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Against this background, the leading case of People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514 (1938) assumes a different significance. To be sure, Weiss can be distinguished on the basis of legislative intent. But what is the principle upon which this legislative intent is based? In Weiss the principle motivating the legis

lature and which the court itself reasons out is that a mistake concerning the defendant's lawful authority negatives the requisite criminal intent. The statute itself is a recognition of a mistake of law has focused on the tenuous distinction between a mistake of fact and of law in such circumstances. See J. Hall, supra note 14, at 400-01; G. Williams, supra note 8, at 178-83; cf. R. Perkins, supra note 14, at 945 48.

The so-called "claim of right" cases and the bigamy cases have led some commentators to suggest that a mistake as to purely "civil" law is exculpatory while a mistake as to the "criminal" law is not. See G. Williams, supra at 344-45. The Model Penal Code, §§ 3.04(1), 309(1)(b), Commentary at 18, 76-77 (Tent. Draft No. 8 1958), accepts this distinction but makes absolutely clear that a mistake as to the legal requisites of a search or arrest is a mistake as to criminal law.

One area of law in which mistake of law is apparently recognized as a defense concerns inchoate crimes which are not "mala in se." It has been held that such a mistake is a defense to a charge of conspiracy. See Landen v. United States, 299 F. 75 (6th Cir. 1924); Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946). Cf. Keegan v. United States, 325 U.S. 478, 65 S.Ct. 1203, 89 L.Ed. 1745 (1945) (solicitation crime apparently requires knowledge of the illegality of the solicited acts). See also the leading cases of People v. Powell, 63 N.Y. 88 (1875); Commonwealth v. Gormley, 77 Pa.. Super. 298 (1921); Commonwealth v. Benesch, 290 Mass. 125, 194 N.E. 905 (1935). This rule has been criticized in dictum, United States v. Mack, 112 F.2d 290, 292 (2d Cir. 1940), and in dissent, Keegan v. United States, supra 325 U.S. at 506, 65 S.Ct. 1203 (Stone, C. J. dissenting). It has been trimmed back by holdings that the government need not prove actual knowledge of the law in question, this knowl edge being inferred from facts and circumstances. See United States v. Thaggard, 477 F.2d 626, 631-32 (5th Cir. 1973); Cruz v. United States, 106 F.2d 828, 830 (10th Cir. 1939). See also the critical discussion in United States v. Boardman, 419 F.2d 110, 114-15 (1st Cir. 1969); United States v. Spock, 416 F.2d 165, 178 n. 29 (1st Cir. 1969). The rule to the extent it is valid, is limited to prosecutions for inchoate crimes and not prosecutions for com-pleted crimes. Compare Okamoto v. United States, 152 F.2d 905 (10th Cir. 1945) with

defense and thus is itself a source of law as much certainly as a case." Whether the principle of the statute is to be applied beyond its immediate intent is simply a question of whether the principle otherwise persuades us or may be distinThe fact that Section 1250 of the New guished from the situation sub judice.

York Penal Law in effect in 1938 is not operative in the District of Columbia in 1972 is not sufficient ground to distinguish its principle."

35.

Warren v. United States, 177 F.2d 596, 600 (10th Cir. 1949), cert. denied, 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584 (1950).

The harshness of the rule that mistake of law is not a defense is also one factor responsible for the parallel rule that penal statutes should be strictly construed in favor of the accused. See United States v. Bass, 404 U.S. 336, 347-48 (1971); United States v. Moore, 164 U.S.App.D.C. 319, 505 F.2d 426, 427 (1974) cert. granted, 420 U.S. 923, 95 S.CL 1116, 43 L.Ed.2d 392 (1975). Compare this rule of construction with Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1958).

See Easter v. District of Columbia, 124 U.S. App.D.C. 33, 361 F.2d 50 (1966) (en banc); Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451, 455 (D.C.Cir. 1966); cf. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 39092, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Note, The Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan's Contribution, 82 Yale L.J. 258 (1972).

