Mackenna v. Ellis, 1960

File — Folder: 1

Identifier: Folder 1

Staff Only

No. 18,110; 280 F.2d 592 (1960), modified 289 F.2d 928 cert. den. 368 U.S. 877 (1961)

Judges Wisdom and Cameron were tentatively agreed to affirm and Judge Cameron had begun writing an opinion so to hold. The court then found it necessary to request supplemental brief. This done, Chief Judge Rives circulated a letter in favor of reversal. Judge Wisdom agreed with Chief Judge Rives, and offered to write the opinion.

The opinion of Judge Wisdom was first submitted only to Chief Judge Rives, whose suggested revisions were incorporated.

The opinion filed, Judge Hutcheson wrote to all the judges expressing his disagreement and suggesting and en banc hearing. To this the other Judges agreed. Judge Brown favored oral argument; the original order entered by Judge Wisdom so provided. Judges Cameron, Tuttle, Hutcheson and Jones were opposed, and the order was accordingly modified to suit them.

On rehearing, Chief Judge Tuttle objected to the original opinion only inasmuch as it concluded with directions that the prisoner be discharged. Judge Rives submitted an order to modify the opinion, first to Judges Brown and Wisdom, who suggested certain changes, and then to the whole court.Judge Hutcheson circulated a dissent, in which Judge Cameron joined. Judge Wisdom considered filing a condurring opinion in response, but did not. Judge Jones thought the Hutcheson dissent too strongly worded, and preferred to file his own.

Includes TLS of Chief Judge Rives on the merits and on reversal as appropriate; TL of Judge Cameron and TL of Judge Widsom on the merits; TLS of Chief Judge Rives to Judge Wisdom on the respective positions of the judges and on how best to approach Judge Cameron; TLS of Chief Judge Rives and TL of Judge Wisdom to Judge Cameron on reassignment of the opinion; TLS of Chief Judge Rives on the opinion as proposed by Judge Wisdom and on certain revisions as appropriate; TLS of Chief Judge Rives and TL of Judge Wisdom on Judge Cameron's dissent; and, TLS of Edward Wadsworth, Clerk of the Court, on the Wisdom opinion.

Also includes TLS of Judge Hutcheson and TLS of Chief Judge Tuttle on rehearing en banc as warranted; and TLS (2) of Judge Brown and TL of Judge Wisdom on oral argument on rehearing as appropriate.

And includes TLS of John L. Estes, Assistant Attorney General for the State of Texas, TLS of Martin L. C. Feldman, former clerk of Judge Wisdom, TLS of Judge Hutcheson, TLS of Judge Rives, TL of Judge Cameron and TLS of Judge Jones, on the subsequent arrest of appellant while on parole and while his case was pending, on the question of mootness, and on the status of the case on rehearing before an en banc court.

And includes TLS of Chief Judge Tuttle on the original majority opinion and on modification on rehearing as appropriate; TLS of Judge Brown and TL of Judge Hutcheson on the suggestion of Chief Judge Tuttle; TLS (2) of Judge RIves to Judges Brown and Wisdom on his propsed per curiam opinion; TLS of Judge Brown on the Rives opinion and on certain changes in it as appropriate.

And includes TLs (3) of Judge Rives and TL of Judge Cameron on the proposed dissent of Judge Hutcheson; TL of Judge Cameron on the proposed dissent of Judge Hutcheson; TL of Judge Wisdom to Judge Rives, on the Hutcheson dissent, and on the possible need for a supplementary concurring opinion in response; TLS (2) of Judge Hutcheson on revision of his opinion; TLS of Judge Cameron on the Hutcheson dissent, and TLS of Judge Jones on filing a separate dissent.

And includes TLS of Judge Brown on a subsequest arrest of MacKenna.

And includes correspondence on Nidy v. Cochran, 280 F.2d 799 (1960).

See also 656:3.