Gary Maness, Petitioner-appellant, v. Louie L. Wainwright, Director, Division of Corrections,respondent-appellee, 528 F.2d 1381 (5th Cir. 1976)

While I concur in the order vacating the en banc largely because the overwhelming majority thought the case was essentially a factual one, on the merits of the case I register my concurrence in Judge Clark's dissenting opinion for the panel and now that of Judge Goldberg.

GOLDBERG, Circuit Judge, with whom WISDOM, GODBOLD, CLARK and GEE, Circuit Judges, join, dissenting.

The majority opinion for the panel in this case assumed that the operation of the Florida voucher rule excluded the evidence sought to be introduced, and that the issue before the panel was whether this cumulation of exclusions was consistent with Chambers v. Mississippi, 1973, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297. I would agree that this case would be unenbancworthy if the panel had avoided the Chambers question on any of the several grounds suggested in appellee's briefs, or if the panel majority had presented a version of the facts which contradicted the account succinctly set forward in Judge Clark's dissent. The panel chose, however, to face the Chambers issue squarely and, I think, decided it wrongly.

As the majority noted, it was at least a 'veiled' theory of the defense that the defendant's wife, and not the defendant, was the perpetrator of the crime. The testimony that the defendant wanted to introduce attacked the wife's story that she was out of the house at a crucial time, attacked the wife's credibility generally, and attempted to demonstrate a basis for the defense theory that the defendant's confession was a lie to protect his wife.

Chambers reaffirmed the general principle that

(t)he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process.

410 U.S. at 294, 93 S. Ct. at 1045. I am convinced the panel majority's opinion is inconsistent with this general principle, and can only be distinguished from Chambers in immaterial factual details. Assuming the Chambers issue had to be faced, I find Judge Clark's dissent from the panel majority unanswerable. I consider this case to be enbancworthy.