36. In any event, it may be seriously doubted whether the court's ruling in Weiss was as much predicated upon actual legislative intent as a presumed legislative intent implied by the court in the exercise of its own policy making discretion. The statutory language without lawful authority" could easily bear a meaning limited to an objective determination that the defendants in fact did have authority for their actions, as Judge Crane in dissent and the appellate division below apparently held. Cf. G. Williams, supra note 8, at 28-29. The court thus presumes a legislative intent to depart from the settled rule that mistake of law is no defense from the bare statutory language. Surely, the court's implicit reasoning is that its result is a better approximation of the true principle of criminal liability in such circumstances than the rule that mistake of law is no defense. Compare the reasoning in Weiss with State v. Stern, 526 P.2d 344, 348-52 (Wyo.1974) and authorities cited therein.

There are a number of difficulties with Weiss which need not be fully explored. Its significance in the development of modern no

The issue thus framed is whether Weiss, when viewed against the background of the attenuated distinction between fact and law, convinces us that the defendants have alleged a legally First, it would seem cognizable defense. that their defense is factually indistinguishable from Weiss and does involve a case where the distinction between fact

tions of criminal responsibility may be seen by a brief consideration of the common law background of the case. See generally Wilgus, Arrest Without a Warrant, 22 Mich.L. Rev. 673, 685-98 (1924). Of particular interest is the rule recognized by the Model Penal Code, § 3.07(4)(a), Commentary at 64-65 (Tent. Draft No. 8 1957); cf. id. § 3.03(3)(b), that a private person called to the aid of a police officer is justified in using force if he entertains an honest belief that the officer who calls his aid is acting lawfully. See Jefferson v. Yazoo & M.V.R.R., 194 Miss. 729, 11 So.2d 442 (1943); State v. Ditmore, 177 N.C. 592, 99 S.E. 368 (1919); La Chance v. Berlin St. Ry. Co., 79 N.H. 291, 109 A. 720 (1919); Purdy v. State, 60 Texas Cr.App. 130, 131 S.W. 558 (1910); Firestone v. Rice, 71 Mich. 377, 38 N.W. 885, 15 Am. St. R. 266 (1888); McMahan v. Green, 34 Vt. 69, 80 Am.Dec. 665 (1861). But see Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253 (1851); Elder v. Morrison, 10 Wend. (N.Y.) 128, 25 Am.Dec. 548 (1833).. This rule applies only if the officer is known as such and is acting in an official capacity. See Cincinnati, N. O. & Tex. P. Ry. Co. v. Cundiff, 166Ky. 594, 179 S.W. 615, 1916C Ann.Cas. 513 (1915); Hooker v. Smith, 19 Vt. 151, 47 Am. Dec. 679 (1847). Cf. the Good Samaritan "mistake of fact" defense discussed in United States v. Kartman, 417 F.2d 893, 895-96 & n. 5 (9th Cir. 1969); United States v. Grimes, 413 F.2d 1376 (7th Cir. 1969). This "call to aid" rule is explicitly recognized as an exception to the rule that mistake of law is not a defense, this latter rule being a restriction on the police officer himself. Model Penal Code, §3.09(1)(b) (Tent. Draft No. 8 1958). Weiss, if viewed as an extension of a general "call to aid" rule, as its facts suggest, indicates a breakdown in the strict distinction between mistakes of fact and of law when applied to the heavily fact-laden law of search and seizure or arrest, an area of law also on the borderline between "civil" and "criminal" law. See also Pierson v. Ray, 386 U.S. 547, 555-57, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1347-48 (2d Cir. 1972).

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a

and law is more “nice than obvious" 37 in that it depends on the authority of one who could reasonably be viewed as government agent.38 Judge Wilkey's dissent presents the factual material in support of this proposition. Second, it

would seem that the mistake of fact defense, at least when concerned with a reasonable mistake,” is firmly settled in

he had reasonable grounds for ordering the burglary. As is implicitly suggested by the "call to aid" rule suggested in note 36, supra, a mistake as to the lawful authority of a government official, which is what Hunt allegedly presented himself as, is sufficiently close to a mistake of fact and sufficiently similar to a mistake as to civil law a mistaken "claim of right" as it were that exculpation should be permitted. See also United States v. Calley, 22 U.S.C.M.A. 534, 541-44 (1973); G. Williams, supra note 8, at 301. Compare id. at 160-63 (suggests that ignorance of the law may cause ignorance of facts which would have been known if the defendants had known the law).

