Petition — Waste Management of Wisconsin, Inc. v. Wisconsin

Supreme Court brief1978

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Text

Supreme Court. U. x |

FILED

IN THE MIB 4 ‘A. IR, CLERK

Supreme Court of the United States

October Term, 1977

No.

78-153

WASTE MANAGEMENT OF WISCONSIN,

INC,, d/b/a CITY DISPOSAL COMPANY,

Petitioner,

vs.

STATE OF WISCONSIN,

Respondent,

Petition for a Writ of Certiorari to the

Supreme Court of the State of Wisconsin

and Appendix

Ropert H, FRIEBERT

710 North Plankinton Avenue

Milwaukee, Wisconsin 53203

(414) 271-0130

Attorney for Petitioner

Of Counsel:

FRIEBERT & FINERTY

HAMMERSMITH BREITHAUPT PRINTING CORP, MILWAUKEE, Wis, TE

ll. iP

INDEX

OPINION BELOW .

JURISDICTION . .

QUESTIONS PRE SENTED cocccocccoseereeeee

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED .

STATEMENT OF THE CASE. leanne

REASONS RELIED ON FOR ALLOWANCE

OF WRIT . diisstiaclmetaciaintaamibiciietinine

O00 Meee ene nnn nnee

I. RECENT DECISIONS OF THIS COURT

REGARDING FORMER JEOPARDY

ANNOUNCED AFTER THE DECISION

OF THE WISCONSIN SUPREME

COURT MAKE THE DECISION OF

THE TRIAL COURT AND THE WIS-

CONSIN SUPREME COURT IN CON-

FLICT WITH DECISIONS OF THIS

COURT

This case presents a question of clear prosecu-

torial overreaching in the first trial because on

cross examination of an employee of the peti-

tioner, the petitioner was smeared before the

jury when the jury was effectively told that the

petitioner had been convicted of price fixing

in the past .. soinbddiibteniabiiieinadadosemaiemcccie

Cee nnne

Such a question would have been wholly im-

proper even if true, but the petitioner has never

been convicted of price fixing .......... aicelicascnds

There was no evidence in the case which would

have warranted any such attack upon the peti-

tioner, even if the attack were true ....................

Il.

Page

The trial court held and the Wisconsin Su-

preme Court impliedly held incorrectly that

federal jeopardy issues were inapplicable be-

cause the first trial resulted in a mistrial due to

DE BS viisisaheestncinclaksninttvecentihesntieptnsinaavatuaeans

The trial court and impliedly the Wisconsin

Supreme Court utilized an incorrect federal

standard for determining when jeopardy at-

MI acc Seacsatastadine paid cestaaiands ndecnesipspeusaanentaeidesian

The correct federal standard is whether there

was “prosecutorial overreaching” rather than

whether the prosecutorial misconduct was based

upon “a fear that the jury was likely to acquit

INE ilies tincnceincnasinntastdnatntndeipicintinioune

The intentional smear which falsely stated to

the jury that the petitioner had been previously

involved in or convicted of price fixing was not

only inexcusable but highly prejudicial ............

RECENTLY THIS COURT HELD THAT

A HEARING MUST BE HELD IN A

FOURTH AMENDMENT CONTEXT

WHEN THERE IS A SHOWING OF

FALSITY IN AN AFFIDAVIT FOR A

WARRANT; THIS CASE PRESENTS

THE KNOWING USE OF FALSE TESTI-

MONY IN A FOURTH AMENDMENT

SUPPRESSION HEARING ..........0. ee

During a hearing held on July 3, 1973, concern-

ing illegal electronic surveillance, one of the

questions became: How did the State learn

III.

Page

about a meeting held in February of 1973 be-

tween Mr, Standridge and Mr .Schultz? The

State’s false explanation in 1973 was that Mr.

Schultz told the Attorney General’s office about

RNS I aire inbcreeeactttertacetcincaee stews

In hearings conducted after the mistrial and in

1975, the State acknowledged that they knew

about this meeting prior to interviewing Mr.

Schultz and that Mr. Schultz was not the

source, but the State was unable to demonstrate

its source of this information .....0.0...0.00000cccc0

The Court has repeatedly condemned the

knowing use of false testimony but has never

discussed its impact in a Fourth Amendment

inquiry regarding electronic surveillance ........

An appropriate constitutional result would be

to invoke the general rule of evidence that a

presumption is created when one has evidence

and does not produce it and that presumption is

that the suppressed evidence would be unfavor-

able to the defaulting party. Here, the only un-

favorable presumption is that the knowledge

about this meeting was obtained by employ-

ment of illegal electronic surveillance devices ..

THE DECISION OF THE WISCONSIN

SUPREME COURT IS NOT IN ACCORD

WITH APPLICABLE DECISIONS OF

THIS COURT AND, IN PARTICULAR,

THE RECENT DECISION OF UNITED

STATES GYPSUM CO., — U.S. — (1978)

Page

In United States Gypsum Co., the Court held

that it was improper to instruct the jury that

there was a presumption of intent in a criminal

case; a similar instruction was given in this case

over objection ....... assiashichittshaanhiniatateapedinapneiaeaaa

The indictment originally charged that the

petitioner's actions had an effect upon com-

merce, listing in detail that effect...

Over objection, the trial court instructed the

jury that the State did not have to prove an

CHReCt UPOR COMMMICTCR nxcccccreccsesccsccssnsnsccsendesnnetons

An instruction offered by the petitioner was

not given, which instruction stated, in part, that

“evidence of competition between the alleged

conspirators creates an inference that there

REVEL WAS 8 COMBDITACY.” .cnccecceciceninsectensenmestansaies

In United States Gypsum Co., the Court noted

that one of the elements of intent in a conspir-

acy is that the State must prove “the more tra-

ditional intent to effectaute the object of the

conspiracy.” These instructions effectively took

that issue away from the jury ......0...cccccceeeees

The Court held in United States Gypsum Co.

that a conspirator could withdraw by commenc-

ing to compete with other conspirators. The in-

struction which was offered but refused served

an identical purpose to the one this Court re-

quired in that vigorous competition is also signi-

ficant to demonstrate that there was no con-

spiracy in the first place ................c.cccssccesssssssseees

When the grand jury in its indictment alleged

an effect upon commerce, it was improper to

‘Yv.

Page

deprive the petitioner its right to show that there

was no effect upon commerce by instructing the

jury that no effect upon commerce need be

RN cin hls ss atencchbeieesasbcsoiscoeniecsousts

THE PETITIONER WAS DENIED

FULL AND FAIR HEARINGS WITH

RESPECT TO ITS CLAIMS THAT IL-

LEGAL ELECTRONIC SURVEIL-

LANCE HAD BEEN EMPLOYED BY

I 5g dscns eaai-chcnsessecwecesovseneusewednees

The Court in Stone v. Powell, relied upon the

state court systems to provide full and fair hear-

ings on Fourth Amendment claims in the first

In this case, several classic examples of a denial

of this right are presented such as the failure to

allow impeachment questions of witnesses;

utilization of hearsay reports; the failure to

provide substantial time to prepare for hearings

involving complex technical data; the denial

of the right to present evidence favorable to the

petitioner involving the fact that Mr. Pellitteri

failed a lie detector test concerning electronic

surveillance; the failure of the first trial judge

to allow examination of the tapes; the fact that

the first hearings were infected with the know-

ing use of false testimony; and the failure of the

second trial judge to create a presumption of il-

legality as a result of this false testimony ........

Page

THE WISCONSIN SUPREME COURT

EMPLOYED AN UNCONSTITUTION-

AL STANDARD IN DETERMINING

THAT THE TRIAL COURT HAD NOT

ERRED IN ITS FINDING OF NO ELEC-

TRONIC SURVEILLANCE BY THE

STATE; THE DECISION IS IN CON-

FLICT WITH FEDERAL COURTS; THE

AFFIDAVITS OF STATE AGENTS ARE

CONSTITUTIONALLY INSUFFI-

FEDERAL DUE PROCESS RIGHTS

WERE VIOLATED WHEN SUBSTAN-

TIAL AMENDMENTS TO THE GRAND

JURY INDICTMENT WERE ALLOWED

The petitioner was originally charged with

violating the second sentence of §133.01(1),

Wis. Stats., but by a series of amendments, the

petitioner was ultimately tried upon an alleged

violation of the first sentence of §133.01(1),

MI SN cds enttneintcnees Bina tneidairassctain mentneeconian

This action constituted an abandonment of the

grand jury process and, therefore, as a matter

of Fourteenth Amendment rights, the petitioner

was entitled to a preliminary hearing ..............

During the trial, in its instructions to the jury,

the trial court further amended the indictment

by deleting a paragraph which alleged an effect

upon commerce when the trial court instructed

the jury that the State need not prove such

i RR ks ches ieee

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VII.

VIII.

Vil

Page

THE PETITIONER’S RIGHTS TO DUE

PROCESS OF LAW WERE VIOLATED

WHEN A JURY INSTRUCTION WAS

AMENDED IN THE MIDDLE OF CLOS-

ING ARGUMENT TO THE JURY ..........

The Wisconsin accomplice instruction which

cautions the jury about the reliability of such

a person and that it would be reasonable to re-

quire corroborating evidence was amended dur-

ing the course of closing argument of counsel

for the petitioner when the jury was told effec-

tively that this instruction which did not con-

tain any limitation on time was limited to those

times when the accomplice was actually acting

Te Pe reas enaican ssc tadectearenatcietens cael

THE PETITIONER’S RIGHTS TO DUE

PROCESS OF LAW WERE VIOLATED

WHEN THE ASSISTANT ATTORNEY

GENERAL “TESTIFIED” DURING

CLOSING ARGUMENT TO THE EF-

FECT THAT- EVIDENCE EXISTED

WHICH WOULD BE HARMFUL TO

THE PETITIONER BUT WHICH WAS

NOT PRODUCED AND THAT THE PE-

TITIONER WAS RESPONSIBLE FOR

THE DENIAL OF RECEIPT OF SUCH

Bae STI csceancnchibsebcerap, continent nnrsnricieans

During the course of another interruption of

closing argument, the Assistant Attorney Gen-

eral stated in the presence of the jury to coun-

sel for the petitioner, “You know very well why

IX.

Vill

Page

we couldn’t get evidence on that” effectively

smearing counsel by intimating that evidence

had been withheld from the jury or that there

was evidence which the State could not obtain

for a reason attributable to the petitioner ........

No such evidence CxiSted ................5..0ce-200-000000--

The trial court refused to make any correcting

instruction to the jury even though several

WRGR: CITI cisinscccesinsssissaitayicess aaenndotaneterads

It is a violation of due process of law for a

prosecuting attorney to “testify” with respect to

matters not in the record and not subject to

CEOOE CERRADO 5 ecesnninsevsnsovnacnasiiaboiinsphanlabnatiante

PROSECUTORS, AS A MATTER OF

DUE PROCESS OF LAW SHOULD BE

REQUIRED TO TRANSMIT EXCULPA-

TORY EVIDENCE TO A GRAND JURY

FOR THEIR CONSIDERATION ..............

The State failed to elicit testimony before the

grand jury or to advise the grand jury that an

employee of the petitioner had stated to Mr.

Pellitteri words to the effect that he would be

willing to publicly disseminate his price infor-

mation on current accounts but that he would

not tell competitors what prices to quote since

such conduct bordered on price fixing which is

illegal. This exculpating testimony was not pre-

sented to Che STARE FUTY ..2nncecocvceconcsssennoyenssorninenene

Bee at Wi hr Rw Fata Yin att eet Fe and wince

Page

Several federal courts have held that it is a

violation of due process of law to fail to pro-

vide exculpating evidence to a grand jury ........ 83

NN scabs cant ekaetle ccc anes edeclecnnnsloesansteseidues 84

AUTHORITIES CITED

Cases

Barton v. Bruley, 119 Wis. 326, 96 N.W. 815 (1903) 53

Boyd v. United States, 142 U.S. 450 (1892) 00000000... 51, 52

Burgett v. Texas, 389 U.S. 109 (1969) 0. 52

Caminetti v. United States, 242 U.S. 470 (1917) ...... 58

Cole v. Arkansas, 333 U.S. 196 (1948) _000.0.. 64, 76, 77

DeJonge v. Oregon, 299 U.S. 353 (1937) uu... 64, 76

Bk © OFOE TRUM, 121 UB. 1 (IGE) occcccsceeisciveeccesnees 73,75

Franks v. Delaware, — U.S. — (1978) ........ 54, 56, 57, 58

Gori v. United States, 367 U.S. 364 (1961) 0.000000... 50

Graves v. United States, 150 U.S. 118 (1893) 00000000... 58

Hughes v. Matthews — F.2d — (7th Cir. 1978) ...... 60

Hurtado v. California, 110 U.S. 516 (1884) ............ 74

Kent v. United States, 383 U.S. 541 (1966) 0.000000... 56

passeer ¥. Pate, 300 UB. 0 C1GGT Yon cccvccccennenccesccccreeeeee 57

Morrissey v. Brewer, 408 U.S. 471 (1972) -.0.00000000... 56

Mullaney v. Wilbur, 421 U.S. 684 (1975) 000... 60

Palko v. Connecticut, 302 U.S. 319 (1937) 000.0... 74,75

Page

Russell v. United States, 369 U.S. 749 (1962) ............ 74

Sanabria v. United States, — U.S. — (1978) ............ 47,51

Specht v. Patterson, 386 U.S. 605 (1967) ...........2..0-2--- 57

Spencer v. Texas, 385 U.S. 554 (1967) ..............0000+0+- 52

State v. Calhoun, 67 Wis. 2d 204, 226 N.W.2d 504

GED T ID -knkutcapsinincndiccccaraieinrdainscemanteeegapation 50, 51

State v. Waste Management of Wisconsin, Inc., 81

Wis. 2d 555, 261 N.W.2d 147 (1978) ...........-4--- 1, 39, 40,

46, 47, 57, 69, 80

Stirone v. United States, 361 U.S. 212 (1960) ....73, 75, 76

Stone v. Powell, 428 U.S. 465 (1976) ........ ........56, 64, 66

Townsend v. Sain, 372 U.S. 293 (1963) ............--ec0-- 56

United States v. Alter, 482 F.2d 1016 (9th Cir. 1973) 71

United States v. Dinitz, 424 U.S. 600 (1976) 48, 49, 51, 52

United States v. Dionisio, 410 U.S. 1 (1973) 022.2... 84

United States v. Gonzales, 491 F.2d 1202 (Sth Cir.

WS a ee 2

United States v. Jenkins, 436 F.2d 140 (D.C. Cir.

1WIDY sone cso eee 81

United States v. Latimer, 511 F.2d 498 (10th Cir.

NT SS, <ccdine “cnsanoniendcecivceghaceiaaie atinaieamabapmatn 81

United States v. Peak, 498 F.2d 1337 (6th Cir.

a | ROS DREN TE NEA ster Bip le Ae cUeN os Bea He IE 81

United States v. Phillips Petroleum Company, 435

F. Supp. 610 (90:0): Ca TGF) ccdecoceens 83, 84

United States v. Provenzano, 440 F. Supp. 561 (S.D.

My. F907 F errs eens 84

Page

United States v. Socony-Vacuum Oil Co., 310 U.S.

Ss, ea ROS | NON AN NCTA LG NOC OR 63

United States v. Tateo, 377 U.S. 463 (1964) .0000.02.... 50

United States v. United States Gypsum Co., — U.S.

cnt, * IPC ORIRCE COON BEENE RAS 4, 59, 60, 61, 62, 63, 64, 77

United States v. White, 401 U.S. 745 (1971) 2000000... 70

United States v. Young, 463 F.2d 934 (D.C. Cir.

NE el pata saci ee platedhadipeabailadcescuas a Raiastei stamens 58

Statutes

Wis. Stats.

