# In Re Osslo

> California Supreme Court · December 23, 1958 · 51 Cal. 2d 371

URL: https://www.frixlaw.com/law-library/cases/9608884

## Case

- **Full name:** In Re MAX OSSLO and ARTHUR L. MEYER, on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** December 23, 1958
- **Citations:** 51 Cal. 2d 371; 334 P.2d 1; 1958 Cal. LEXIS 241
- **Precedential status:** Published
- **Opinion:** Concurrence by Carter
- **Judges:** Schauer, Carter
- **Cited by:** 78 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9608884

## Opinion text

CARTER, J.
Concurring and Dissenting.-—-I agree with the majority that petitioners must be released from the illegal restraint imposed by the terms of their probation, but the opinion falls far short of granting the relief to which petitioners are entitled, by permitting the trial court to now impose sentence on them. Considering the additional facts revealed at the hearing of petitioners’ motions to reject probation, this court has no alternative but to release petitioners from any further restraint, on the ground that they were denied a fair trial in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States.
Denial of a fair and impartial trial in a criminal ease, whether the crime charged is a felony or misdemeanor, constitutes a denial of due process of law and is in violation of the Fourteenth Amendment as well as article I, section 13, of the Constitution of California. (Moore v. Dempsey, 261 U.S. 86, 91 [ 43 S.Ct. 265 , 67 L.Ed. 543 ] ; Chambers v. Florida, 309 U.S. 227, 238 [ 60 S.Ct. 472 , 84 L.Ed. 716 ] ; Adamson v. California, 332 U.S. 46, 53 [ 67 S.Ct. 1672 , 91 L.Ed. 1903 , 171 A.L.R. 1223 ] ; see, In re Wells, 35 Cal.2d 889 [ 221 P.2d 947 ] ; In re James, 38 Cal.2d 302 [ 240 P.2d 596 ].) “A fail-trial means a trial before an impartial judge, an honest jury and in an atmosphere of judicial calm.” (14 Am.Jur., Crim. Law, § 130; McKay v. Superior Court, 98 Cal.App.2d 770 [ 220 P.2d 945 ].) Where bias and prejudice at the trial on the part of the trial judge is established, then there has been a denial of due process. (See, Kreling v. Superior Court, 25 Cal.2d 305 [ 153 P.2d 734 ] ; In re Jacobson’s Guardianship, 30 Cal.2d *384 312 [ 182 P.2d 537 ]; People v. Spear, 32 Cal.App.2d 165, 171-172 [ 89 P.2d 445 ] ; In re Steiner, 134 Cal.App.2d 391, 395-396 [ 285 P.2d 972 ] ; see, also, Code Civ. Proc., § 170 et seq.)
The degree of bias and prejudice which disqualifies a trial judge is more than a nebulous belief that the judge had some preconceived ideas about a piece of litigation; it is personal bias and prejudice or a bent or leaning either for or against the litigant, which, regardless of the merits of the cause, makes it impossible for the judge to view the case dispassionately. It is a state of mind calculated to impair impartiality and to sway judgment. (Estate of Friedman, 171 Cal. 431 [ 153 P. 918 ]; McEwen v. Occidental Life Ins. Co., 172 Cal. 6 [ 155 P. 86 ]; Evans v. Superior Court, 107 Cal.App. 372 [ 290 P. 662 ]; McKay v. Superior Court, supra.) Moreover, the bias or prejudice must be against the complaining party. (People v. Sweet, 19 Cal.App.2d 392, 396 [ 65 P.2d 899 ] ; Woolley v. Superior Court, 19 Cal.App.2d 611, 626-627 [ 66 P.2d 680 ] ; People v. McCullough, 100 Cal.App.2d 101, 110-111 [223 P.2d
37].).
It is well settled that expressions of opinion uttered by a judge, in what he conceives to be a discharge of his official duties, are not evidence of bias or prejudice. (Estate of Friedman, supra, 171 Cal. at 440 ; McEwen v. Occidental Life Ins. Co., supra, 172 Cal. at 11 ; Fishbaugh v. Fishbaugh, 15 Cal.2d 445, 456 [ 101 P.2d 1084 ] ; Kreling v. Superior Court, supra, 25 Cal.2d at 310-311 .) Nor does marked disapproval by the judge of unlawful misconduct, disclosed by evidence, amount to a manifest prejudice by the trial judge. (In re Steiner, supra, 134 Cal.App.2d at 391 .)
As qualified by these principles the criterion for determining bias and prejudice is what the trial judge said or did. (McKay v. Superior Court, 98 Cal.App.2d 770 [ 220 P.2d 945 ].) The allegations showing prejudice must give fair support to the charge of a bent of mind that has prevented or impeded impartiality of judgment and assert facts with particularity from which a reasonable mind might fairly infer bias or prejudice. (Wilkes v. United States, 80 F.2d 285, 288-289 .)
It is clear that the facts contained in the present affidavit are sufficient to show such bias and prejudice. Although it is unnecessary to refer in detail to the errors that occurred during the trial of petitioners as pointed out in my dissenting opinion (People v. Osslo, 50 Cal.2d 75, 106 ), a brief summary of them is required to set the stage for what was to follow. It is sufficient to say that the main thrust of the trial *385 court’s errors was manifested in the prosecutor’s efforts to inflame the passions of the jury by portraying petitioners as characters harmful to society because they were members and officials of a labor union. The prosecution lacked facts to prove its case of conspiracy, and so resorted to non-legal methods of proof. For the most part the prosecutor was successful, despite vigorous objections by defense counsel. Thus by substituting the labor union movement as defendant and placing it on trial, the prosecutor obtained a conspiracy conviction on the basis of guilt by association.
