These limits are premised on the primary role of counsel in the formulation of trial strategy and on the rule that the judge should not communicate to the jury an opinion on the guilt or innocence of the accused. When a trial judge intervenes in the conduct of a trial, we must determine whether the intervention is in pursuit of justice and whether that intervention is consistent with the premises of the limits on intervention.
Judge Sirica's conduct of McCord's trial was consonant with these standards. Concerning the reading of Sloan's testimony, we have held in a companion case involving McCord's co-conspirator, Gordon Liddy, that the reading of Sloan's testimony and the examination that preceded it were a proper exercise of the judicial function. United States v. Liddy, 166 U.S.App.D.C. 95, at 104--109, 509 F.2d 428, at 437--442 (1974). The examination of the Cuban-Americans and Hunt as to their guilty pleas was undertaken outside the presence of the jury and thus could not have prejudiced the jury's deliberations on McCord's guilt. The statements made by Judge Sirica during sentencing, of course, could not have prejudiced the jury since it had been dismissed. Judge Sirica's interruption of Liddy's closing argument was justified since Liddy had stated a conclusion that nowhere appeared in the record; Judge Sirica did not express an opinion on that conclusion but merely asked whether it had been conceded by the prosecution as Liddy had claimed. In sum, there was no prejudice to McCord by reason of Judge Sirica's conduct of the trial. McCord's contention that he deserves a new trial on that ground is without merit.
IV. The Claim of Prosecutorial Misconduct.
McCord next presses upon us the claim that his prosecution was so repugnant to civilized notions of criminal justice that considerations of fairness require either a dismissal of the indictment or a new trial. The basis for this charge is his allegation that the 'prosecution' knowingly used perjuredtestimony against him and engaged in a concerted effort to coerce him to plead guilty and to remain silent as to the involvement of high government officials in the authorization of the Watergate break-in. Submerged in these allegations is the more general claim that the prosecution intended to 'cover-up' the involvement of high government officials by prosecuting only McCord and the other defendants and correspondingly not prosecuting persons in the government who allegedly approved the burglary in the first instance. McCord vaguely alleges that he has been prejudiced by these actions but we find no support for this implied allegation.
McCord can point to no precedent other than the recent dismissal of the Ellsberg-Russo indictment on the basis of a burglary of the office of Mr. Ellsberg's psychiatrist by government agents. While that case is of limited precedential value in this Court, we have no doubt that McCord's most general assertion of principle is grounded in respectable authority: i.e. serious prosecutorial misconduct may so pollute a criminal prosecution as to require dismissal of the indictment or a new trial, without regard to prejudice to the accused. Few cases present the proposition in as bald a form as we have here; generally prosecutorial misconduct is reducible to certain specific errors which arguably may have prejudiced the defendant. Thus, courts have ordered new trials when the prosecution has knowingly used perjured testimony, have reversed convictions when the atmosphere surrounding trial suggests intimidation or reckless disregard of the postulates of a fair trial, have excluded evidence seized pursuant to unlawful searches partially because of lawless conduct represented by that search, and finally have dismissed indictments where the defendant was entrapped by lawless conduct of police officers. While the principle has found expression in these situations, we see nothing that limits it to such situations: 'There is no body of precedents by which we are bound, and which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire both of which we cannot have and make up our minds which to choose. It is desirable that criminals should be detected. . . . It is also desirable that the government should not itself foster and pay for the other crimes, when they are the means by which the (conviction) is to be obtained.'
This principle is not strictly limited to situations in which the defendant has suffered arguable prejudice by reason of the prosecutorial conduct. This is so because the principle is not one of fairness to the defendant alone but rather, in Justice Brandeis' words, is one designed to 'maintain respect for law; . . . to promote confidence in the administration of justice; . . . to preserve the judicial process from contamination. . . . Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means--to declare that the government may commit crimes in order to secure the conviction of a private criminal--would bring terrible retribution.'
While this rationale for the principle excludes the strict requirement of proof of prejudice, it does not eliminate consideration of prejudice altogether. The facts of McCord's case offer a good illustration of why prejudice, actual or potential, is relevant to our determination. McCord, as developed in Part II, was not prejudiced in any way in this case by the actions of the government. To a large extent this is due to the fact that McCord was not merely the object of the governmental misconduct but was a participant in it. The operative fact is that this conspiracy, of which McCord was a part, as least for part of the time, was not designed so much to convict private criminals as to prevent additional convictions.
This then is not a case of the end of law enforcement justifying the means, but of the end itself being, not law enforcement, but criminal activity. To remedy the government's breach of its duty 'to observe the law scrupulously' so that it may set a proper example for the citizenry we should not exonerate those in the government or associated with those in the government already convicted for that breach of duty but rather we should continue the process of prosecution. We may take judicial notice that this in fact being done. In sum, we are not here faced with a choice between convicting criminals and decrying lawless government conduct--the two are one and the same in this case and we may achieve both goals by affirming McCord's conviction.