Sage RO SIRES IRR el a RDO ar er 7, 8,72

sical setvoahcintenveslicedetiie cic ehenpbatedsucssospseaiacd 78

IN ales cat cil cuceseescdiaieieticn-elduicaeplansenicn cnc 78

I ade as tatnccecend tate tiedeg Mipabddticadiianeitaxsedct.sos 78

United States Stats.

ee Ree NOI SUPP acess tecrcetaspcesvareetinnmetecciceccannices 2

Contitution

Fourth Amendment ....3, 4, 6, 54, 56, 58, 64, 65, 66, 68, 69

RE i ET 3, 4, 5, 6, 74

cs encninittlaenenct 5,6

Fourteenth Amendment .............2......200000+- 3, 4, 5,7, 65, 74

Other Authorities

A.B.A., The Prosecution Function, Standard 5.9 .... 81

Devitt and Blackmar, Federal Jury Practice and In-

1 ERR eee ee 79

Federal Rules of Criminal Procedure, Rule 30 ........ 77

Wigmore, Evidence, §285 (3rd Ed., Vol. 2) ............ 58

IN THE

Supreme Court of the United States

October Term, 1977

No.

WASTE MANAGEMENT OF WISCONSIN,

INC., d/b/a CITY DISPOSAL COMPANY,

Petitioner,

VS,

STATE OF WISCONSIN,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of the State of Wisconsin

The petitioner, WASTE MANAGEMENT OF WIS-

CONSIN, INC., d/b/a CITY DISPOSAL COM-

PANY by its attorneys FRIEBERT & FINERTY by

ROBERT H. FRIEBERT respectfully prays that a writ

of certiorari issue to review the judgment and opinion

of the Supreme Court of the State of Wisconsin entered

in this proceeding on January 3, 1978.

OPINION BELOW

The opinion of the Supreme Court of the State of

Wisconsin is reported at State v. Waste Management of

Wisconsin, Inc., d/b/a City Disposal Company, 81 Wis.

2d 55S, 261 N.W.2d 147 (1978). A copy of this opinion

appears in the appendix at 1.

JURISDICTION

The judgment of the Supreme Court of the State of

Wisconsin was entered on January 3, 1978. A timely mo-

tion for a rehearing was filed on January 23, 1978 together

with a motion for an extension of time within which to

serve and file a brief in support of the motion, The Wis-

consin Supreme Court granted the extension of time to

file the brief in support of the motion to February 13,

1978. A copy of that order dated January 23, 1978 ap-

pears at appendix, p. 22. On February 13, 1978, the peti-

tioner timely filed its Brief in Support of Motion for Re-

hearing. On March 3, 1978, the Wisconsin Supreme

Court denied the motion for rehearing. A copy of the

decision of the Wisconsin Supreme Court denying the

motion for rehearing appears at appendix, p. 23. Within

90 days after the denial of the motion for rehearing, the

petitioner filed a timely application for extension of time

in which to file a petition for a writ of certiorari. On May

4, 1978, Associate Justice John Paul Stevens executed an

Order Extending Time to File a Petition for Writ of

Certiorari to and including July 31, 1978. The order ap-

pears at appendix, p. 24.

This Court's jurisdiction is invoked under 28 U.S.C.

§1257(3).

QUESTIONS PRESENTED

1. Does the decision of the Wisconsin Supreme Court

and the trial court violate the petitioner’s right against

;

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;

being twice put in jeopardy for the same offense as guar-

anteed to the petitioner by the Fifth and Fourteenth

Amendments to the United States Constitution as well

as the petitioner’s right to due process of law as guaran-

teed to the petitioner by the Fourteenth Amendment to

the United States Constitution in that during the first

trial of the petitioner which resulted in a mistrial due to

a hung jury, the prosecuting attorney engaged in prosecu-

torial misconduct to such an extent as to constitute “prose-

cutorial overreaching?”

2. Does the decision of the Wisconsin Supreme Court

and the trial court violate the petitioner’s right to be secure

against unreasonable searches and seizures as guaranteed

to the petitioner by the Fourth and Fourteenth Amend-

ments to the United States Constitution and the petition-

er’s right to due process of law as guaranteed to the peti-

tioner by the Fourteenth Amendment to the United States

Constitution in that the State engaged in prosecutorial

misconduct in a hearing to determine whether there had

been any illegal electronic surveillance either by the

knowing use of false testimony or by obtaining testimony

with a reckless disregard of truth and whether such mis-

conduct created a presumption of wrongdoing?

3. Does the decision of the Wisconsin Supreme Court

and the trial court violate the petitioner’s right to the pre-

sumption of innocence, its right to have the State prove

every element of the offense beyond a reasonable doubt,

its right to require the State to prove an effect upon com-

merce in a Sherman Act case setting as guaranteed to the

petitioner by the Fourth, Fifth, Sixth and Fourteenth

Amendments to the United States Constitution in that the

decision of the Wisconsin courts is in conflict with deci-

sions of this Court and particularly the decision of this

Court in United States v. United States Gypsum Co., —

U.S. — (1978) because the trial court instructed the jury

that they could presume that a person intends the natural

and probable consequences of its deliberate acts, the trial

court failed to instruct the jury that the State must prove

an effect upon commerce even though the grand jury al-

leged in the indictment an effect upon commerce and be-

cause the trial court refused to instruct the jury that evi-

dence of competition between the alleged co-conspirators

creates an inference that there never was a conspiracy?

4. Does the decision of the Wisconsin Supreme Court

violate the petitioner’s right to a full and fair hearing

with respect to its claims of illegal electronic surveillances

as guaranteed to the petitioner by the Fourth and Four-

teenth Amendments to the United States Constitution?

5. Does the decision of the Wisconsin Supreme Court

violate the petitioner’s right to be secure against unrea-

sonable searches and seizures as guaranteed to the peti-

tioner by the Fourth and Fourteenth Amendments to the

United States Constitution in that the Wisconsin Supreme

Court and the trial court utilized affidavits which do not

comply with federal standards in refuting a prima facte

showing of the existence of radio frequency signals ema-

nating from one of the telephones of the petitioner and

the Wisconsin Supreme Court in its decision failed to

shift the burden of proof to the State?

6. Does the decision of the Wisconsin Supreme Court

violate the petitioner’s right either to be indicted by a

grand jury or to be charged by utilization of a procedure

whereby probable cause is found by a neutral party as

guaranteed to the petitioner by the Fifth and Fourteenth

Amendments to the United States Constitution?

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7. Does the decision of the Wisconsin Supreme Court

violate the petitioner’s right to be tried upon charges as

presented by the grand jury instead of amended charges

as guaranteed to the petitioner by the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitu-

tion in that the trial court amended the charging para-

graph of the indictment to charge a different crime and

the trial court, in its instructions to the jury, effectively

deleted a paragraph from the indictment which had al-

ieged an effect upon commerce?

8. Does the decision of the Wisconsin Supreme Court

violate the petitioner’s right to due process of law as

guaranteed to the petitioner by the Fourteenth Amend-

ment to the United States Constitution in that an agreed-

upon jury instruction was amended during the course of

the closing argument of counsel for the petitioner?

9. Does the decision of the Wisconsin Supreme Court

violate the petitioner’s right to due process of law as

guaranteed to the petitioner by the Fourteenth Amend-

ment to the United States Constitution in that the prose-

cuting attorney interrupted the closing argument of coun-

sel for the petitioner and effectively stated to the jury that

evidence existed which would be harmful to the peti-

tioner or that the petitioner was responsible for the denial

of the receipt of such evidence coupled with the failure

of the trial court to give appropriate admonitions to the

jury to disregard such “testimony” ?

10. Does the decision of the Wisconsin Supreme Court

violate the petitioner’s right to due process of law as

guaranteed to the petitioner by the Fourteenth Amend-

ment to the United States Constitution in that the State

failed to disclose exculpatory evidence to the grand jury?

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES

Fourth Amendment

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the Assistance

of Counsel for his defence.

OO <<<

Fourteenth Amendment

Section |. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

WISCONSIN STATUTES INVOLVED

Section 133.01,

Unlawful contracts; conspiracies.

Wisconsin Statutes:

(1) Every contract or combination in the nature of a

trust or conspiracy in restraint of trade or commerce is

hereby declared illegal. Every combination, conspiracy,

trust, pool, agreement or contract intended to restrain or

prevent competition in the supply or price of any article

or commodity in general use in this state, to be produced

or sold therein or constituting a subject of trade or com-

merce therein, or which combination, conspiracy, trust,

pool, agreement or contract shall in any manner control

the price of any such article or commodity, fix the price

thereof, limit or fix the amount or quantity thereof to be

manufactured, mined, produced or sold in this state, or fix

any standard or figure in which its price to the public

shall be in any manner controlled or established, is here-

by declared an illegal restraint of trade. Every person,

corporation, copartnership, trustee or association who

shall either as principal or agent become a party to any

contract, combination, conspiracy, trust, pool or agree-

ment herein declared unlawful or declared to be in re-

straint of trade, or who shall combine or conspire with

any other person, corporation, copartnership, association

or trustee to monopolize or attempt to monopolize any

part of the trade or commerce in this state shall forfeit

for each such offense not less than $100 nor more than

$5,000. Any such person, corporation, copartnership, trus-

tee or association shall also be liable to any person transact-

ing or doing business in this state for threefold the damages

he may sustain by reason of the doing of anything for-

bidden by this section and the cost of suit including a

reasonable attorney's fee. As used in this section, the words

“article or commodity in general use in this state” in-

cludes newspapers, magazines, periodicals, and advertis-

ing, including radio advertising. Nothing in this section

or section 133.21 shall be construed as abridging the lib-

erty of speech or of the press guaranteed by article I, sec-

tion 3, of the constitution.

(2) The department of justice shall enforce this sec-

tion and bring an action for the recovery of the forfeiture

whenever complaint is made to the attorney general and

evidence produced to his satisfaction that there has been

a violation. Any district attorney shall institute such

actions or proceedings as the attorney general deems

necessary to recover any forfeiture incurred on account of

the violation of this chapter. A representative of the de-

partment of justice designated by the attorney general

may appear as counsel in any such case.

(3) Whoever violates sub. (1) may be fined not more

than $5,000 or imprisoned not more than § years or both.

STATEMENT OF THE CASE

This case involves the conviction of the petitioner for

violating §133.01(1), Wis. Stats., the Wisconsin “little”

Sherman Act. The petitioner was indicted by a grand

jury sitting in Madison, Wisconsin on February 28, 1973,

along with two of its employees, Peter Abeles and Me-

Kinley Standridge. The petitioner was tried with one of

its employees, McKinley Standridge.

The petitioner and Mr. Standridge were first prepared

for trial on June 3, 1974 before the Honorable W. J.

ee Pie ease ms

16 Rie Pew

Ee ae ee a

Jackman, Circuit Judge, Dane County, Wisconsin. How-

ever, a mistrial was declared due to the inability to choose

a jury. A second mistrial was declared on October 5, 1974,

when the jury reported that it was deadlocked with re-

spect to both the petitioner and Mr. Standridge. The case

was then reassigned to the Honorable Norris E. Maloney,

Circuit Judge, Dane County, Wisconsin. At the second

complete trial, the jury acquitted Mr. Standridge and

convicted the petitioner, WASTE MANAGEMENT

OF WISCONSIN, INC. d/b/a CITY DISPOSAL

COMPANY. Post conviction motions were denied. A

$4,000 fine was imposed by the trial court." An appeal

was taken to the Wisconsin Supreme Court and the con-

viction was affirmed.

Prior to November 15, 1971, the principal competitors

in the City of Madison engaged in solid waste hauling

were: (1) James Pellitteri; (2) Phil Pellitteri, James’

uncle; (3) Jerry Beecher; (4) Richard Schultz; and

(5) Eckl Sanitation. The petitioner was not actively com-

peting in the City of Madison prior to November 15,

1971. On November 15, 1971, the petitioner purchased

Phil Pellitteri’s business and cn December 15, 1971 the

petitioner purchased Eckl | Jaitation thereby acquiring

approximately 60% of *** Mou son market. The peti-

tioner, Waste Managen «din business in Madi-

son under the name Ci i Company. James Pel-

litteri had approximate’ .5%o of the market while Jerry

Beecher and Richard Sc? sltz shared the remaining 15%

of the market equally.

According to the testimony principally of James Pellit-

teri, commencing in November of 1971, James Pellitteri

was asked by Peter Abeles not co take customers of the

1 Peter Abeles has not been tried to date. Extradition proceedings are

still pending.

petitioner while the petitioner was merging the routes of

the two companies which is was purchasing. By January

15, 1972, James Pellitteri according to his testimony, be-

carne concerned about his actions and sought advice from

his attorney, Bruce Gillman. Shortly after this, Mr. Gill-

man contacted the office of the Attorney General of Wis-

consin and produced tape recordings of telephone conver-

sations between James Pellitteri and Mr. Abeles for the

consideration of the Attorney General’s office. At the re-

quest of the office of the Attorney General, James Pellit-

teri cyntinued to produce tapes of telephone conversa-

tions d¥ring the ensuing twelve months.

Sometime in the 1960’s, James Pellitteri and Jerry

Beecher had an agreement not to take each other’s ac-

counts and to notify each other if either received a call

from the other’s customers. At some point, Mr. Beecher

was told by James Pellitteri to contact Peter Abeles at

City Disposal.’ James Pellitteri’s corporation and Jerry

Beecher’s business were alleged to be unindicted co-con-

spirators in the indictment involved in this case.

Richard Schultz testified that in February of 1973 he

was contacted by McKinley Standridge of City Disposal

and that they had lunch together. According to Mr.

Schultz, during this lunch, Mr. Standridge advised Mr.

Schultz about the arrangement concerning City Disposal,

James Pellitteri and Jerry Beecher and asked him to join

into this understanding. According to Mr. Schultz, he re-

fused the invitation.

Mr. Standridge testified that he had no such conver-

sation with Mr. Schultz during this luncheon meeting at

* The precise date of this contact was a subject of dispute in the trial

with the petitioner contending that Mr. Beecher was so advised by

James Pellitteri after James Pellitteri beame an agent of the State of

Wisconsin.

ee es

‘4

)

Namio’s. Mr. Standridge also testified that he would

freely give price information on current accounts to any-

body who called since his prices were not a secret and

that he never agreed and knows of no agreement not to

take accounts. Mr. Standridge was ultimately acquitted

by the jury.

The petitioner consumed a substantial amount of time

during the trial to demonstrate that there was fierce com-

petition in Madison, Wisconsin before, during and after

the period of the alleged conspiracy and that there was

no impact on commerce with respect to any exchange of

price information, In fact, the petitioner proved that it

lost nearly $50,000 of annual business during the period

of the alleged conspiracy. The petitioner proved that

when James Pellitteri and Jerry Beecher obtained price

information from the petitioner, armed with that infor-

mation, they would often undercut or attempt to under-

cut the petitioner to take away business.

Toward the end of the first trial before Judge Jack-

man which resulted in a hung jury and a mistrial the

defendant, McKinley Standridge testified on his own be-

half. Assistant Attorney General Paul Gossens, while

cross examining Mr. Standridge, asked the following:

“Q. (By Mr. Gossens) Did you know that Waste

Management or by its previous name had ever been

involved in bidrigging?

Mr. Friebert (counsel for petitioner) ; Your Honor,

I object and move for mistrial.

Mr. Sutton (counsel for Mr. Standridge) :

for directed verdict. That’s intentional,

I move

The Court: He may answer.

A. No, I did not know.

Q. You didn’t know that at all?

A. No.

The Court: The jury is instructed to disregard that

question entirely.

Mr. Sutton: Will you rule on my motion?

Mr. Friebert: Motion for mistrial.

The Court: Denied.

Mr. Friebert: Both motions?

The Court: Yes.” (R. 1367)

On the morning of the next day of that first jury trial,

the petitioner pointed out to Judge Jackman, outside the

presence of the jury, that the petitioner had never been

convicted anywhere in the country of bidrigging. In

Milwaukee, in the 1960's, a corporation which had been

purchased by Waste Management was a defendant in a

civil case brought by the State which alleged certain

improprieties which allegedly occurred prior to the pur-

chase by Waste Management. An interim consent decree

was entered. Ultimately the entire case was dismissed.