At the time the appeal of the case was considered on its merits all that could be inferred from the trial judge’s rulings, which permitted these tactics, was that they were erroneous. As serious and as prejudicial as I felt these errors were, and still do, our conclusion did not go beyond the observation that the trial judge misapprehended the law. The majority admitted there was error, but held that it was not prejudicial. However, even the majority found unpalatable the trial judge’s astonishing provision that he retain exclusive jurisdiction of petitioners during their probation, and this term was stricken from the judgment by the decision of this court ( 50 Cal.2d 75 ). This provision was a portent of the trial judge’s position which was to be made known subsequently. The factual circumstances remained unchanged until the instant proceedings were commenced.
At the hearing on petitioners’ motions to reject probation, the trial judge made the following revealing remarks as quoted in the majority opinion: “ ‘Levying a fine in a ease of this kind is useless’ because the fine would be paid by assessment of union members. ‘I think it is going to be conducive to peace in the labor movement if these officials have to control their actions to such an extent that they don’t become involved with the Penal Code. . . . They are responsible to the criminal courts and ... if they know it and it is certain if they are convicted they won’t be turned loose and have the matter made a misdemeanor, I think we will have peace in the labor movement.’ ”
In considering these comments it will be remembered that petitioners were supposedly being tried for a conspiracy to commit a misdemeanor, and not for disrupting the peace in the labor movement. Moreover, as was stated in my dissent, there was not one shred of evidence indicating that petitioners, in their capacity as union officials, or otherwise, demonstrated *386 disrespect for the law. (People v. Osslo, supra, 50 Cal.2d at 120-122 .)
Only one conclusion can be drawn from the trial judge’s preoccupation with petitioners’ union membership. His obvious antipathy to the labor movement and union members in particular, as reflected in his rulings at the trial level, and fully demonstrated by his remarks at the hearing of the motions to reject probation, prevented the exercise of his impartial judgment. He attempted to clasp petitioners within the ambit of his jurisdiction for 10 years to preclude their participation in any labor union activity whatsoever. His punishment was not aimed at the individual petitioners but at labor union members as a whole for the sole purpose of controlling their actions. Again I repeat, neither labor unions nor the labor movement was on trial. But the statements by the trial judge, referring to these elements, coupled with his efforts to punish them, point to a preexisting bias and prejudice which disqualified the trial judge and rendered the trial before him violative of due process of law.
Habeas corpus is an available remedy where a defendant is denied due process of law at his trial, provided there is no other adequate remedy. (In re Wallace, 24 Cal.2d 933, 938 [ 152 P.2d 1 ]; In re McCoy, 32 Cal.2d 73, 76 [ 194 P.2d 531 ].) Where, however, the facts on which the petition for habeas corpus is based,, arise or come to light subsequent to the appeal, the existence of a prior appeal will not deter us from granting relief clearly called for. (Chessman v. Teets, 354 U.S. 156, 161-162, 164-165 [ 77 S.Ct. 1127 , 1 L.Ed.2d 1253 ].)
Such is the situation in the ease at bar. The most convincing statements demonstrating prejudice and bias by the trial judge did not occur until the hearings on the motions to reject probation, a time after the appellate processes had been exhausted.
Nor does the fact that petitioners have not specifically requested this relief militate against granting appropriate relief. “The proponent before the Court is not petitioner but the Constitution of the United States.” (Chessman v. Teets, supra, 354 U.S. at 165 .) Where the facts warrant relief, as abundantly appears herein, the court, as justice requires (Pen. Code, § 1484), and as vindication of the constitutional guarantee of due process of law, must grant relief. No clearer ease for the application of this rule can be found.
This case presents a sorry picture of justice in this state. It is obvious to my mind that if these petitioners had not been *387 engaged in union labor activity, they would not have been prosecuted. There is not one word of evidence in the record connecting them with any crime whatsover. Their only crime is being a member of a labor union. Such membership was believed by some to be unpopular in San Diego County and even in California before the last election. The atmosphere during the trial was surcharged with prejudice against the defendants because they were engaged in labor union activity. The trial judge did not become prejudiced solely on the probation issue. The record shows that he cooperated with the prosecutor to prejudice the defendants in the eyes of the jury and that the guilty verdict was the result of such prejudice. This result is too obvious to escape the careful scrutiny of the members of this court. The only question is, will it be tolerated? This question must be answered by the individual members of the court.
I have always believed that considerations of justice should rise above prejudice and that persons charged with crime should be judged on the basis of proven guilt, regardless of race, color, creed or occupation. I am convinced beyond doubt that if such rule were applied here, these petitioners would be completely exonerated and discharged from custody.
For the foregoing reasons petitioners should be discharged from custody.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9608884. Public record. Not legal advice.