This analysis is buttressed by reference to the fact that these defendants were formerly citizens of a nation which arguably did not adhere to Anglo-American concepts of permissible search and seizure. In common law contract doctrine, a mistake as to foreign law was considered a "mistake of fact" and grounds for equitable intervention. See E. H. Taylor, Jr. & Sons v. First Nat'l Bank, 212 F. 898, 902 (6th Cir. 1914) (dictum); Miller v. Bieghler, 123 Ohio St. 227, 174 N.E. 774 (1931); cases cited and discussed Anno., 73 A.L.R. 1260 (1931). ̧ In the Federal Republic of Germany, a mistake as to German law by a foreigner is considered a defense to criminal charges. See H. Jescheck, Lehrbuch des Strafrechts 298-99 (1969).

39. See Long v. State, 44 Del. 262, 65 A.2d 489 (1949); People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964); United States v. Short, 4 U.S.C.M.A. 437 (1954); cf. O. Holmes, supra note 7, at 50-51.

That exculpation on the basis of reasonable mistakes of law is consistent with conventional morality may be seen in decisions of the Bundesgerichthof or Supreme Court of the Federal Republic of Germany on this subject. The discussion that follows is drawn from Judgment of March 18, 1952, 2 BGHSt 194; H. Jescheck, Lehrbuch des Strafrechts 294-306 (1969); Ryu & Silving, supra note 18, at 45058, 461-65. Originally, the Supreme Court of the Reich had held that mistake as to civil law, not the law defining the elements of the crime for which the individual is being prosecuted, was exculpatory but that a mistake as to criminal law was not exculpatory. In the 1952

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common morality. The limited exception proposed by the defendants would not, it would appear, significantly depart from the principle of conventional morality which finds recognition in the defense of mistake of fact. Furthermore, I have previously stated my view that the criminal law should be opened up to new behavioral information to better approximate, in limited situations, the ideal that the law punishes only the free choice to do wrong. I, therefore, agree with the dissents to the extent they find that the defendants have alleged a valid defense.

40

III.

Even if I did not agree with the dissents on this point, I would still think that, but for their waiver by plea of guilty, the defendants should not be precluded from asserting their invalid de

decision cited above, the Bundesgerichthof found this distinction untenable and rejected it in favor of a rule that all reasonable mistakes of law were exculpatory. Mistakes of fact, it found, were different and if made honestly and in good faith were exculpatory. As to the requirement of reasonableness in mistakes of law, the Bundesgerichthof had this to say:

in every

[The defendant] must thing he is about to undertake, call to his consciousness whether it agrees with the dictates of the legal [order]. He must dispei doubts by thought and inquiry. This requires an exertion of conscience; the degree [of exertion] is determined by the circumstances of the case and by the life environment and occupation of the individual. If, notwithstanding exertion of conscience as thus expected, he could not acquire the insight into the wrongfulness of his conduct, the error was invincible and the act unavoidable. In this case, no blame of guilt can be raised against him. Compare Judgment of Oct. 6, 1953, Juris. Rund. 188 (BGHSt), discussed Ryu & Silving, supra at 457 with cases cited note 10 supra. Cases decided after the Judgment of March 18, 1952, seem to take a very liberal view of mistake of fact, to include as mistakes of fact all mistakes as to law which do not directly concern the definition of the elements of the offense. 40. See United States v. Moore, 158 U.S.App. D.C. 375, 486 F.2d 1139, 1260 (D.C.Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed. 224 (1973) (Bazelon, C. J. concurring in part, dissenting in part); United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 1022-34 (1972) (Bazelon, C. J. concurring in part, dissenting in part); United States v. Alexander and Murdock, 152 U.S.App.D.C. 371, 471 F.2d