Assistant Attorney General Gossens stated that his ques-

tion merely involved a civil consent decree which ex-

pired after a period of time. Judge Jackman asked

Assistant Attorney General Gossens whether he claimed

that Waste Management had ever been convicted of price

fixing. Assistant Attorney General Gossens acknowledged

that Waste Management had never been convicted of

price fixing. It was also acknowledged that Waste Man-

agement never admitted any wrongdoing in the interim

consent decree entered during the pendency of the civil

proceeding which was ultimately dismissed by the State.

During the ensuing discussion, Judge Jackman again

denied a motion for judgment of acquittal or mistrial

OS EARS Tai ed mel

Dg mgt

indicating that he would “take a verdict and see what

happens.” The petitioner then requested Judge Jackman

to specifically advise the jury that Waste Management

under its present or any other name had never been con-

victed of any charge involving restraint of trade and

that the question asked was improper. Judge Jackman

in denying the request indicated that he had already

advised the jury to disregard that question and that he

was “not going to say a word because I think its preju-

dicial anyway, prejudicial to the defendants to even men-

tion it.” The Court then indicated that it appreciated

the fact that the petitioner had been put into that position

due to the asking of the question. (R. 1410-1415).

That first trial resulted in a mistrial because the jury

was unable to reach a verdict. The case was then assigned

to Judge Maloney. The petitioner moved the trial court

for the entry of an order prohibiting further prosecution

due to the prosecutorial misconduct of Assistant Attorney

General Gossens in the first trial. (R. 1707, 2508-2515).

Judge Maloney conducted a hearing on this issue in

1975. Assistant Attorney General Gossens testified® that

he asked that question because it was his understanding:

“that Mr. Standridge had testified on direct ex-

amination that when he took employment with Waste

Management he investigated the philosophy of the

company, and his testimony was to the effect that

the philosophy of this company would never allow

it to engage in price fixing.” (R. 2102-2103).

The record does not support that claim. The actual

testimony of Mr. Standridge in the first trial was that

the philosophy of Waste Management “was that we never

* At the time of this testimony Mr. Gossens had left the office of the

Attorney General and was in the private practice of law.

changed our price in order to get an account from a

competitor.” (R. 1336). Assistant Attorney General

Gossens during his cross examination of Mr. Standridge

in the first trial asked Mr. Standridge whether he checked

‘into Waste Management's background before” deciding

to work for Waste Management. Mr. Standridge an-

swered by saying he had not checked into Waste Man-

agement’s background. (R. 1364).

Assistant Attorney General Gossens further testified

in the 1975 hearings before Judge Maloney that he had

seen in his files an unexecuted copy of a judgment for

the Milwaukee civil case which appeared to him to

enjoin Waste Management from violating the Wisconsin

trade laws. He assumed without checking further that

judgment had been entered in that civil case and that

was the matter to which he was referring in his cross

examination questions of Mr. Standridge. Mr. Gossens

indicated that subsequently he discovered that no judg-

ment had ever been entered and that there was only the

entry of a temporary restraining order which expired

when the civil case was dismissed. (R. 2103).

Assistant Attorney General Gossens also testified that

in his judgment the testimony of his star witness, James

Pellitteri in the first trial was hurt on cross examination

and that he “had hoped Pellitteri would have stood up

better.” (R. 2116). Assistant Attorney General Gossens

stated that Pellitteri “didn’t come off as well as I would

have liked.” (R. 2117). He further indicated that Mr.

Beecher in the first trial was hurt on cross examination

even though he felt he was reconstructed on redirect. (R.

2117).

Judge Maloney denied the motion to dismiss on the

grounds of former jeopardy due to prior prosecutorial

ee AP Rt BG Sw

’

;

‘

misconduct. Judge Maloney stated that the rule of law

relied upon by the petitioner was not applicable because

no mistrial was declared in the first trial due to the re-

marks made by Assistant Attorney General Gossens.

Judge Maloney held that the constitutional rule relied

upon by the petitioner was not applicable when a mistrial

was declared due to a hung jury. Judge Maloney went

on to state the following:

“However, in view of the fact that this Court did

allow testimony bearing upon the subject matter of

the purposes of the prosecutor, I hereby make the

Finding of Fact that Mr. Gossens’ highly improper

question was prompted not because of a fear that he

had already lost the case, but out of the spirit of

overzealousness in an attempt to counteract the testi-

mony of Mr. Standridge that he had joined the de-

fendant corporation because of their outstanding

reputation.” (Emphasis supplied). (R. 2613, Ap.

40).

The issue was presented in the post-conviction motions

(R. 4106-4136, Ap. 55-67) to the trial court and pre-

sented on appeal to the Wisconsin Supreme Court. (Ap.

66). The State of Wisconsin in its brief conceded that

this questions by Assistant Attorney General Gossens

was not proper and that Judge Jackman sustained an

objection to the question. The State of Wisconsin argued

that the former jeopardy rules due to improprieties of

prosecutors is not applicable unless a mistrial was de-

clared due to the impropriety and that because the first

trial before Judge Jackman terminated due to a hung

jury that all questions of such improprieties disappeared.

(Ap. 69). In affirming the conviction of the petitioner,

the Wisconsin Supreme Court did not discuss this issue

in its opinion.*

One of the hotly contested issues in the first trial con-

cerned a date when James Pellitteri and Jerry Beecher,

the other unindicted co-conspirator, were supposed to

have met for the first time and discussed the alleged

conspiracy. The date was important because when James

Pellitteri became an agent for the State in January of

1972, the State agreed that, as a matter of law, any al-

leged conspiracy terminated with respect to him. Counsel

for Waste Management wished to explore the possibility

that the meeting occurred, if at all, after James Pellitteri

became a State agent and, consequently, that there was

never any conspiracy involving Mr. Beecher.

Mr. Beecher testified that the meeting took place in

late November of 1971. The defense moved for the

production of the grand jury testimony of Mr. Beecher

in the first trial to determine what he had told the grand

jury about that date. Assistant Attorney General Gos-

sens successfully resisted this motion. Prior to the sec-

ond jury trial, after the hung jury, Judge Maloney or-

dered the production of all of the transcripts of the grand

jury proceedings. It turned out that Mr. Beecher had

testified under oath before the grand jury that the meeting

with James Pellitteri took place in January of 1972,

therefore supporting the defendant’s position regarding

this important event.

The prosecutors were under a general order prior to

the first trial to disclose all exculpatory evidence to the

defense. The prosecution team consistently stated that

4 The briefs of both parties are referred to here and elsewhere in

the Petition and printed in part in the Appendix to demonstrate that

those federal issues were properly presented to the Wisconsin Supreme

Court but not discussed by that Court.

they did not know of any exculpatory evidence and

therefore turned none over. After the first trial resulted

in a hung jury and in the hearings in 1975 before Judge

Maloney, counsel for James Pellitteri, Mr. Gillman,

testified that James Pellitteri told him in January of

1972 that his action in refraining from taking Waste

Management’s customers was motivated by a desire to

protect his uncle, Phil Pellitteri, whom he believed was

owed approximately $30,000 by Waste Management as

a result of the buy-out agreement between Waste Man-

agement and Phil Pellitteri. The petitioner inquired why

that point had not been divulged prior to the first jury

trial. Assistant Attorney General Marvin Strawn ad-

vised the trial court that this had not been previously

divulged because that was the first time that the State

had ever heard about this claim and that the testimony

was wrong. (R. 2425-2427). However, later, in com-

pliance with the order of Judge Maloney to divulge all

grand jury transcripts, the following testimony, previous-

ly suppressed, appeared in the testimony of James Pel-

litteri to the grand jury:

“Q. At this time would you tell the jury why you

didn’t raid him? [referring to Peter Abeles, em-

ployee of the petitioner] I mean here he is, here

is a guy set out in front of you waiting to be stomped

on.

A. They were holding back twenty-five or thirty

thousand dollars from what they owed Phil for buy-

ing his business and I didn’t want to jeopardize —

Q. Phil is your uncle?

A. My uncle.

Q. And were there any other reasons?

- ie that’s all.” (Emphasis supplied). (R. 2510-

The petitioner moved the trial court for the entry of

an order prohibiting a retrial as a result of all of the

combined prosecutorial misconduct in the first jury trial.

(R. 2508-2515). The trial court denied the motion; it

was presented in post-conviction motions (R. 4106-4136,

Ap. 55-65) and presented to the Wisconsin Supreme

Court (Ap. 66) but as pointed out previously, that

Court chose not to discuss the issue.

Prior to indictment, McKinley Standridge was sub-

poenaed to appear before the grand jury in late Feb-

ruary, 1973. An Assistant Attorney General, Daniel

Milan, was asked by counsel for Mr. Standridge whether

there were any wire taps. Assistant Attorney General

Milan responded by saying, “There are no Justice De-

partment wire taps.” (Ap., p. 411) Shortly after this

inquiry, the grand jury excused Mr. Standridge from his

subpoena. The indictment was presented on February

28, 1973.

On March 16, 1973, John Wiedow, a private investi-

gator hired by the petitioner, went to the petitioner’s

offices with a radio frequency locator device. Upon en-

tering one of the offices, the device registered the presence

of an intense radio frequency signal. Mr. Wiedow ad-

justed the machine so that it could discriminate the in-

tensity of this radio frequency signal. Mr. Wiedow then

commenced walking around the room and noticed that

the signal was more intense as he approached the tele-

phone in that office and decreased in intensity as he

moved away from the telephone in that office. Thus, the

signal appeared to be radiating from the telephone. No

other room showed the presence of radio frequency on

March 16, 1973.

pelt Yo NO WR EES ote oe

wee oe Set A

The presence of radio frequency signals was indicated

on two places on this device. First of all, an indicator

dial on the device showed the presence of an intense radio

frequency signal. Secondly, Mr. Wiedow was wearing

earphones connected to the device and the earphones

produced a squealing effect similar to a feedback pattern.

Upon removing the cover of this telephone, Mr. Wie-

dow discovered a pair of wires connected to a terminal

in the phone. The wires had nothing to do with the

operation of that phone. They should have been un-

dedicated wires. Wiedow disconnected these two “un-

dedicated” wires. Upon disconnection, his radio frequen-

cy locator device indicated no radio frequency signals.

Mr. Wiedow then placed the wires near his radio fre-

quency locator device. Upon completion of this pro-

cedure, his device again registered the presence of in-

tense radio frequency signals. Thus, the ‘“undedicated”

wires in the telephone were in use and were being used

to create radio frequency signals. Telephones do not

emit radio frequency energy. Mr. Wiedow searched the

premises in an effort to find the transmitter without success.

He left the wires disconnected and left the premises.

Mr. Wiedow returned to the premises on March 20,

1973. He rechecked the wires but his radio frequency

locator device did not react indicating that there was at

that time no source of radio frequency energy associated

with the phone.

Mr. Wiedow testified at the hearings held before Judge

Jackman and Judge Maloney that in his opinion there

was a radio transmitter associated with the phone and

that the transmitter was sending conversations from the

office. He further stated on cross examination that his

opinion was often checked with the designer of this ma-

chine and that the designer concurred in this conclusion.

(R. 414-439, 579-580, 1805-1843).

Edward F. Sokol, a defense expert witness, testified

in great detail on the operation of the radio frequency

locator device. Mr. Sokol stated his professional opinion

that a radio transmitter associated with the telephone in

the Waste Management office was the only explanation

for the radio frequency perceived by Mr. Wiedow’s lo-

cator device. Mr. Sokol systematically excluded every

other conceivable explanation which could have had such

an effect upon the radio frequency locator device em-

ployed by Mr. Wiedow. In Mr. Sokol’s professional

opinion, a transmitter was associated with that telephone

on March 16, 1973 and this transmitter was removed by

March 20, 1973. The transmitter could have been lo-

cated on or off the premises. (R. 592-658, 1988-2046).

No electronic experts refuted the testimony of Mr.

Wiedow or Mr. Sokol. The State merely produced a

telephone company employee, Dennis Lein, who testified

that the two “undedicated” wires in the telephone should

not have been tied down to any terminals and that they

served no purpose in the telephone as set up by the tele-

phone company. Mr. Lein could offer no opinion wheth-

er there was a transmitter associated with the telephone

on March 16, 1973. (R. 504-558, 2273-2313).

The State denied any knowledge of or involvement in

illegal electronic surveillance of the premises. This was

accomplished by the filing of affidavits which in general

denied any knowledge of any illegal electronic surveil-

lance and which asserted that the only electronic sur-

veillance known to the Department of Justice were tapes

of telephone conversations prepared by James Pellitteri

and turned over to the Department of Justice. According

SO eer er an ne bithaste

ee ee nee ee or Se SoS Sees

to these affidavits, these tapes were the product of Mr.

Pellitteri tape recording his own personal telephone con-

versations.” (R. 119-125, 127-129, 211-212; Ap. 45-55).

Evidentiary hearings were held before both Judge

Jackman and Judge Maloney. Judge Jackman held that

the petitioner had not established any State involvement

in any illegal electronic surveillance. (R. 702-704).

Judge Maloney held that the petitioner had established

a prima facie case of RF energy associated with a phone

in the City Disposal office. The trial court further held

that the prima facie case established was insufficient to

place blame upon the State and that the State’s denials

refuted any claim that the State participated in any

wrongdoing. (R. 2602-2612, Ap. 26-39). On appeal, the

Wisconsin Supreme Court affirmed relying upon the de-

cision of both judges. (81 Wis.2d 569-570; Ap. 7-9).

Prior to the original hearings before the first judge,

Judge Jackman, the petitioner discovered that the State

had become aware of a meeting between Mr. Standridge,

the accused employee who was ultimately acquitted by

the jury, and Richard Schultz, one of the competitors of

Waste Management. This meeting was arranged by tele-

phone and took place on February 7, 1973 at a luncheon

spot in Madison, Wisconsin known as Namiio’s. Schultz

related in an interview with an investigator of the peti-

tioner, Allen Leisten, that he was interviewed by Assistant

Attorney General Paul Gossens shortly after this lunch-

eon meeting. According to Mr. Schultz the State knew

5 There were occasions when Mr. Pellitteri was utilizing a trans-

mitter supplied by the Department of Justice and where attempts were

made to record these transmissions. These were employed with con-

versations which James Pellitteri was having with Mr. Abeles.

about this luncheon meeting at Namio’s between Stand-

ridge and Schultz prior to his meeting with Assistant

Attorney General Gossens. Mr. Schultz gave a written,

sworn statement to Assistant Attorney General Gossens.

The testimentary hearings held before Judge Jackman

commenced on July 3, 1973 with respect to the peti-

tioner’s motions concerning illegal electronic surveillance.

One of the specific issues presented was whether the

State learned about the Namio’s luncheon meeting be-

tween Schultz and Standridge by employment of illegal

electronic surveillance devices. The explanation of the

State at that first hearing through testimony elicited by

Assistant Attorney General Gossens was that the State

did not have prior knowledge of the luncheon meeting

at Namio’s and further that the Attorney General’s source

of this information was Mr. Schultz himself. The testi-

mony of Mr. Schultz as elicited by Assistant Attorney

General Gossens supported the claim that the State had

absolutely no knowledge of this meeting at Namio’s prior

to talking to Mr. Schultz. This testimony was false.

The critical testimony of Mr. Schultz was:

“Q. [By Mr. Finerty, attorney for petitioner] All

right. Well, to shorten things up, within a few days

after that meeting, were you contacted by the At-

torney General’s office?

A. Yes, I was.

Q. And when they contacted you, they knew that

meeting had occurred, did they?

A. Yes, sir.

Mr. Finerty: That’s all.

Cross Examination by Assistant Attorney

General Gossens

Q. Can you give me the dates of the pertinent meet-

ings with Mr. Standridge, please.

eS ee ee ee ee

SSE ck Decslcee A Sa ed ee GOR ws Se SE nn ee EE

A. I only had one meeting with him.

Q. When was that, Mr. Schultz?

A. I don’t recall what date it was. I could find out,

but I can’t recall.