Despite this persuasive argument, we might still be inclined to dismiss McCord's indictment in order to deter further attempts to select a few hapless individuals to bear the full brunt of criminal activity for which they were only partially responsible. Although other branches of government have already begun the corrective processes which ultimately will purge the government of this past lawlessness, the fact remains that some officials in the government intended that McCord and the other defendants should bear full responsibility for actions which those officials authorized. Such attempts must be deterred by all means available. However, the deterrent effect of the dismissal of an indictment in such circumstances is negligible at best since that grants the offending government officials relief from the pressures which a conviction might impose upon the individuals chosen to bear the full criminal responsibility. The facts of McCord's case demonstrate the wisdom of this postulate since he chose, under threat of imprisonment, to break his silence about the involvement of others in the authorization of the burglary for which he was charged. McCord's claim of error on this ground must, therefore, be denied.
V The Claim of Ineffective Assistance of Counsel.
McCord's final contention is that he was denied the effective assistance of counsel. This claim of ineffective assistance is generically different from the usual claim made in this Court which generally consists of an indigent defendant, court-appointed counsel and an allegation of incompetence. McCord's claim is that his retained, admittedly competent counsel had more loyalty to the White House than to McCord himself and thus did not fully represent McCord's interests.
As a preliminary matter, we have no quarrel with McCord's assertion that disloyalty or conflict of interest may, if substantial and proven, result in the denial of effective assistance of counsel in contravention of the Sixth Amendment. We have little experience with such claims and thus have not developed any detailed standards to judge their merit. However, accepting even the broadest view of disloyalty or conflict of interest, we do not find that McCord has alleged facts sufficient to justify either a new trial or a hearing on his allegations.
McCord alleges the following facts in support of his contention. 1) His attorney on at least two occasions notified him that persons in the White House intended to offer him and other defendants clemency and financial support in return for his silence; and his attorney later inquired of McCord whether he intended to accept the offer; 2) His attorney had conversations with John Mitchell, Paul O'Brien and William Bittman (attorney for E. Howard Hunt) and during those conversations McCord's lack of 'cooperation' with the White House and his unwillingness to inform his attorney of his plans were discussed; and 3) His attorney unsuccessfully prevailed upon McCord to assert as a defense that the Watergate burglary was a CIA operation, a defense allegedly originating in the White House.
It is apparent that these allegations taken as true do not make a case for disloyalty or conflict of interest. At best they indicate only that McCord's attorney was consulting with the persons who arguably authorized the crime for which McCord was being tried and was allegedly involved in the same conspiracy that McCord himself was involved in, hardly evidence of a conflict of interest. The desire to assert the CIA defense was certainly not indicative of a conflict of interest and, in any event, McCord himself successfully ruled out that defense. McCord's allegations thus reduce themselves to the claim that his attorney violated his confidences; however, in the facts of this case, that is not evidence of disloyalty. Even standing alone, such a violation would not be a deprivation of Sixth Amendment rights since McCord himself knew of these violations at the time and there is no allegation as to what confidences were disclosed or whether the information disclosed was given to the U.S. Attorney's office. It follows that the claim of ineffective assistance of counsel is without merit and McCord's conviction on eight counts of burglary, conspiracy and wiretapping must be
MacKINNON, Circuit Judge (concurring specially):
I concur in the foregoing result. From an analysis of the record I conclude that the evidence of appellant's guilt on the offenses he was tried on was so strong and persuasive that none of his arguments, or the additional facts he refers to, would ever cause or justify a different verdict. Central to this result is my conclusion from all the evidence in the case that it is clear that appellant knew he was working for the Reelection Committee and not for the government. To my mind all his arguments come to naught when that fact is recognized.
While I approve the interrogation of witnesses by the court to test their veracity, and this is not a new position for me, I do not approve of the court reading to the jury the Sloan testimony taken out of the jury's presence. And to the extent that some of the testimony so read to the jury tended to show guilt of additional individuals on additional offenses, such conduct, to my mind, is also improper to the extent that such questioning or evidence disclosed or intimated the existence of other crimes not necessary or appropriate to prove the pending indictments. However, a close examination of the above errors does not indicate to my mind that they were sufficiently prejudicial to McCord, in view of his being caught red-handed in the offenses, to support a reversal of the judgment. The court in its trial did not violate any of the substantial rights of the parties. It was not a perfect trial, but few trials are, and a perfect trial is not required.
As for the statement in the majority opinion that officials of the government authorized some of this conduct, I fail to find where the facts in this record support that conclusion even though some of the individuals mentioned in this record had previously been government officials or employees. Certainly no acting government official authorized the unlawful entry into the headquarters at Watergate in his capacity as a government official.
Also, I am not as sure as Judge Bazelon's opinion asserts (supra, p. 351) that 'past lawlessness' will be purged from the government. What he undoubtedly means is that some of those involved in these most recent offenses may be purged. The statute of limitations undoubtedly protects many others from retribution for prior misconduct of a similar nature.