fense to the jury. There are many "escape valves" in the law which permit largely unreviewable discretion for certain officials to mitigate harshness caused by the law's inability to meet its highest ideals, including the ideal of punishing only the free choice to do wrong. Those escape valves are sentencing discretion," prosecutorial discretion,12 pardon and parole discretion," and jury nullification discretion." The first three forms of discretion have a long tradition of recognizing mens rea defenses as grounds for mitigation of punishment or for vindication of the offender.45 deed, the early common law view was that an individual who accidentally killed another was guilty of murder but was 46 This entitled to a pardon as of right!" "minimalist" approach to the problem

47

In

923, 948-51, cert. denied, Murdock v.- U. S., 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1973) (Bazelon, C. J. concurring in part, dissenting in part). See also United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1138 (1972) (Bazelon, C. J. concurring in part, dissenting in part); United States v. Robertson, 165 U.S.App.D.C.. 507 F.2d 1148 (1974).

41. As Judge MacKinnon notes in his dissent, Judge Gesell has exercised his sentencing discretion in favor of these very defendants due to the fact that they were "duped" by government officials. Other famous examples of the use of sentencing discretion in mens rea type defenses include the case of R. v. Dudley & Stephens, [1884] 14 Q.B.D. 273, discussed Malin, In Warm Blood: Some Historical and Procedural Aspects of Regina v. Dudley and Stephens, 34 U.Chi.L. Rev. 387 (1967), and the bigamy case of R. v. Wheat & Stocks, [1921] 2 K.B. 119, discussed in Weigall, Mens Rea and Bigamy, 16 Austr.L.J. 3 (1942).

42.

43.

See generally United States v. Ammidown, 162 U.S.App.D.C. 28, 497 F.2d 615 (1973).

See Ex parte Grossman, 267 U.S. 87, 12021, 45 S.Ct. 332, 69 L.Ed. 527 (1925); State v. Leak, 5 Ind. 359, 363 (1854); 2 Hawkin's Pleas of the Crown, ch. 37, § 8, at 533 (8th ed. J.Curwood 1824).

44. See United States v. Dougherty, 154 U.S. App.D.C. 76, 473 F.2d 1113, 1142 (1972) (Bazelon, C. J. concurring in part, dissenting in part).

48.

See United States v. Moore, 158 U.S.App. D.C. 375, 486 F.2d 1139, 1185-86, 1203-05, cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973) (Statement of Leventhal & McGowan, JJ.). Part of the minimalist approach is a reliance on the legislature to resolve any issue raised by the suggested development of judicially created and judically administered principles. That is, the doctrine of stare decisis causes previous judicial decisions to be embedded in concrete subject only to legislative action.

49. United States v. Dougherty, 154 U.S.App. D.C. 76, 473 F.2d 1113, 1138 (1972) (Bazelon, C. J. concurring in part, dissenting in part). See also Note, Towards Principles of Jury Equity, 83 Yale L.J. 1023 (1974).

1. This was first printed in the November 5, 1974, issue of The Washington Post, Washington, D. C., at A-12, and has been the subject of testimony in the recent trial of the obstruction of justice charges, n. 3 infra. We take judicial notice thereof. Fletcher v. Evening Star Newspaper Co., 77 U.S.App.D.C. 99, 133 F.2d 395 (1942): Hipp v. Hipp. 191 F.Supp. 299 (D.D.C. 1960). The account reads:

Following is the text of a memorandum written by Watergate defendant E. Howard Hunt Jr. Nov. 14, 1972, five months after the break-in, pressing the Nixon administration The memo, for pardons and hush money.

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their defenses by moving to withdraw the guilty pleas, the unreasonableness of their beliefs that national security reasons prevented them from raising their defenses at trial, the fact that they deceived the court on allocution, and the prejudice to the Government if it must retry appellants at this late date. I shall answer each argument in turn.