Q. O.K., and you say the Attorney General’s office

knew of the meeting?

A. Well, I don’t know if they knew of the meeting

or not. They contacted me a few days afterward.

Q. They asked you questions if you’ve ever had

any meetings, is that correct sir?

A. Yes, sir.

Q. Not only with Mr. Standridge, is that correct?

A. Yes, sir, that’s correct.

Q. They asked you tf you had had meetings with any

of the garbage people of the City of Madison, ts

that correct?

A. That’s correct.

Q. And you then informed the Attorney General’s

office that you had just had a meeting with Mr.

Standridge, is that correct?

A. That’s correct.

Q. Do you recall Mr. Gossens, myself saying to

you at that time, fantastic, or something to that effect?

A. I don’t remember exactly what was said.

Q. Do you recall when you were called in what the

purpose was, or what you were being called in for?

A. Not over the telephone, but when I got there, yes.

. When you were interviewed?

. Yes,

Q. What was that?

. There was an investigation into the price-fixing

in the rubbish business.

Q. And we asked you if you had talked with any

of the garbage haulers in the city of Madison, is

that correct?

A. That's correct.

Mr. Gossens: Thank you, that’s all.

Redirect Examination by Mr, Finerty

Q. I have one or two more questions. On June 26,

last, you met with a private detective by the name

of Allen Leisten, is that correct?

A. Yes.

Q. Do you know who Mr. Leisten is?

A. Yes, he’s an investigator for City Disposal.

Q. And he invited you — he took a statement from

you, did he not?

A. He never took a statement from me, You mean

a signed statement from me?

Q. No.

A. He talked to me.

Q. He talked to you, and you told him what hap-

pened?

A. Yes.

Q. Do you deny telling him that Ernie Smith (an

agent for the Wisconsin Department of Justice)

contacted you a few days after that meeting and

told you that he knew you, Schultz, had had a meet-

ing with Standridge and that he wanted to know

what took place at that meeting?

A. Yes, I deny that.” (Emphasis supplied) (R. 406-

409),

Assistant Attorney General Gossens’ cross examination of

Mr. Leisten, the investigator for Waste Management,

further drove home the false testimony of Mr. Schultz

before Judge Jackman. The critical testimony was:

“Q. [By Mr. Finerty}] And during your interview

with him [Mr. Schultz] on June 26, did you ask him

if the Attorney General contacted him following a

meeting between him and Mr. Standridge?

A. Yes, I did.

Q. What was his response?

A. His response was that he had been contacted on

the telephone by Ernie Smith. He responded to a

request from Smith to appear at the offices in the

Loraine Hotel. Upon his arrival there he was met

by Smith and subsequently was taken to or intro-

duced to Mr. Gossens and Mr. Haag. He was ad-

vised of his rights, as he put it to me, and was told

that an investigation was being conducted into the

rubbish removal and waste haulers in the Madison

area and he was also told that they knew he had just

recently been at a meeting with McKinley Stand-

ridge, and that they wanted to know what took place

at the meeting.

Mr. Finerty: Thank you, that’s all.

Cross Examination by Assistant Attorney

General Gossens

Q. Were you present today when Mr. Schultz testi-

fied, sir?

A. Yes, I was.

Q. Did you hear what he said?

A. Yes, sir, I did.

Q. Was it absolutely contradictory to what you're

saying now?

A. It certainly is, (Emphasis supplied) (R.448-449),

The result of that phase of the 1973 hearings before

Judge Jackman was that inquiry regarding the source

of knowledge of the Namio meeting was resolved in that

the State’s position presented by sworn testimony was that

Schultz himself was the source of this information to the

State. The issue simply disappeared.

Subsequent events disclosed that this testimony of Mr.

Schultz was false and that Assistant Attorney General

Paul Gossens knew it was false. In fact, the State knew

about the Schultz-Standridge meeting at Namio’s prior

to interviewing Mr. Schultz in February of 1973. Mr.

Schultz, in fact, was not the person who told Assistant

Attorney General Gossens about this Namio’s luncheon

meeting. This dramatic change occurred during the first

trial before Judge Jackman which resulted in the hung

jury. During the cross examination of Mr. Schultz,

Schultz testified that the Attorney General’s office had

prior knowledge of this meeting at Namio’s and that per-

sonnel of the Attorney General’s office had told him that

their source was James Pellitteri, (R. 1152-1153). This

testimony was elicited in the presence of Assistant Attor-

ney General Gossens.

After the mistrial was declared due to the hung jury,

and the case was reassigned, Judge Maloney ordered new

hearings on certain aspects of the electronic surveillance

issue. At these new hearings in 1975, Mr. Schultz testi-

fied contrary to his testimony before Judge Jackman in

the 1973 hearings. He now conceded that the State knew

about the meeting at Namio’s before he was interviewed

in February, 1973 and that he, Schultz, was not the source

of that information. However, Mr. Schultz repudiated

aspects of his trial testimony. Mr. Schultz now testified

that he had been told by personnel of the Attorney Gen-

eral’s office that their source was Phil Pellitieri,’ rather

than James Pellitteri. (R. 1845-1846).

Assistant Attorney General Gossens testified in May of

1975. He acknowledged that he personally knew about

the Namio’s luncheon meeting between Schultz and

Standridge prior to his interviewing Mr. Schultz in Feb-

ruary of 1973. According to Mr. Gossens, his source was

Phil Pellitteri (R. 2057-2058) rather than either Richard

Schultz or James Pellitteri. In an attempt to substantiate

this claim, Assistant Attorney General Gossens read from

his own memorandum of his interview with Phil Pellit-

teri which contained a reference to the meeting between

Standridge and Schultz. The memo is dated February

16, 1973, and commences in the dictation of Assistant At-

torney General Gossens with the statement “On Friday,

February 16, 1973”, Paul Gossens met with Phil Pellit-

teri. February 16, 1973 was in fact a Friday. Judge Ma-

loney denied a defense request to look at the original

memorandum. (R. 2059-2062).

On further examination, Assistant Attorney General

Gossens also testified that he personally interviewed Mr.

Schultz in 1973. The sworn statement of Mr. Schultz

was produced for Assistant Attorney General Gossens’

examination. Assistant Attorney General Gossens identi-

fied his signature and acknowledged that he was the

notary public for that statement. The Schultz statement

was dated by Mr. Gossens on February 15, 1973, the day

before Gossens’ memorandum showed that he met with

Phil Pellitteri. (R. 2066-2067).

® Phil Pellitteri is an uncle of James Pellitteri who owned a waste

hauling company in the Madison, Wisconsin area which had been pur-

chased by Waste Management in the fall of 1971.

The question involving the knowing use of false testi-

mony was first presented to Judge Maloney. Judge Ma-

loney never addressed the impact of the false testimony

which had been presented to Judge Jackman during the

examination of Mr. Schultz by Assistant Attorney Gen-

eral Gossens on July 3, 1973. Instead, Judge Maloney fo-

cused upon the events in 1975 by holding:

“The Court discounts the whole tempest in a teapot

concerning the alleged February 7, 1973 meeting at

Namio’s between Standridge and Schultz. The testi-

mony showed clearly that as of May and June, 1975,

Phil and James Pellitteri, Paul Gossens, Carl Zahn

and Richard Schultz were, collectively, hopelessly

confused as to who told whom about the meeting

when. To infer from this confusion that the Attorney

General learned about the meeting via electronic sur-

veillance would require a more breathtaking leap of

logic than the Court is prepared to make.” (Empha-

sis supplied) (R. 2610, Ap. 36).

The issue was presented to Judge Maloney in post-

conviction motions (R. 4106-4136, Ap. 55-65) and pre-

sented to the Wisconsin Supreme Court. (Ap. 1-21).

On appeal, the Wisconsin Supreme Court held:

“As to the existence of further illegal electronic sur-

veillance by the state, both trial judges found that

this did not occur. While there is contradictory evi-

dence in the records of the two evidentiary hearings,

we cannot conclude the trial courts’ findings of no

electronic surveillance by the state to be against the

clear weight and clear preponderance of the evi-

dence.” 81 Wis. 2d at 570, Ap. 9.

The Wisconsin Supreme Court at no place specifically dis-

cussed the issue concerning the use of false testimony be-

fore Judge Jackman in the 1973 hearings.

The State acknowledged the existence of tape record-

ings of telephone conversations of two employees of Waste

Management. It was the State’s position that these tele-

phone recordings were made by James Pellitteri, the chief

operating officer of a competitor of Waste Management

and an unindicted co-conspirator. Throughout most of the

period of his recorded phone conversations, James Pellit-

teri was an agent of the State. According to Mr. Pellitteri,

all of the tape recordings were made by employment of

recording equipment in his office all of which constituted

“one-party consent” tapes, not taps, and that this was the

only electronic surveillance that either Mr. Pellitteri or

the State knew about. The only method employed for re-

cording telephone conversations acknowledged was utili-

zation of a suction cup device on Mr. Pellitteri’s own

phone by Mr. Pellitteri.

The petitioner commenced asking for an opportunity

for examination of the original Pellitteri tapes in 1973.

The State objected at all times. Judge Jackman refused

to order the state to produce the original tapes for analy-

sis. Thus, prior to the first jury trial, the petitioner was

not allowed to have the original tapes examined.’

7 The importance of examination was demonstrated by the fact that

the end of one of the tapes contains interruptions which are dramatically

different from what is heard on any other tapes. That tape contains

the following:

“T1] 2 sec. hum, no background speech

[2] 44 sec. period of hum and fugitive noises having a different

signature than that of Event [1]. Human voice present, dis-

tributed as follows:

0:00

0:01 Unintelligible

0:01

0:10 “Now Marty intends the (to) part (particular), (par-

ty). They have some technical difficulty. Okay? Now

just talk.”

After the hung jury, the case was transferred to Judge

Norris E. Maloney. Again, the petitioner moved the

trial court to order the State to produce the original tapes

for examination by experts. The State countered this mo-

tion with an offer to have James Pellitteri submit himself

to a polygraph examination in lieu of turning over the

original tapes. Judge Maloney agreed with this offer and

indicated that the test would have to be conducted by a

reliable polygraph examiner and that if Mr. Pellitteri

failed the test that the case would be dismissed. (R. 1724).

The internationally regarded John E. Reid of Chicago,

0:22

0:30 “We can fake it. Do anything. This may make a threat

to her. We don’t want any part of it.”

0:34 “Talk”.

[3] Approximately 0.25 sec. telephone dial tone.

[4] 5.5 sec. hum and noise similar to Event [2] but no voice

present.

[5] 16.5 sec. hum of new signature, unintelligible distorted voice

present.

[6] 4 sec. silence.

[7] 5.5 sec. hum.

[8] 1 sec. silence.

[9] 19.5 sec. female voice passage, interruption as noted:

0:00

0:11 “All right now we'll try this telephone and see if it’s

any better it might be coming in clearer on this one but

the other one’s got all the power behind it so I don’t see

how it could be any different than this one. Uhm. . .

(1.5 sec. speech cutout)

0:12.5

0:19 ... try this and see if you can get this one any better

because I’m I’m ah getting tired of trying to tell Phil

what (short interruption) I think that. . .” (speech

cut out to end of tape.)” (R. 4421).

James Pellitteri stated that the female voice (Event [9]) was his

mother’s voice and denied that any voices were his. Mrs. Pellitteri denied

that her voice was on the tape and stated that Event [2] was James

Pellitteri’s voice. James Pellitteri could offer no explanation for these

Events on his tape and he had no idea how this got on his tapes. (R.

1974-1975).

Illincis personally examined Mr. Pellitteri. Mr. Reid

concluded that Mr. Pellitteri was not telling the truth

when he denied involvement in illegal electronic sur-

veillance. The conclusions of Mr. Reid were as follows:

“There were significant emotional disturbances indi-

cative of deception on this subject's polygraph rec-

ords on the following listed questions:

(1) Were all the tape recordings of telephone con-

versations with City Disposal done with a suction

cup device? Answer: Yes.

(2) Did you or do you know of anyone who used

electronic eavesdropping devices at the Belt Line

Court office of City Disposal? Answer: No.

(3) To your knowledge or did you or has anyone

altered or edited the conversation originally record-

ed on any of the 8 tapes? Answer: No.

(4) At the time you entered into a Gentleman’s

Agreement with City Disposal was it your intention

to injure or cause harm to the City Disposal Com-

pany? Answer: No.

It is the opinion of the examiner, based on this sub-

ject’s polygraph records, that he is not telling the

truth on the above listed questions.” (R. 4459).

Despite the assurances of the trial court, Judge Maloney

refused to dismiss the case. The State indicated a desire

to challenge Mr. Reid’s conclusions and techniques. (R.

2326). Thus, the petitioner moved the trial court for an

opportunity to place this evidence of the polygraph ex-

amination before the Court with testimony to allow a

complete inquiry into Mr. Reid’s expertise and the basis

of his opinions. (R. 2360-2362) The trial judge refused

to provide a date for a hearing when John Reid could be

present in Madison, Wisconsin. Instead, the trial court

admitted the report of Mr. Reid, and then exercising its

own “expertise” in polygraph examinations, ripped it

apart in his decision by agreeing with the State that the

polygraph test which the State produced was not reli-

able.* (R. 2603-2604, 2608; Ap. 28-29, 33-34).

The question concerning the statement of Judge Ma-

loney that he would dismiss the case if James Pellitteri

failed the John Reid lie detector test and further the

issue concerning the refusal of the trial judge to provide

the petitioner with an opportunity for a hearing to pre-

sent this evidence followed by the trial court unilaterally

discounting the conclusions based upon its own “exper-

tise’ was presented to the trial court in post-conviction

motions. (R. 4106-4136, Ap. 55-65). The issue was then

presented to the Wisconsin Supreme Court.

The Wisconsin Supreme Court in its opinion complete-

ly misstated the record by asserting that Judge Maloney

had relied upon the polygraph examination of James Pel-

litteri in reaching his decision that there was no illegal

electronic surveillance. The Court stated:

“Jim Pellitteri also took a polygraph test to deter-

mine whether his version of the making of the tapes

was true. On the basis of the two hearings and the

polygraph test, J\UDGE MALONEY found that the

tapes were lawful one-party consent tapes and that

the defendant proved no other electronic surveillance

by the state.” (Emphasis supplied) 81 Wis. 2d at

569-570, Ap. 8.

This critical factual misstatement was pointed out to the

Wisconsin Supreme Court on rehearing, but the Motion

for Rehearing was denied without comment.

* Judge Maloney relied in part upon another hearsay report from

Mr. Reid. A hearing would have shown that this was not intended by

Mr. Read to detract at all from his conclusions of deception. (R. 2362).

The trial judge assigned to the case after the hung jury,

Judge Maloney, ordered the State to produce all of the

original tapes for examination. The equipment and tapes

were transmitted to a Michael L. Hecker at Stanford

University on May 30, 1975. Mr. Hecker was designated

a court witness to be paid by the petitioner. A “mini-

report” from Mr. Hecker was transmitted on Friday,

June 20, 1975. The petitioner was directed by the trial

court te be prepared for an extensive testimonial hearing

by Tuesday, June 24, 1975. This report dated June 20,

1975 was a mere summary of the tests and Mr. Hecker

reported that a complete, detailed report would be leng-

thy. Mr. Hecker further reported that the complete re-

port would not be available on June 23, 1975. See general-

ly for most trial positions regarding Mr. Hecker. (R.

2357-2359).

It was the opinion of counsel for the petitioner that

substantial additional testing was necessary with respect

to one of the tapes.” The trial court ordered the petitioner

to decide within three days whether this additional test-

ing would be ordered and to be prepared within 24 hours

for a hearing with respect to this additional testing. The

trial court would not allow the petitioner prior to any

such hearing to be advised about the detailed results of

the tests or the scientific methods employed.

Counsel for the petitioner also informed the trial court

that he would require the entire detailed report prior to

any such hearing to properly prepare for the hearing.

