The Clark court then discussed the other line of cases interpreting Carbo, Supra, differently than either Judge Haynesworth, or the McGaha, Supra, and Duncan, Supra, courts. Yager v. Raisor, 211 F Supp 551 (S.D. Ind. 1962) dealt with the petition of a prisoner-plaintiff suing on a civil rights action for an ad testificandum writ for his own production from a Kentucky state prison. The court in Yager, Supra, noted the Carbo court's failure to include testificandum writs within the jurisdictional exclusion and adhered to its circuit's opinion in Edgerly, Supra. In Silver v. Duncan, 264 F. Supp. 177 (S.D. Cal. 1967), the court was also faced with a petition by an out of district prisoner-plaintiff for a writ ad testificandum for his own production to prosecute and testify in a civil action. The Silver court criticised the Duncan, Supra, and McGahn, Supra, courts' misplaced reliance on Carbo, Supra. The Supreme Court's major basis, in its opinion, was its feeling of a "need for comity in the administration of criminal justice and upon provisions authorizing extra-territorial process in criminal matters." Silver, Supra at 179. It was the Clark court's analysis then, that whatever authority existed allowing extra-territorial issuance for writs ad testificandum, involved obtaining witnesses for use in criminal trials. There were good reasons the court allowed, arguing for such an exception in criminal cases; the Sixth Amendment right of confrontation and the power of courts 18 to issue subpoenas without jurisdictional limitation pursuant to 19 As to the court's power to issue ad testificandum writs extra-territorially in civil cases, the Clark court could find little authority. It did cite an early case, In Re Thaw, 166 F.71 (3rd Cir. 1908) which impliedly affirmed the district court's extra-territorial issuance of the writ for the production of a prisoner in a New 18 i.e. F.R. Cv. Proc. 4(1) (2) and 17 (c) (1). Fed. R.C.P. 45(e). See Page 17 fn. 14. York hospital for the criminally insane before a bankruptsy proceeding in Pittsbugh. However, the Clark court found the caveat in Carbo, Supra, and the reasoning of Edgerly, Supra, and Silver, Supra to be the more authoritative. It could "conceive of no reason why the federal courts should have greater power to compel the attandance of a witness merely because of the fact that the potential witness happens to be incarcerated than it has to compel the attendance of any other witness at a civil trial." Clark, Supra at 974. It therefore concluded that absent an explicit statutory grant, the federal courts are "without the power to issue writs of habeus corpus ad testificandum to reach outside of its jurisdiction to bring a prisoner-plaintiff or his desired withnesses into court .. to testify and/or prose cute his case in a civil action for monetary damages." Supra at 974. Clark, The argument in Clark, Supra is compelling. It does not view the extra-territorial issue as an all or nothing proposition. It has the effect of accomodating the historical interpretation given the general writ of habeus corpus by the Supreme Court in Carbo while at the same time acknowledging that court's caveat, and recognizing the distinctions between the federal court's criminal and civil responsibilities. However, the Clark court's reliance on Edgerly, supra is unfortunate. Not only because Edgerly, supra, based its decision on #1651, and failed to examine §2241 (c) (5), the validity of which was undercut by the historial analysis given the habeas corpus statutes in Carbo, but also because the legitimacy of the Edgerly opinion itself was removed by the Seventh Circuit's recent opinion in Stone v. Morris, 546 F. 2d 730 (1976). Stone, supra, like Clark, supra, dealt with the federal court's power to issue a writ ad testificandum for a party imprisoned outside the district to prosecute his civil rights action. The Court considered defendant's contention that the circuit's opinion in Edgerly, supra, precluded the issuance of such a writ extra-territorially. In considering that claim the Court in Stone, supra, briefly reviewed Carbo, supra and cases subsequent. Carbo, supra, the court noted, held that writs ad prosequendum were without territorial limitations. Although Carbo, supra, left open the question of the extra-territorial reach of ad testificandum writs, the Stone court related the McGaha, supra court's statement that such process could issue in a proper case. It also mentioned McGaha's favorable citation by the Supreme Court in Barber, supra, and Judge Haynesworth's statement that any remaining doubt was insubstantial. Based on this recitation the court found that the "Writ of habeas corpus ad testificandum as expressed in 28 USC § 2241 (c) (4) (sic), is, on its face, comparable to and as broad as the writ of habeas corpus ad prosequendum." 737. 20 Stone, supra at It therefore held that a "district court has the power, although to be exercised with discretion, to compel production of an incarcerated party or witness from anywhere in the country through the use of a writ of habeas corpus ad testificandum." Stone, supra at 737. To the extent Edgerly, supra, was inconsistent with the court's decision it was overruled. Stone, 21 supra, at 737. The terse examination of the extra-territorial issue by the Stone court leaves much to be desired. It did not address itself to the concerns which lay behind the distinction between the federal court's power in criminal and civil cases which could have motivated the Carbo court to find an expanded jurisdiction was needed for the issuance of prosequendum writs but not for writs ad testificandum. 20 21 It should be noted that perhaps by mistake the court cited the writ ad prosequendum as originating in 62241 (c) (4) an interpretation which has never been given that clause. originating clause is the same as the testificandum writ, §2214 (c) (5). See Ballard v. Spradley, 557 F. 2d 476. It's In light of the overruling of Edgerly, supra, the Stone court acknowledged in a footnote that it had circulated the opinion to all the judges of the court in regular active service. No judge, it stated, favored a rehearing en banc. Stone, supra at 737 fn. 9. |