The eight-month delay is explainable. It took that long for appellants to obtain sufficient information to realize that they were uninformed on critical facts when they entered the plea. Pleas entered in ignorance of material facts are not knowingly entered. It took the United States Government even longer to uncover certain material facts. Some facts that were very material to these defendants and to the validity of their pleas of guilty did not surface until about November 5, 1974, a year after the trial court on November 7, 1973, denied appellants' motions to withdraw their pleas. I refer to the discovery of Hunt's November 14, 1972, memorandum to his then attorney, William O. Bittman.'

initially given to Hunt's attorney, William O. Bittman, was introduced yesterday by prosecutors at the conspiracy trial.

REVIEW AND STATEMENT
OF PROBLEM

The seven Watergate defendants and others not yet indicted, bugged DNC offices initially against their better judgment, knowing that Larry O'Brien was seldom there, and that many items of interest were being moved to Florida. Furthermore, the defendants pressed an alternate plan to bug O'Brien's Fontainebleau convention suite, before occupancy, a low-risk high-gain operation which was rejected.

The seven defendants again protested further bugging of DNC Headquarters on June 16-17, the intercepted conversations by then having shown clearly that O'Brien was not using his office. Again, objections were overridden and the attempt was loyally made even though money for outside guards was struck from the operational budget by Jeb Magruder. In fact the entire history of GEMSTONE was characterized by diminishing funding coupled with increasing demands by those who conceived and sponsored the activity.

If initial orders to bug DNC Headquarters were ill-advised, the defendants' sponsors compounded the fiasco by the following acts: 1. Indecisiveness at the moment of crisis.

།

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This piece of evidence alone might be sufficient to prove that appellants' pleas were involuntary since they were induced by the improper payment of money to others and by an unlawful conspiracy to obstruct justice.

Appellants allege that they believed at the time they entered their guilty pleas that "national security" concerns prevented them from disclosing their defense relating to the authority for their acts. They claim to have developed this belief by observing the actions of their co-defendant, Hunt, and correlating these observations with their knowledge of the expected behavior of espionage agents when captured on an unsuccessful mission. The majority opinion concludes that any beliefs they may have devel

2. Failure to quash the investigation while that option was still open.

3. Allowing Hunt's safe to be opened and selected contents handed to the FBI.

4. Permitting an FBI investigation whose unprecedented scope and vigor caused humiliation to families, friends and the defendants themselves.

5.

Granting immunity to Baldwin.

6. Permitting defendants to fall into the hands of a paranoid judge and three self-admitted liberal Democrat prosecutors.

7. Failure to provide promised support funds on a timely and adequate basis; continued postponements and consequent avoidance of commitments.

8. An apparent wash-hands attitude now that the election has been won, heightening the sense of unease among all defendants who have grown increasingly to feel that they are being offered up as scapegoats ultimately to be abandoned.

Items for consideration:

1. Once the criminal trial ends, the DNC civil suit resumes. In his deposition John Mitchell may well have perjured himself.

2. Pending are three investigations by congressional committees. The Democratic Congress is not going to simply let the Watergate affair die away.

3. The media are offering huge sums for defendants stories. For example, an offer to one defendant for his "autobiography" now stands at $745,000.

4. The Watergate bugging is only one of a number of highly illegal conspiracies engaged in by one or more of the defendants at the behest of senior White House officials. These as yet undisclosed crimes can be proved.

5. Immunity from prosecution and or judicial clemency for cooperating defendants is a standing offer.

To end further misunderstandings the seven defendants have set Nov. 27 at 5 p.m. as the date by which all past and current financial requirements are to be paid, and credible assurances given of continued resolve to honor all commitments. Half-measures will be unacceptable.

Accordingly, the defendants are meeting on Nov. 25 to determine our joint and automatic response to evidence of continued indifference on the part of those in whose behalf we suffered the loss of our employment, our futures and our reputations as honorable men.

The foregoing should not be misinterpreted as a threat. It is among other things a reminder that loyalty has always been a twoway street.