The trial court denied this request. The petitioner also

advised the trial court that it was necessary to obtain inde-

pendent analysis by and consultation with defense experts

%See footnote 7, supra.

to properly prepare for a meaningful hearing. It was es-

timated that this would require several weeks of work.

Counsel for the petitioner also showed that a complete

report from Mr. Hecker could not be transmitted within

the time constraints and that it was impossible to be pre-

pared for any hearing due to the continued unavailability

of the full report. On June 27, 1975, Mr. Hecker stated

that he could complete the full report within one week

and on that same date the petitioner authorized funds for

this report. (R. 2442-2443). Repeated requests for an

adjournment of the trial to allow hearings on these reports

were denied. (R. 2478). The full report was not received

until July 21, 1975, the date set for the commencement

of the jury trial. No hearings were held with respect to

the reports of Mr. Hecker at any time. Instead, the tri il

court received the written reports of Mr. Hecker and

utilized them in its opinion. (R. 2602-2605, Ap. 26-31).

This denial of confrontation was objected to through-

out the pre-trial proceedings (R. 2366, Ap. 65) and

was again raised to the trial court in post-conviction mo-

tions. (R. 4106-4136, Ap. 55-65). The issue was presented

to the Wisconsin Supreme Court (Ap. 66) and that

Court, without specifically discussing the issue, held that

the trial court’s finding was not against the great weight

and clear preponderance of the evidence. 81 Wis. 2d at

570, Ap. 9.

Throughout the pre-trial proceedings, Judge Maloney

indicated that impeachment questions would not be al-

lowed since credibility issues were for the jury.

“The Court: You are not going to be given a chance

of cross examination for impeachment. You will have

to do that in the trial. That is where impeachment

counts, at the trial.

Mr. Friebert: The Court has to make credibility

judgments in these proceedings, too, and there is a

tape here in which the fugitive voice which was a

fugitive voice to us has now been identified as Doro-

thy Peilitteri by her son, and we want to ask her

about it.

The Court: What do you want to ask her? You want

to ask her whether or not when she testified on the

trial was the first she learned of the tape was some-

time in August or some other later date, and that that

obviously — that tape would indicate that she was

mistaken?

Mr. Friebert: Well, we'd like to hear her testimony.

The Court: Well, you may like it, but what effect

does it have? It doesn’t have any effect upon those

tapes going out to California.”

Mr. Friebert: She may have a different story.

Mr. Hirschberg: And we want to know whether or

not that voice is hers and we want to know —

The Court: There isn’t any issue raised by the At-

torney General that it isn’t her voice.

Mr. Friebert: But we do.

Mr. Hirschberg: We do, we want to know.

“The Court: Well, I am just warning you. There

will be a stringent limitation. You are not going to

get an opportunity of impeachment. That is some-

thing that has to come at the trial. J have made my

ruling. I will hear you when you get her on the stand.

I will hear what is going on. I will recognize it. Jf

it is impeachment pure and simple, it will not go any

further.” (Emphasis supplied). (R. 2126-2128).

“Q. And when in relation to that meeting did you

first learn about the existence of the tape recorder?

Mr. Strawn: Judge, could I inquire into the reasons

for these questions at this time? I don't see their pur-

pose except maybe as impeachment.

The Court: He stated it was for the purpose of ask-

ing her if it refreshed her memory.

Mr. Strawn: But the line of questioning, I don’t see

any point init unless they are trying to impeach her.

The Court: Is there a question pending?

(Whereupon the Reporter read back the last question

asked of the witness by Mr. Hirschberg)

The Court: Her answer? Did she answer that ques-

tion?

Mr. Hirschberg: No, Your Honor.

The Court: You may answer.

A. Well, I am trying to think of when it was. I think

it was shortly before we met with Pete.

Q. Did you know about the existence of the tape re-

corder in May of 1972?

A. No, I didn’t know of it that soon before we met

with Pete.

Q. Did you know about the existence of the tape re-

corder in June of 1972?

The Court: Now, this is impeachment purposes. I

think I will call a halt to tt. \f this lady is a witness

during the next trial, if there is a trial, it is very prop-

er to impeach her if you can; but you are not entitled

to three or four runs at the cat.” (Emphasis sup-

plied). (R. 2158-2159).

“Mr. Hirschberg: It doesn’t go to that time because

it was — the time was in August and that is subse-

quent to the time the tape was recorded.

Mr. Strawn: That merely shows that she is mistaken

about the time.

Mr. Hirschberg: The Pellitteris have been mistaken

about a great deal.

The Court: Questions of credibility are not before

me at this time. You bring that out in front of the

jury.

Mr. Hirschbefg : I think the Court has to make a

credibility determination in deciding the motion, if

you have heard the witness’ testimony.

The Court: What do you mean if I have heard it?

Mr. Hirschberg: People testify in court Judge, and

one of the traditional ways that Courts base their

rulings and things is based in part not only upon

what they say, but upon how they say it, and the cred-

ibility of the witnesses on the stand, and I think in

order for you to decide this motion, you are going to

have to make credibility determination as to the wit-

nesses that appear before you.

The Court: Yes, I am sure I do. Let me read this

spectrographic stuff here.” (Emphasis supplied).

(R. 2335-2336).

A formal Objection to Refusal to Allow Impeachment

Questions was filed. (R. 2363). The issue concerning the

necessity for the trial judge to allow impeaching questions

in pretrial hearings iavolving Fourth Amendment issues

was presented to the trial court on post-conviction motions

(R. 4106-4136, Ap. 55-65) and to the Wisconsin Supreme

Court on appeal. (Ap. 1-21). The Wisconsin Supreme

Court held that “this court will not substitute its judg-

ment for that of the trial court in matters of credibility.

81 Wis. 2d at 570, Ap. 8. No comment or discussion was

made by the Wisconsin Supreme Court with respect to

whether the trial court disallowed questions which chal-

lenged credibility.

The trial court authorized at least four amendments to

the indictment. Originally, the indictment charged the

petitioner with violating the second sentence of §133.01,

Wis. Stats., which is inapplicable to services and is a

section which does not track the Sherman Act. The

original indictment of the grand jury charged the peti-

tioner with:

Commencing in the year 1970, the exact date being

unknown to the Grand Jury, and continuing there-

after until at least February, 1973, in the County of

Dane and State of Wisconsin, the defendants and

co-conspirators named herein did feloniously engage

in an unlawful combination and conspiracy intended

to restrain competition in the supply or price of an

article or commodity which is the subject of trade

or commerce in this State.” (Emphasis supplied

showing deletions and changes). (R. 4).

The indictment was formally amended four times before

trial on motion of the State. The case was never repre-

sented to a grand jury. Finally, the charging paragraph

became:

“Commencing in November, 1971, the exact date

being unknown to the Grand Jury, and continuing

thereafter until at least February, 1973, in the Coun-

ty of Dane, and State of Wisconsin, the defendants

and co-conspirators named herein did feloniously

engage in an unlawful combination and conspiracy

to restrain trade or commerce in this state.” (R.

2717-2718).

The grand jury also charged in Paragraph 20 of the

indictment that the conspirators affected or attempted

to affect the waste removal bids or quotes for 49 separate

business entities. (R. 107-108). The petitioner put in

substantial proof that no bids or quotes were affected as

a result of this alleged agreement. In fact, this was a

major basis for the defense. However, the trial court

in instructing the jury deleted all references to effects

upon commerce. (R. 3828). The trial court charged the

jury that the crime contained in the indictment was com-

mitted once an agreement was reached even though there

were no effects upon commerce and even though there

were no overt acts. The jury was told: “It is not neces-

sary that the conspiracy achieve its object or be success-

ful.” (R. 3834).

The petitioner objected to every formal amendment

to the indictment and objected to the instruction whereby

Paragraph 20 of the indictment was deleted from the

indictment. The issue was again presented on post-con-

viction motions and presented to the Wisconsin Supreme

Court. The Wisconsin Supreme Court held that the

formal amendments to the indictment were matters of

form rather than substance and in no way prejudiced

any rights of the petitioner. 81 Wis.2d 566-567, Ap. 4-5.

With respect to the instruction to the jury which re-

moved Paragraph 20 from the indictment, the Wisconsin

Supreme Court said that Wisconsin law followed de-

cisions of the United States Supreme Court on the Sher-

man Act and that effects upon commerce need not be

proven since the gist of the crime was a mere conspiracy

or an agreement. 81 Wis.2d 574, Ap. 12-13. The Wis-

consin Supreme Court did not specifically discuss wheth-

er the deletion of Paragraph 20 from the indictment was

permissible.

Over objection, the trial court also instructed the jury:

“When there are no circumstances to prevent or

rebut the presumption, the law presumes that a rea-

40)

sonable person intends all of the natural, probable

and reasonable consequences of his deliberate acts.”

(R. 3692-3693).

The issue was properly presented to the Wisconsin Su-

preme Court. The Wisconsin Supreme Court held:

“The defendant’s objection to the instruction that a

person is presumed to intend the natural conse-

quences of his deliberate acts is without merit in

Wisconsin.” 81 Wis. 2d 582, Ap. 21.

Petitioner also offered the following instruction:

“The essence of the offense of conspiracy is that

there must be an agreement between the parties.

I have previously instructed you that the object of

the conspiracy need not be achieved. The defense

has introduced evidence which demonstrates a course

of conduct of all parties both before, during and

after the alleged conspiracy. If you find that there

was no substantial change in the course of conduct

throughout this period of time, you may infer, but

you need not do so, that there was never an agree-

ment between the parties as alleged in the indict-

ment. Evidence of competition between the alleged

conspirators creates an inference that there never

was a conspiracy. It is for you, the jury, to deter-

mine the strength of the inference and the weight

which you want to give it.” (R. 4015).

The trial court refused to give this instruction. The

issue was properly presented to the Wisconsin Supreme

Court. The Wisconsin Supreme Court held:

“Because we have held in this opinion that in prov-

ing price fixing, bid rigging and market allocation

the state was not required to prove an actual injury

to competition, we uphold the trial court’s refusal

to instruct the jury that evidence of competition be-

tween co-conspirators creates an inference that no

conspiracy existed.” 81 Wis. 2d at 582, Ap. 21.

The trial court instructed the jury upon agreement

prior to closing argument. One of the instructions given

which is a fairly standard one throughout the country

was as follows:

“The witnesses, Pellitteri and Beecher, have testified

on behalf of the State, and if their testimony is true,

they participated in the crime charged against the

defendants and are accomplices therein. You are

instructed that the evidence of an accomplice is

competent evidence in a criminal case upon which

to base a verdict of guilty, provided it is of such

character taken in connection with all the other evi-

dence in the case as to satisfy you of the guilt of the

defendants in such case beyond a reasonable doubt;

but ordinarily it is unsafe to convict upon the un-

corroborated testimony of any accomplice. Corrob-

orating evidence is any credible evidence given by

any witness who is not an accomplice, or documenta-

tion from any source other than an accomplice. * * *”

(R. 3843-3844).

During the closing argument of counsel for the peti-

tioner the following occurred:

“Now Pellitteri and Beecher were accomplices in

this case, and the Judge has read you a lengthy in-

struction about the law with respect to accomplice

testimony. These instructions, by the way, were not

developed over night or during the course of this

trial. They have been developed over the centuries

of American and English and beyond Biblical juris-

prudence of the history of mankind. These things

don’t spring up within the middle of a trial. They

are based upon the experience of mankind, and here

is what the Judge said to you about accomplice testi-

mony, and it is extremely important to the defense

and I will read the whole thing to you.”

[Instruction read |

* * *

And we have Ernie Smith who may be big, but

I don’t think it is funny,-all around this case, he

is hiding in Jim Pellitteri’s mother’s house. On June

13 he gets there, Ernie Smith from the defendant,

from Pellitteri, but this one he doesn’t get until

February of 1973 [referring to slips.of paper in evi-

dence allegedly containing bids obtained from Mr.

Abeles] and it is Jim’s testimony that he got this

in May of 1972, but where did he get it? He has

seen Peter Abeles lots of places, lots of places.

It doesn’t take very much for a person who will

willingly lie and cheerfully lie in the name of his

lawyer or the name of the State. It doesn’t take

very much, and the Judge’s—as I have already

pointed out, because he is an accomplice — I have

read this in full to you: The Judge says “corrob-

orating evidence is any credible evidence given by

any witness who is not an accomplice, or documenta-

tion from any source other than an accomplice.”

This is not corroborating evidence.

The source is Jim, The liar. The cheat. The fraud.

The play actor.

Mr. Strawn: Judge,I object. He was not an accom-

plice at that time or working for the State.

The Court: That was May of ’72, was it not?

Mr. Strawn: Yes, tt was. He-was not an accomplice

after January of 1972.

The Court: The jury will understand that, that

after January 15th of ’72 he was not an accomplice,

notin the conspiracy.

Mr. Friebert: The ex-accomplice, now undercover

agent, prevaricator of lies in the name of his under-

cover work. There is no corroboration for this. There

is no Ernie Smith saying on this stand in this case

to testify about that or other agents of the State.

There are no handwriting experts. There is no

fingerprint analysis. There is no individual evidence

on that. It is Jim —

Mr. Strawn: Judge, I object to that, and I think

we need a conference on that last series of state-

ments. I want an instruction on that.

Mr. Friebert: There was evidence in this case.

Mr. Strawn: You know very well why we couldn't

get evidence on that.

Mr. Friebert: I move for a mistrial.

Mr. Hirschberg: [Counsel for Mr. Standridge] I

join. | move for Judgment.

The Court: You are moving for Judgment?

Mr. Hirschberg: Judgment and mistrial.

Mr. Friebert: Yes.

The Court: Motion denied. Motion for mistrial is

denied. Proceed. (R. 3883-3901).

Outside the presence of the jury, counsel for the State

indicated that he had interrupted argument because it

was his position that he was unable to get fingerprints

or handwriting exemplars of Peter Abeles because he

was resisting extradition. The petitioner pointed out that

handwriting exemplars were available if the State had

subpoenaed these items and that Abeles’ fingerprints were

also available if the State had thought about this matter

prior to closing argument. Judge Maloney agreed that

fingerprints and handwriting exemplars were available

to the State prior to the trial. The petitioner offered

several instructions. The first was:

“Mr. Strawn’s objection to Mr. Friebert’s closing

argument concerned the difficulty of obtaining hand-

writing exemplars and fingerprints of Mr. Abeles.

Mr. Abeles had been arrested and his fingerprints

have been available to the State since March of 1973.

During the grand jury investigation the State could

have sought handwriting exemplars from the files

of City Disposal by subpoena, but such records were

never sought by the State.” (R. 3908).

This instruction was rejected by the Court. The peti-

tioner then made another request for an instruction:

“Mr. Friebert: And that left the implication that

there was evidence out there that has not been ad-

mitted, and that is my concern about this. I would

like to have some kind of an instruction to take that

away since his objection concerns handwriting ex-

emplars and fingerprints.

The Court: He didn’t get the handwriting/finger-

prints in front of the jury, did he? That was after-

wards.

(Discussion off the record. Court reporter reads

back notes of objection made in open court dur-

ing Mr. Friebert’s final argument.)

The Court: You made a move for mistrial, and I

denied that, so let’s go ahead.

Mr. Friebert: Then I'd like to have an alternate

instruction that Mr. Strawn was referring to finger-

prints and handwriting exemplars in his objection.

The Court: At that time he hadn’t referred to it.

Mr. Friebert: And I had referred to a lot of things

just before that, and I think that it should be made

clear to the jury that that is what Mr. Strawn was

referring to.” (R. 3909-3910).

The Court refused to give any instruction. The Court

merely stated te the jury that Mr. Strawn had withdrawn

his request for an instruction. (R. 3913).

