In Re Barry Tarlow, on Petition for Habeas Corpus v. Honorable Manuel L. Real, United States District Judge

455 F.2d 1380 In re Barry TARLOW, On Petition for Habeas Corpus, Petitioner, v. Honorable Manuel L. REAL, United States District Judge, Respondent. No. 72-1492. United States Court of Appeals, Ninth Circuit. March 22, 1972. Barry Tarlow, Los Angeles, Cal., for petitioner. Manuel L. Real, Los Angeles, Cal., and William D. Keller, U. S. Atty., Los Angeles, Cal., for respondent. Before CHAMBERS, MERRILL, and BROWNING, Circuit Judges. ORDER 1 The request for oral argument on the petition for habeas corpus is denied. 2 The petition for habeas corpus is denied. 3 In the interests of prompt resumption of trial it is suggested that the district court consider allowing petitioner, as an option to commitment, to withdraw his cross-examination based upon his investigator's photographic display to the witnesses, such cross-examination to be stricken and the jury admonished to disregard it. 4 The application for stay of mandate is denied. Judge Hufstedler's stay of the district court's order of March 14, 1972, committing petitioner, is extended to and including Monday, March 27, 1972, to permit petitioner to apply to Circuit Justice William O. Douglas for a stay pending the filing of a…

ORDER

The request for oral argument on the petition for habeas corpus is denied.

The petition for habeas corpus is denied.

In the interests of prompt resumption of trial it is suggested that the district court consider allowing petitioner, as an option to commitment, to withdraw his cross-examination based upon his investigator’s photographic display to the witnesses, such cross-examination to be stricken and the jury admonished to disregard it.

The application for stay of mandate is denied. Judge Hufstedler’s stay of the district court’s order of March 14, 1972, committing petitioner, is extended to and including Monday, March 27, 1972, to permit petitioner to apply to Circuit Justice William O. Douglas for a stay pending the filing of a petition for cer-tiorari.

(concurring and dissenting) :

In the holding of the majority that counsel’s claim for immunity was not well taken I concur.

In my view the “stay” heretofore issued was improvidently granted. It *1381 should be terminated immediately. I do not think we should invite the trial court to follow a course that will permit counsel to extricate himself from his mistaken notions of the law.

We should have ere now removed any restraints on the district court. I cannot vote to continue any. Ordinarily we commit egregious error when we interfere midway in the trial of a case. There may be now and then a case where we should do so. This is not it.