These events produced several issues which were pre-

sented in the post-conviction motions and to the Wiscon-

sin Supreme Court. The first issue concerned the fact

that the first interruption effectively modified the stand-

ard jury instruction limiting the jury’s consideration of

a lack of corroboration to those times when an accomplice

was actually an accomplice, even though the standard

Wisconsin instruction does not contain any time limita-

tions. On this issue, the Wisconsin Supreme Court held:

“The court gave an instruction involving the weight

to be given the testimony of an accomplice. The de-

fendant did not request a similar instruction involv-

ing the weight to be given the testimony of an in-

former. During closing arguments the trial judge

told the jury that the witness Pellitteri was no longer

an accomplice after January 15, 1972, the date he

became an informer. The defendant contends that

this statement may have led the jury to believe it

could give greater weight to Pellitteri’s testimony

after January 15 than before. Since both parties

agreed at the time of trial that Pellitteri was no

longer a coconspirator after January 15, 1972, we

hold that the defendant has waived any claim of

error concerning the effects of the court’s instructions

by not requesting an informer instruction.” 8! Wis.

2d at 581, Ap. 20.

The second interruption concerns a statement made by

Assistant Attorney General Strawn which indicated the

existence of evidence which could not be introduced to

the jury or that counsel for the petitioner was somehow

responsible either for preventing the discovery of evi-

dence or for deceiving the jury in his argument. The

issue was presented on post-conviction motions and was

presented to the Wisconsin Supreme Court. The Wis-

consin Supreme Court held:

“During the defendant’s closing argument counsel

referred to the lack of corroborative evidence re-

garding two pieces of paper on which, Pellitteri

testified, one of the defendant’s agents Abeles had

written soine quotations for bids. The prosecutor

objected to this argument stating that, ‘You know

very well why we couldn't get evidence on that.’

The record shows that at the time of trial Abeles

was outside the jurisdiction of the court and was

challenging extradition from Illinois, but that the

jury was not told of this fact. The defendant moved

for a mistrial on the grounds that the prosecutor

erred in testifying about matters not in the record.

The trial court struck the prosecutor’s remark, but

refused to grant a mistrial. We hold that the trial

judge did not abuse his discretion in concluding

that the defendant was not denied a fair trial by

reason of his remark.” (Emphasis supplied) 81 Wis.

2d at 580-581, Ap. 20.

On Motion for Rehearing to the Wisconsin Supreme

Court, it was pointed out that the opinion contained a

misstatement of a material fact in that the record clearly

showed that Judge Maleney did not strike the remarks

of the prosecutor. The Wisconsin Supreme Court denied

the motion for rehearing without comment.

In the proceedings before the grand jury, Assistant

Attorney General Paul Gossens was apparently aware

that McKinley Standridge, an employee of the petitioner,

had stated to James Pellitteri that it would be illegal to

fix prices and that he would not do that. This exculpa-

tory evidence was not presented to the grand jury.

The trial courts held that a prosecutor is not obligated

to present exculpatory evidence to a grand jury. (R. 2600,

Ap. 26). The issue was properly presented on appeal to

the Wisconsin Supreme Court. The Wisconsin Supreme

Court held:

“The defendant claims the prosecutor was constitu-

tionally obligated to elicit testimony [before the

grand jury] concerning an exculpatory colloquy be-

tween witness Pellitteri and the defendant’s general

manager Standridge that is on the tapes. The con-

tents of the tapes are not admissible under Arnold,”

and the information they contained was made avail-

able to defendants at their request before trial. That

is all that was here required.” 81 Wis. 2d at 579,

Ap. 18.

Thus, the Wisconsin Supreme Court denied the peti-

tioner’s position that a prosecutor has a constitutional duty

to present exculpatory evidence to a grand jury for its

consideration.

REASONS RELIED ON FOR

ALLOWANCE OF WRIT

I. RECENT DECISIONS OF THIS COURT RE-

GARDING FORMER JEOPARDY AN-

NOUNCED AFTER THE DECISION OF THE

WISCONSIN SUPREME COURT MAKE THE

DECISION OF THE TRIAL COURT AND

THE WISCONSIN SUPREME COURT IN

CONFLICT WITH DECISIONS OF THIS

COURT.

In Sanabria v. United States, — U.S. — (1978), the

Court restated those occasions when the prohibition

against double jeopardy prevents reprosecution of a de-

fendant when there has been misconduct in a trial. Ab-

sent “prosecutorial or judicial overreaching... . retrials

after prosecution is terminated by a defendant's request

for a mistrial [are permitted ].” At footnote 15, the Court

again stated the constitutional parameters to be that “a

10 State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N.W.

2d 354 (1971).

new trial is permitted ... . where the defendant requests

a mistrial in the absence of prosecutorial or judicial over-

reaching, United States v. Dintiz, 424 U.S. 600 (1976).”

(Emphasis supplied).

This case presents a question of clear prosecutorial

overreaching in the first trial. As shown in the statement

of the case,’ Assistant Attorney General Gossens on cross

examination of Mr. Standridge completely and unwar-

rantedly smeared the petitioner before the jury. By his

questioning, he effectively stated to the jury that Waste

Management had been convicted of price fixing in the

past. Not only would such questions have been wholly im-

proper even if true, but Waste Management has never

been convicted of price fixing. In this case, the smear in-

volved a complete and reckless disregard for the truth and

is without any legal justification.

In his testimony in 1975 before Judge Maloney, Assis-

tant Attorney General Gossens stated that his purpose in

asking the prohibited question was to counteract Mr.

Standridge’s testimony to the effect that Mr. Standridge

had investigated Waste Management and knew that its

philosophy did not allow price fixing.” Judge Maloney

in ruling against the petitioner indicated that the question

asked was “highly improper” and was caused by “over-

zealousness” occasioned by Mr. Gossens’ desire to counter-

act the testimony of Mr. Standridge. However, the record

refutes Assistant Attorney General Gossens’ assertions and

the finding by Judge Maloney. All Mr. Standridge stated

on direct examination was that he was told that it was

the philosophy of Waste Management never to cut back

on prices to meet competition. On Assistant Attorney

11 See Statement of the Case, pp. 11-18 for factual background.

12 This reason was never advanced to Judge Jackman in 1973.

General Gossens’ cross examination, Mr. Standridge de-

nied that he had done any checking into the background

of Waste Management. Thus, even within the framework

of the stated reasons for asking the completely prohibited

questions, there was no justification.

The type of conduct employed by Assistant Attorney

General Gossens was condemned by Chief Justice Burger

in United States v. Dinitz, 424 U.S. 600 (1976), where

he stated in a concurring opinion:

“To make statements which will not or cannot be

supported by proof is, if it relates to significant ele-

ments of the case, professional misconduct. More-

over, it is fundamentally unfair to an opposing party

to allow an attorney, with the standing and prestige

inherent in being an officer of the court, to present

to the jury statements not susceptible of proof but in-

tended to influence the jury in reaching a verdict.”

Id. at 612. ' Z

The Chief Justice was referring to a defense attorney in

Dinitz. That opinion is even more applicable to an As-

sistant Attorney General who uses the prestige and power

of his office to make a false statement to a jury calculated

to smear one of the defendants and to assist the State in

obtaining a favorable result.

The trial court held in part that the federal jeopardy

issues were inapplicable here even though there was pros-

ecutorial misconduct because the mistrial was not de-

clared due to the misconduct. The incident occurred near

the end of the trial. Judge Jackman in denying a motion

for a mistrial stated that he would “take a verdict and

see what happens.” It is possible that Judge Jackman be-

lieved that there could be an acquittal which would moot

all issues. Instead, there was a hung jury and a mistrial

declared due to that fact. The Wisconsin Supreme Court

did not discuss this issue although it was presented on

appeal.

There are several reasons why the issue might not have

been discussed by the Wisconsin Supreme Court. First of

all, the Wisconsin Supreme Court might have agreed with

the trial court and the State that the issue disappeared

because the mistrial in the first case resulted from a hung

jury rather than a declaration of a mistrial by the trial

judge due to the misconduct. If so, this presents a signifi-

cant question for the United States Supreme Court. The

petitioner believes that the double jeopardy clause pro-

tects defendants from prosecutorial overreaching under

any circumstances. The objectives of the prosecutor were

obtained with any result other than acquittal.

A second reason why the Wisconsin Supreme Court

may not have discussed this issue is because Wisconsin

courts do not employ the correct standard to determine

this question. In State v. Calhoun, 67 Wis. 2d 204, 226

N.W. 2d 504 (1975), the Wisconsin Supreme Court stated

the federal position to be that a second trial cannot be

held if prosecutorial misconduct was based upon “‘a fear

that the jury was likely to acquit the accused.” Jd. at 223,

quoting from United States v. Tateo, 377 U.S. 463, 468

(1964), referring to Gori v. United States, 367 U.S. 364

(1961).

Assistant Attorney General Gossens had testified that

even though certain aspects of the prosecution had not

gone well in the first trial he was still not fearful of losing

a conviction."® Judge Maloney in his opinion stated that

13 [n this context, Assistant Attorney General Gossens testified that

his star witness, James Pellitteri, had not testified well in the first trial.

Furthermore, the cross examination of another principal witness, Gerald

Beecher, was severely undercut according to Mr. Gossens by the cross

examination in the first trial.

fear of acquittal was not the reason for the “highly im-

proper question” but rather the question was motivated

to respond to testimony which Assistant Attorney General

Gossen thought had been given by Mr. Standridge. The

Wisconsin Supreme Court did not discuss this issue due

to its adherence to its Calhoun standard which is in con-

flict with decisions of this Court.

It is clear from the recent decision of the Court in

Sanabria quoting from Dinitz that the test is not whether

the prosecution feared an acquittal but whether the ac-

tions of the prosecutor constituted “prosecutorial over-

reaching.” Consequently, the writ sought should be

granted because the case presents an issue of substantial

importance concerning the appropriate standard of mis-

conduct for implementation of the jeopardy bar to retrial.

Finally, although this Court has held that prosecutorial

overreaching would bar a subsequent trial of a defendant,

the Court has not discussed what constitutes that kind of

overreaching which would prevent a second trial. The

trial court in this case, Judge Maloney, clearly held that

the question which falsely smeared the petitioner in the

first trial was “highly improper” and the result of “over-

zealousness” on the part of Assistant Attorney General

Gossens. Assistant Attorney General Gossens also relied

upon a misstatement of the record to justify his smear tac-

tics. Mr. Standridge never made the petitioner’s reputa-

tion an issue. The intentional smear which falsely stated

to the jury that the petitioner had been previously in-

volved in or convicted of price fixing is inexcusable. The

highly prejudicial nature of such a smear cannot be

denied. The Court held in Boyd v. United States, 142

U.S. 450 (1892) that:

“Proof of [other crimes] only tended to prejudice

the defendants with the jurors, to draw their minds

away from the real issue.” Jd. at 458.

Chief Justice Warren, concurring in Spencer v. Texas, 385

U.S. 554 (1967) discussed Boyd in the context of viola-

tions of the due process clause of the Fourteenth Amend-

ment.

“While this court has never held that the use of prior

convictions to show nothing more than disposition

to commit crime would violate the due process clause

of the Fourteenth Amendment, our decisions exer-

cising supervisory power over criminal trials in fed-

eral courts, as well as decisions by courts of appeals

and of state courts, suggest that evidence of prior

crimes introduced for no purpose other than to show

criminal disposition would violate the due process

clause. Evidence of prior convictions has been forbid-

den because it jeopardizes the presumption of inno-

cence of the crime currently charged. A jury might

punish an accused for being guilty of a previous of-

fense or feel that incarceration is justified because the

accused is a ‘bad man,’ without regard to his guilt

of the crime currently charged. Of course it flouts

human nature to suppose that a jury would not con-

sider a defendant’s previous trouble with the law in

deciding whether he has committed the crime cur-

rently charged against him. As Mr. Justice Jackson

put it in a famous phrase, ‘(t]he naive assumption

that prejudicial effects can be overcome by instruc-

tions to the jury... all practicing lawyers know to

be unmitigated fiction.’ Krulewitch v. United States,

336 U.S. 440, 453 (1949). (Concurring Opinion)”

Id. at 572-575.

Finally, the Court held in Burgett v. Texas, 389 U.S.

109 (1969) that:

“The admission of a prior criminal conviction which

is constitutionally infirm under the standards of

Gideon v. Wainwright is inherently prejudicial and

we are unable to say that the instructions to disregard

it made the constitutional error harmless beyond a

reasonable doubt.” Jd. at 115.

This has also been the clear law of Wisconsin. The

Wisconsin Supreme Court said in Barton v. Bruley, 119

Wis. 326, 96 N.W. 815 (1903):

“[N Jo irrelevant fact is more likely to have weight

with the ordinary jury than that the accused has

done similar acts on other occasions.” Jd. at 330.

Thus, the first trial’* of the petitioner was obviously so

infected by the prosecutor that any conviction would as

a matter of law have been overturned by either a trial

or an appellate court. Every prosecutor in Wisconsin

knows that: that question was improper and that the

chances of reversal of any conviction obtained was high.

The fact that the basis of the question was a pure fabrica-

tion on the part of Assistant Attorney General Gossens in

that the petitioner has never previously been convicted

of any violations of the anti-trust laws clearly shows that

the actions constituted deliberate overreaching.

This case then presents a clear case of prosecutorial

overreaching. The Court can decide whether former

jeopardy considerations are applicable where a first trial

resulted in a mistrial due to a hung jury and where the

first trial was contaminated with prosecutorial overreach-

ing involving falsely telling a jury that the petitioner

had engaged previously in the very conduct charged in

this case. The Wisconsin trial court clearly applied an

incorrect federal standard which was not corrected by

the Wisconsin Supreme Court. The recent former jeop-

ardy decisions of this Court make these issues extremely

14 The weakness of the State’s case is demonstrated by the fact that

despite this highly prejudicial inquiry, the jury in the first trial was un-

able to reach a verdict.

important because they will be increasingly faced by

lower courts throughout the country.”

II. RECENTLY THIS COURT HELD THAT

A HEARING MUST BE HELD IN A

FOURTH AMENDMENT CONTEXT WHEN

THERE IS A SHOWING OF FALSITY IN AN

AFFIDAVIT FOR A WARRANT; THIS CASE

PRESENTS THE KNOWING USE OF FALSE

TESTIMONY IN A FOURTH AMENDMENT

SUPPRESSION HEARING.

In Franks v. Delaware, — U.S. — (1978), this Court

held that the constitutional right to be secure against

unreasonable searches and seizures prohibited law en-

forcement officers either to knowingly use false evidence

to obtain a search warrant or to engage in a reckless dis-

regard of truth in obtaining a search warrant. Under

either of those circumstances, the Court held that a search

warrant could be challenged.

Assistant Attorney General Gossens in the context of

a Fourth Amendment inquiry into whether illegal elec-

tronic surveillance was utilized either knowingly em-

ployed false testimony or engaged in a clear reckless

disregard of the truth to obtain a favorable ruling.”® In

15’The Statement of the Case also shows that the first trial was in-

fected with two other clear instances of prosecutorial overreaching. The

first involved the failure to disclose exculpatory evidence which was

contained in the testimony which had been presented to the grand jury

by the State’s principal witness, James Pellitteri, to the effect that he

had not taken customers of the petitioner because of his desire not to

hurt his uncle’s ability to collect money owed to his uncle by the peti-

tioner. The second event was the failure of the prosecution to disclose

to the defense that Mr. Beecher, another principal witness against the

petitioner, had testified under oath differently before the grand jury

with respect to a critical date concerning his alleged entrance into a

conspiracy.

16 See Statement of the Case, pp. 18-28 for factual background.

1973 when this case was assigned to Judge Jackman, and

shortly after the indictment was presented, an investigator

for the petitioner interviewed Mr. Richard Schultz, a

competitor. Mr. Schultz stated that he had been called

into the office of the Attorney General shortly before the

indictment was presented. Mr. Schultz also stated to

the investigator that he was also told there that the At-

torney General’s office knew about the luncheon meeting

with Mr. Standridge at Namio’s.

Later, on July 3, 1973, in the context of a hearing to

determine whether the State or any of its agents or per-

sons acting under their direction and control had em-

ployed illega] electronic surveillance “bugging” devices

on the premises of the petitioner, one of the questions

became: How did the State learn about that meeting

between Standridge and Schultz? The State’s false ex-

planation in 1973 was that Mr. Schultz had told Assistant

Attorney General Gossens about this meeting. Mr. Schultz

also denied the truth of the statements attributed to him

by the petitioner’s investigator. All this testimony was

in the presence of Assistant Attorney General Gossens on

July 3, 1973 and most of it was promulgated by him.

That sworn testimony ended this inquiry and Judge Jack-

man ultimately held that the petitioner had failed to

prove any illegal electronic surveillance by the State or

any of its agents.

Judge Jackman’s ruling was relied upon in part by

Judge Maloney, the second trial judge in this case who

presided after the hung jury. Judge Jackman’s decision

was also specifically relied upon by the Wisconsin Su-

preme Court. The issue concerning the deliberate and

knowing use of false testimony at the July 3, 1973 hear-

ings before Judge Jackman has never been discussed by

any court. The matter was not presented to Judge Jack-

man because the falsity was not discovered until the

middle of the first trial. Judge Maloney only discussed

the obvious misleading and inaccurate testimony which

he witnessed in 1975." The Wisconsin Supreme Court

merely stated that there was confusion in the testimony

but never specifically discussed this question of the know-

ing use of false testimony.

If a hearing is required to determine the validity of

statements made in an affidavit in support of a search

warrant according to Franks, then a hearing is surely

required to determine whether false testimony had been

elicted deliberately to thwart a Fourth Amendment in-

quiry involving wiretapping. A hearing cannot be limited

to the mere taking of testimony. A hearing must require

as a matter of due process fundamental fairness that

courts squarely face the questions and articulate decisions.

The Court in Stone v. Powell, 428 U.S. 465, 494 fn. 36

(1976) cites Townsend v. Sain, 372 U.S. 293 (1963)

with respect to the standards to be applied to determine

whether there has been “full and fair litigation of a

Fourth Amendment claim. . . .” Townsend has as its

basic underpinning that trial judges must articulate find-

ings of fact which findings are supported by the record

on Fourth Amendment claims. Cf. Kent v. United States,

383 U.S. 541, 554 (1966); Morrissey v. Brewer, 408

17 Mr. Schultz first testified that he was told by the State that the

source of information was James Pellitteri. Mr. Schultz then testified

that the State told him that the source was Phil Pellitteri. Assistant

Attorney General Gossens ultimately admitted prior knowledge and

testified that his source was Phil Pellitteri, but he produced a memoran-

dum which refuted that source because the memorandum disclosed that

the conversation with Phil Pellitteri took place the day after Assistant

Attorney Gereral Gossens obtained a statement from Mr. Schultz. The

petitioner was not allowed to look at this document.

U.S. 471, 489 (1972) ; Specht v. Patterson, 386 U.S. 605,

610 (1967).

There can be no doubt that deliberate false testimony

was elicited before Judge Jackman on July 3, 1973 be-

cause the State changed its story on a critically important

fact.'* The impact in this setting of this deliberate use

of false testimony in 1973 is an important issue. However,

Judge Maloney and the Wisconsin Supreme Court re-

fused to clearly and squarely d‘scuss these issues.’®

There can be no doubt that the knowing use of false

testimony violates the Fourteenth Amendment rights to

due process and equal protection of the laws. Miller v.

Pate, 386 U.S. 1 (1967).

“More than 30 years ago this Court held that the

Fourteenth Amendment cannot tolerate a state crim-

inal conviction obtained by the knowing use of false

evidence. Mooney v. Holohan, 294 U.S. 103. There

has been no deviation from that established prin-

ciple. Napue v. Illinois, 360 U.S. 264; Pyle v.

Kansas, 317 U.S. 213; cf. Alcorta v. Texas, 355 U.S.

28. There can be no retreat from that principle.”

Id. at 7. | parallel cites omitted }.

In Miller, the prosecution represented in a rape-murder

case that reddish stains were blood when the stains were

in fact paint. In this case, in 1973, the prosecution rep-

18 Franks v. Delaware, — U.S. — (1978) employs a lesser standard

to challenge an affidavit in support of a warrant — reckless disregard of

truth. If this new standard is applicable to suppression hearings involving

electronic surveillance, it too was violated.

19 Judge Maloney called the entire issue a “tempest in a teapot” and

then discussed the confusing testimony in 1975 without ever focusing on

the false testimony elicited in 1973 before Judge Jackman. The Wis-

consin Supreme Court said that they were not “a performing bear’, 81

Wis. 2d at 564, Ap. 2, and employed that phrase as precedence

to refuse to discuss this event of clear prosecutorial misconduct other

than to generally note differences in testimony.

resented in a hearing on illegal electronic surveillance

that Mr. Schultz was their source of knowledge about

a meeting between Mr. Schultz and Mr. Standridge

when in fact he was not their source. Since Assistant

Attorney General Gossens personally participated in the

meeting with Mr. Schultz, he was a person who knowingly

elicited this false testimony. At a minimum, the recent

standard as enunciated by the Court in Franks is ap-

plicable. The testimony elicited clearly evinced a reckless

disregard of truth.

The Court has never determined the effect of false

testimony elicited in the context of either a general in-

quiry involving the Fourth Amendment or specifically

involving a hearing to determine whether there had been

illegal electronic surveillance. On that basis, the issue

is of major nationwide significance. The question pre-

sented is similar to Franks but concerns the impact of

false testimony in a hearing concerning alleged direct

violations of the Fourth Amendment to the United States

Constitution rather than false assertions contained in an

affidavit to support a warrant.

The petitioner contends that an appropriate constitu-

tional result is to invoke the general rule of evidence

that a presumption is created when one has evidence in

his possession and does not produce it, that the suppressed

evidence would be unfavorable to the defaulting party.

See Wigmore on Evidence, 3rd Edition, Vol. 2, §285;

Graves v. United States, 150 U.S. 118, 121 (1893);

United States v. Young, 463 F.2d 934 (D.C. Cir. 1972) ;

cf. Caminetti v. United States, 242 U.S. 470, 495 (1917).

In this case, the only unfavorable presumption in the con-

text of the purpose of the hearing is that knowledge

about the meeting between Mr. Schultz and Mr. Stand-

ridge was obtained by employment of illegal electronic

surveillance devices.

As with other presumptions, assuming such a presump-

tion is rebuttable, the burden of persuasion then shifts

to the State. In this case, the confusing and conflicting

stories presented in 1975 as a matter of law cannot rebut

the presumption. Judge Maloney found the 1975 testi-

mony to be “hopelessly confused.” In other words, the

State was completely unable to prove a legal source for

this information. This finding is important to demon-

strate that a presumption of impropriety created by the

1973 false testimony has not been rebutted.

The issue presented is of major national significance.

The Court has now resolved the impact of the knowing

use of false testimony or a reckless disregard of truth

when affidavits for warrants are involved. This case

involves knowing use of false testimony or a reckless dis-

regard of truth when a hearing is conducted concerning

the existence of illegal electronic surveillance. This Court

has not discussed this question to date.

III. THE DECISION OF THE WISCONSIN SU-

PREME COURT IS NOT IN ACCORD WITH

APPLICABLE DECISIONS OF THIS COURT

AND, IN PARTICULAR, THE RECENT DE-

CISION OF UNITED STATES v. UNITED STATES

GYPSUM CO.,— U.S. — (1978).

In United States v. United States Gypsum Co., —

U.S. — (1978), the Court held that it was improper to

instruct a jury in a criminal case that there was a pre-

sumption of intent. The petitioner objected in the trial

court to instructing the jury with the Wisconsin standard

instruction which presumes a defendant intends the natu-

ral and probable consequences of his deliberate acts. The

trial court gave the standard Wisconsin instruction and

the Wisconsin Supreme Court stated that that standard

instruction was appropriate in Wisconsin.” Recently, this

instruction was declared unconstitutional. Hughes v.

Matthews, — F.2d — (7th Cir. 1978).

The recent decision of the Court in United States

Gypsum Co. repudiates that position. Furthermore the

decision of the United States Supreme Court in Mul-

laney v. Wilbur, 421 U.S. 684 (1975) states that it is

improper to instruct a jury to presume any elements of

a criminal offense and thereby to shift the burden of

proof to the defendant to overcome the presumption.

United States Gypsum Co. also demonstrates two other

errors by the Wisconsin Supreme Court.*’ The indict-

ment in this case charged at Paragraph 20 that the al-

leged conspiracy “attempted to affect or did affect...

bids or quotes” with respect to a list of 49 enumerated

customers in the Madison, Wisconsin area. A substantial

portion of the trial was consumed by the petitioner re-

futing any claimed impact upon commerce. The peti-

tioner was attempting to prove that while there might

have been some exchange of price information on some

accounts, the fact is that this exchange in no way affected

commerce and was therefore not intended to affect com-

merce.

This was a major part of the defense of the petitioner.

However, the trial court instructed the jury, over ob-

jection, that the State did not have to prove any effect

20 See Statement of the Case, pp. 39-40 for factual background.

21 See Statement of the Case, pp. 38-39, 40 for factual background.

upon commerce. The petitioner then offered an instruc-

tion:

“The essence of the offense of conspiracy is that

there must be an agreement between the parties.

{ have previously instructed you that the object of

the conspiracy need not be achieved. The defense

has introduced evidence which demonstrates a course

of conduct of all parties both before, during and

after the alleged conspiracy. If you find that there

was no substantial change in the course of conduct

throughout this period of time, you may infer, but

you need not do so, that there was never an agree-

ment between the parties as alleged in the indict-

ment. Evidence of competition between the alleged

conspirators creates an inference that there never

was a conspiracy. It is for you, the jury, to deter-

mine the strength of the inference and the weight

which you want to give it.” (Emphasis supplied).

The trial court refused to give this requested instruction.

These two actions of the trial court were affirmed by

the Wisconsin Supreme Court. As a matter of law, the

Wisconsin Supreme Court held that Wisconsin law fol-

lowed decisions of this Court involving the Sherman Act.

Thus, according to the Wisconsin Supreme Court, the

refusal to give this instruction was proper and effectively

deleting paragraph 20 from the indictment was also

proper because the State did not have to prove any effect

upon commerce under the Sherman Act.

Both of these actions were condemned by this Court

in United States Gypsum Co. In United States Gypsum

Co., the Court noted at footnote 20 that two differcit

types of intent are required in a conspiracy. They are

“the basic intent to agree, which is necessary to establish

the existence of the conspiracy, and the more traditional

intent to effectuate the c.yject of the conspiracy.” (Em-

phasis supplied). The refusal to give the proposed in-

struction coupled with the instructions on the presump-

tion of intent and that the State need not prove an effect

on commerce effectively took away from the jury the

question of whether the petitioner intended to effectuate

the object of the conspiracy.”

The instructions also violated another holding of

United States Gypsum Co. The Court held that a con-

spirator could withdraw by commencing to compete with

other conspirators. The jury instruction proposed by

the petitioner but rejected by the trial court and the

Wisconsin Supreme Court would have advised the jury

that evidence of competition was competent evidence to

show that there never was a conspiracy in the first place.”

Such an instruction would have served an identical pur-

pose to the one which this Court held required in United

States Gypsum Co. There the issue was whether there

was a withdrawal from a conspiracy. Here the issue

was whether there was entry into a conspiracy in the

first place. Evidence of vigorous competition is equally

significant to both questions.

The trial court and the Wisconsin Supreme Court

held that there was no error in amending the indictment

by instructing the jury that the State need not prove

any effect upon commerce whatsoever even though an

effect upon commerce was alleged by the grand jury.

22 The petitioner was allowed to argue that there was no conspiracy

because there was no effect upon commerce. However, the Court also

held in United States Gypsum Co, that the right to argue is no substitute

for proper instructions.

23 The petitioner proved that the so-called co-conspirators obtained

price information from the petitioner and then went out and armed

with the information undercut or attempted to undercut the petitioner to

take away business.

The reasoning of the Wisconsin Supreme Court was that

all the State need prove was an agreement when a viola-

tion of Wisconsin’s “little” Sherman Act is involved,

United States Gypsum Co. demonstrates that in cases

involving an exchange of price information an effect

upon commerce is probably necessary to establish a vio-

lation of the Sherman Act because such actions might not

constitute a per se violation. The Court stated at foot-

note 16:

“The exchange of price data and other information

among competitors does not invariably have anti-

competitive effects; indeed such practices can in cer-

tain circumstances increase economic efficiency and

render markets more rather than less competitive.

For this reason, we have held that such exchanges of

information do not constitute a per se violation of

the Sherman Act.”

In the body of the opinion related to that footnote the

Court stated :

“With certain exceptions for conduct regarded as

per se illegal because of its unquestionably anticom-

pe* tive effects, see, e.g., United States v. Socony-

Vacuum Oil Co., 310 U.S. 150, the behavior pro-

scribed by the Act is often difficult to distinguish

from the gray zone of socially acceptable and eco-

nomically justifiable business conduct. Indeed, the

type of conduct charged in the indictment in this case

— the exchange of price information among com-

petitors — is illustrative in this regard.”

The petitioner’s defense was that its prices were never

a closed book and that dissemination of this information

did not in fact affect commerce. It was certainly reason-

able for the Madison grand jury in its charge to require

the State to prove an effect upon commerce in this case.

Since it was reasonable for the grand jury to make that a

part of the charge, the petitioner had a right to rely upon

the charge as requiring the State to prove an effect upon

commerce.

The petitioner spent a substantial amount of time dur-

ing the course of the trial to demonstrate that there was

fierce competition in Madison, Wisconsin during the per-

iod of the alleged conspiracy and that there was no im-

pact on commerce due to any exchange of price informa-

tion.** The trial court’s action as approved by the Wis-

consin Supreme Court in reading an effect on commerce

out of the elements of proof violated United States Gyp-

sum Co.”

IV. THE PETITIONER WAS DENIED FULL

AND FAIR HEARINGS WITH RESPECT TO

ITS CLAIMS THAT ILLEGAL ELECTRONIC

SURVEILLANCE HAD BEEN FMPLOYED

BY THE STATE.

The Court held in Stone v. Powell, 428 U.S. 465 (1976)

that there would be no review of Fourth Amendment

claims in federal collateral relief proceedings unless the

particular petitioner had been denied full and fair hear-

ings with respect to claims of violations of the Fourth

Amendment right to be secure against unreasonable

searches and seizures. A separate right to full and fair

24 The petitioner proved that it lost nearly $50,000 of annual business

during the time of the alleged conspiracy.

25 Instructing the jury to disregard paragraph 20 of the indictment

also constituted an improper amendment which denied the petitioner its

right to notice of the charges in violation of DeJonge v. Oregon, 299

U.S. 353 (1937) and Cole v. Arkansas, 333 U.S. 196 (1948). See part

VI, infra.

hearings on Fourth Amendment claims is coextensive

with that right and the general right to due process of

law under the Fourteenth Amendment. Ordinarily such

questions are resolvable by lower federal courts. How-

ever, the petitioner here is a corporation. There is a ques-

tion concerning the availability of federal collateral re-

lief since the custody command might prevent a corpora-

tion from obtaining access to a district court. Thus, this

Court might be the only federal forum to obtain relief

from all the federal rights violated including the denial

of full, fair and impartial hearings in the search inquiry.

This case presents several classic examples of a denial

of a right to proper hearings.”

The principal rights denied were:

1. On numerous occasions, the trial court admon-

ished counsel that impeachment questions would not

be allowed. Objections made by counsel for the State

that questions were impeaching in nature were often

sustained.

2. A hearsay report of Mr. Hecker was admitted

into evidence by the trial court and utilized by the

trial court in determining whether there was any

electronic surveillance. The petitioner was told by

Judge Maloney that the report would be accepted

as a verity unless the petitioner called the maker of

the report as a witness.

3. The petitioner did not receive the full detailed

report from Mr. Hecker until the day the jury trial

commenced. Thus, the petitioner was denied any

right to be prepared for any hearing because Judge

Maloney proposed to conduct the hearing before the

full report was received and denied the petitioner’s

motions for adjournment to allow its counsel to con-

fer with experts regarding the content of all reports.

26 See Statement of the Case, pp. 29-38 for factual background.

4. The petitioner was denied the right to present

evidence favorable to the petitioner. Originally,

Judge Maloney indicated that the results of a lie

detector test performed by John Reid of Chicago,

Illinois would be admissible. The trial court said that

if James Pellitteri failed that test, the case would be

dismissed. James Pellitteri failed the lie detector

test. The court refused to provide a hearing date

when Mr. Reid could be present and instead received

the report and discounted its conclusions based upon

the court’s own “expertise”. The petitioner was de-

nied its right to present evidence demonstrating the

reliability of the polygraph examination of James

Pellitteri.

5. The decision of Judge Jackman concerning

electronic surveillance which was relied upon by the

Wisconsin Supreme Court was in fact not reliable

because in those hearings the petitioner was not al-

lowed any examination whatsoever of the tape record-

ings which were acknowledged to be in existence by

the State and by James Pellitteri.

6. The hearings before Judge Jackman were in-

fected with the knowing use of false testimony as ex-

plained in part III above.

7. Judge Maloney failed to analyze whether any

presumption of illegal electronic surveillance should

be employed as a result of the State’s knowing use

of false testimony in 1973, coupled with the failure

of the State to prove a legal source for its knowledge

about the luncheon meeting at Namio’s between Mr.

Schultz and Mr. Standridge.

The decision of the United States Supreme Court in

Stone assumed that state courts would be sensitive to fed-

eral issues involving the Fourth Amendment. Although

there were lengthy hearings before Judge Jackman and

Judge Maloney, the fact is that, taken as a whole, the

hearings were unfair because they should have been more

solicitous of these important rights.

Judge Maloney held that the petitioner had established

a prima facie case showing radio frequency signals ema-

nating from its telephone at its City Disposal office in

Madison, Wisconsin. However, Judge Maloney became

fixed upon a July 21, 1975 trial date. He would allow no

encroachment on that date. Therefore, hearings which

were complex became truncated.

Judge Jackman, whose opinion was relied upon by the

Wisconsin Supreme Court, did not even order the State

to produce the original tapes acknowledged to be in ex-

istence for examination. The problems surrounding the

knowing use of false testimony in the hearings before

Judge Jackman and the refusal of Judge Maloney to

come to grips with that issue have been discussed at

length in part II.

It is extremely difficult to find the precise location of

a radio transmitter associated with a phone. The elec-

trical configurations and pessibilities are virtually limit-

less. There can be really little doubt that the petitioner

was at one point victimized with a wiretap. Phones sim-

ply do not emit radio frequency signals. Although the

State never directly admitted any awareness of illegal

electronic surveillance, the State in 1973 embarked upon

a course of conduct which resulted in the introduction of

false testimony concerning the source’of its knowledge

of a meeting between Mr. Schultz and Mr. Standridge

and then was wholly unsuccessful in explaining its source

of information when that falsity surfaced.

James Pellitteri who was an agent for the State at the

time when Schultz met with Standridge failed a lie de-

tector test conducted by a world famous examiner. The

court refused to set a date when John Reid of Chicago,

Illinois could be present to testify that the lie detector

test was reliable. Although there was nothing to prevent

illegal electronic surveillance to have been conducted

simultaneously with James Pellitteri making one-party

consent tapes, the tapes acknowledged to be in existence

should have been subjected to careful examination. The

petitioner should have been given the right to carefully

question the examiner after a sufficient period of time for

preparation and certainly after having been provided with

all of the reports prior to the hearing. The effect of the

proposal of Judge Maloney was that the complete de-

tailed report of Mr. Hecker would be provided after the

hearings were closed. Thus any hearings would have been

meaningless.”

Sustaining objections because questions are impeach-

ing in nature is unheard of.

There are some inquiries which, due to their complex-

ity must be protracted and which must consume a sub-

stantial period of time to be fair and complete. This is

one of them. The Court should not allow state courts to

trample upon these federal rights. A certain amount of

monitoring of the activities of state trial and appellate

courts in this area is necessary to preserve the integrity

of the Court’s reliance upon state courts to protect the

federal Fourth Amendment right to be secure against un-

reasonable searches and seizures. The Court has not de-

27 Tape 7 which was provided and set out in part at footnote te

supra, is an unusual event. Mr. Pellitteri said that the unknown woman’s

voice was his mother. His mother denied that this was her voice. The

unknown male voice was identified by Mrs. Pellitteri to be her son’s.

James Pellitteri denied that that was his voice and further testified that

he had absolutely no idea what that event was doing on Tape 7 nor

could he explain what it was all about.

fined what it means by a full and fair hearing. The peti-

tioner believes that this would be an apporpriate case to

discuss that question because there are so many violations.

V. THE WISCONSIN SUPREME COURT EM-

PLOYED AN UNCONSTITUTIONAL STAN-

DARD IN DETERMINING THAT THE

TRIAL COURT HAD NOT ERRED IN ITS

FINDING OF NO ELECTRONIC SURVEIL-

LANCE BY THE STATE; THE DECISION IS

IN CONFLICT WITH FEDERAL COURTS;

THE AFFIDAVITS OF STATE AGENTS

ARE CONSTITUTIONALLY INSUFFI-

CIENT.

The Wisconsin Supreme Court held that “the trial

court’s findings of no electronic surveillance by the State

[not] to be against the great weight or clear preponder-

ance of the evidence.” 81 Wis. 2d 570, Ap. 9. This

result by the Wisconsin Supreme Court was announced

without benefit of analysis. The language of the decision

of the Wisconsin Supreme Court strongly suggests that

the burden of proof remained with the petitioner to show

electronic surveillance, when the law is that the burden

had shifted to the State upon a prima facie showing of

electronic surveillance.”

The facts are that Judge Maloney and presumably

Judge Jackman made findings that the petitioner had

established a prima facie showing of radio frequency sig-

nals emanating from one of its phones. Under applicable

Fourth Amendment law, the State was required to re-

spond, since the burden of proof had shifted. It was the

28 See Statement of the Case, pp. 18-21 for factual background.

SS ee ae ee ee

obligation of the State to demonstrate the absence of il-

legal surveillance.

If the Constitution does not require a shifting of the

burden of proof to the State after a showing of a prima

facie case, then it could be virtually impossible for defen-

dants to prove the existence of illegal electronic surveil-

lance when the government or state officials denied the

existence of such surveillance Discovering the precise

location of electronic surveillance devices is enormously

complex and costly. Indeed, the detection of the device

itself in many circumstances is all but impossible. Mr.

Justice Douglas’ dissenting opinion in United States v.

White, 401 U.S.745 (1971) quotes from Senator Edward

Long footnotes 5 and 6, to the effect that the number of

devices is substantial and the cost of discovery is virtually

prohibitive.

The State filed affidavits.” (R. 119-125, 127-129, 211-

212; Ap. 45-50, 51-53, 53-55). The affidavits and for that

matter the testimony of State Justice Department wit-

nesses called by the petitioner, do not overcome the prima

facie case established by the petitioner and are at odds

with decisions of courts of appeal.

29 The State only called one witness who was a telephone company

employee. Mr. Lein’s testimony was that he could make no statement

regarding the existence or non-existence of illegal electronic surveillance

at the premises of City Disposal. All other witnesses were called by the

petitioner. Some of these witnesses were agents or employees of the

Justice Department of Wisconsin. These witnesses were called in an

effort to establish a prima facie case. One witness, Assistant Attorney

General Michael Zaleski, on examination commenced asserting privileges

before Judge Jackman and refused to answer questions. Judge Jackman

honored the privileges asserted. In any event, the State only affirmatively

offered affidavits to refute the prima facie case.

The principal decision on this subject is United States

v. Alter, 482 F.2d 1016 (9th Cir. 1973), where the court

stated :

‘‘Alter’s affidavits were sufficiently concrete and spe-

cific to make a prima facie showing that on the oc-

casions described someone was interfering with his

telephone calls and that the F.B.I. was invoived.

The burden was then on the Government squarely

to affirm or to deny those charges. (Cf. United States

v. Fannon (7th Cir. 1970) 435 F. 2d 364.) The Dier-

ker affidavit did neither.

“Mr. Dierker speaks in conclusory terms. He supplies

no information whatever about the identity of the

person or persons with whom he communicated, the

substance of his inquiries, or the substance of the re-

plies. He states no facts from which the court could

conclude that the six agencies he lists are the only

governmental agencies that could have been involved

in electronic surveillance. Nor does the affidavit re-

veal the dates of claimed surveillance to which the

inquiries were addressed. If any of the conclusions in

the affidavit were later proved wrong, it would be

virtually impossible to establish that the affidavit was

perjured. (Cf. Bronston v. United States (1973) 409

U.S. 352, 93 S. Ct. 595, 34 L. Ed. 2d 568.)” (Empha-

sis supplied. )

The affidavits here presented are only in conclusory

terms; no information about the identity of persons talked

to was stated, the substance of inquiries and replies were

not presented. Facts are not presented for illumination of

the Court and dates are missing.

Implicit in the decision of the Wisconsin Supreme

Court is a position either that the burden of proof had

not shifted to the State or that the affidavits presented are

constitutionally acceptable. Either position is in violation

of the decisions of a substantial number of courts of ap-

RT ee EL i ae

peal which have faced similar questions. In this case, the

burden of proof clearly shifted by the specific holding of

Judge Maloney and the implied holding of Judge Jack-

man that a prima facie case of illegal electronic surveil-

lance had been proven by the petitioner. The affidavits

presented by the State and relied upon by both trial judges

and by the Wisconsin Supreme Court are clearly unac-

ceptable responses according to decisions of courts of ap-

peal. Thus there is a conflict between the Wisconsin Su-

preme Court and federal courts on this important ques-

tion.

VI. FEDERAL DUE PROCESS RIGHTS WERE

VIOLATED WHEN SUBSTANTIAL AMEND-

MENTS TO THE GRAND JURY INDICT-

MENT WERE ALLOWED.

The petitioner was charged by the grand jury in the

charging paragraph of the indictment with violating the

second sentence of §133.01(1), Wis. Stats. That sentence

is inapplicable to service industries such as the petition-

er’s. By a series of formal deletions to the charging para-

graph of the indictment prior to trial, the charging para-

graph was changed to come close to the language of the

first sentence of §133.01(1), Wis. Stats., which is the

Wisconsin “little” Sherman Act.*

The petitioner objected to all amendments by deletion

and formally moved the trial court for a preliminary hear-

ing asserting that the indictment had become an infor-

mation under Wisconsin law and an information cannot

be filed without a preliminary hearing.

80 See Statement of the Case, pp. 38-39 for factual background.

There is little question that these wholesale deletions

to a grand jury indictment would violate federal law

were this a federal prosecution. In Ex Parte Bain, 121

U.S. 1 (1887), the Court held that a judge does not have

power to strike language from the charging part of an in-

dictment. The present status of the law was summed up

in Stirone v. United States, 361 U.S. 212, 215-217 (1960) :

“Ever since Ex Parte Bain, 121 U.S. 1, was decided

in 1887 it has been the rule that after an indictment

has been returned its charges may not be broadened

through amendment except by the grand jury itself.

In that case, the court ordered that some specific and

relevant allegations the grand jury had charged be

stricken from the indictment so that Bain might be

convicted without proof of those particular allega-

tions. In holding that this could not be done, Mr.

Justice Miller, speaking for the Court said: ‘If it lies

within the province of a court to change the charg-

ing part of an indictment to suit its own notions of

what it ought to have been, or what the grand jury

would probably have made it if their attention had

been called to suggested changes, the great impor-

tance which the common law attaches to an indict-

ment by a grand jury, as a prerequisite to a prison-

er’s trial for a crime, and without which the Consti-

tution says ‘no person shall be held to answer,’ may

be frittered away until its value is almost destroyed ’

121 U.S. 1, 10. “The Court went on to hold in Bain:

. that after the indictment was changed it was no

longer the indictment of the grand jury who pre-

sented it. Any other doctrine would place the rights

of the citizen, which were intended to be protected

by the constitutional provision, at the mercy or con-

trol of the court or prosecuting attorney... .’ !21

U.S. 1, 13 “The Bain case, which has never been

disapproved, stands for the rule that a court cannot

permit a defendant to be tried on charges that are not

made in the indictment against him. See also United

States v. Norris, 281 U.S. 619, 622 (1930). Cf. Clyatt

v. United States, 197 U.S. 207, 219, 220 (1905). Yet

the court did permit that in this case. The indict-

ment here cannot fairly be read as charging inter-

ference with movements of steel from Pennsylvania

to other states nor does the Court of Appeals appear

to have so read it The grand jury which found this

indictment was satisfied to charge that Stirone’s con-

duct interfered with interstate importation of sand.

But neither this nor any other court can know that

the grand jury would have been willing to charge

that Stirone’s conduct would interfere with interstate

exportation of steel froma mill later to be built with

Rider’s concrete. And it cannot be said with certain-

ty that with a new basis for conviction added, Stirone

was convicted solely on the charge made in the indict-

ment the grand jury returned. Although the trial

court did not permit a formal amendment of the in-

dictment, the effect of what it did was the same. And

the addition charging interference with steel exports

here is neither trivial, useless, nor innocuous.” {[Em-

phasis supplied ].

See also Russell v. United States, 369 U.S. 749 (1962).

However, this Court held in Hurtado v. California,

110 U.S. 516 (1884) that the Fifth Amendment guar-

antee of a right to be indicted by a grand jury was not

applicable to the states through the Fourteenth Amend-

ment. Cf. Palko v. Connecticut, 302 U.S. 319, 323 (1937).

Thus, states could substitute a preliminary hearing

process followed by the filing of an information prepared

by the prosecuting attorney for a grand jury proceeding.

The specific holding of the Court in Hurtado was:

“Tried by these principles, we are unable to say

that the substitution for a presentment or indict-

ment by a grand jury of the proceeding by informa-

tion, after examination and commitment by a magts-

trate, certifying to the probable guilt of the defen-

dant, with the right on his part to the aid of counsel,

and to the cross examination of the witnesses pro-

duced for the prosecution, is not due process of law.

It is, as we have seen, an ancient proceeding at com-

mon law....” 110 U.S. at 538. (Emphasis supplied).

The Court was not confronted with the situation where

the State provided neither a grand jury nor a prelim-

inary hearing. The effect of the numerous amendments

to the indictment in this case presents just that issue.

The petitioner contends that a state as a matter of due

process of law cannot deprive a criminal defendant of

both a grand jury and a preliminary hearing. When the

indictment was amended in this wholesale fashion, as

a matter of federal constitutional law, it was no longer

the charge of the grand jury but became the charge of

the Attorney General. In that case, a preliminary hearing

should have been required as a matter of due process

of law.

The Wisconsin Supreme Court held that the petitioner

was not misled by these changes because they were made

prior to trial and further held that the amendments to

the indictment were matters of form rather than sub-

stance. The latter part of its decision is totally at odds

with Ex Parte Bain, supra, and Stirone v. United States,

supra, and the former part violates a need for a prelim-

inary finding of probable cause either by a grand jury

Or in a preliminary hearing.

The Wisconsin Supreme Court did not discuss another

amendment which was made by Judge Maloney. As

pointed out previously in part III, Judge Maloney

amended the indictment by deleting those paragraphs

of the indictment which alleged an actual effect upon

commerce and in particular paragraph 20. As recognized

ee ee ee ae ae oe ee ee ee ee ee

by the Court in Stirone, an indictment can be amended

just as effectively by the process of jury instruction.

As also discussed in part III of this petition, the peti-

tioner’s principal defense was an economic one to show

that there was no impact upon commerce. Thus, the peti-

tioner hoped to prevail by completely discrediting that

part of the grand jury charge which it was obligated

to defend against, namely, that its alleged actions had

an alleged effect upon commerce. The heart of the de-

fense was cut out when the trial court charged the jury

that the State was not obligated to prove any impact

whatsoever upon commerce.

Thus, the petitioner was not sufficiently apprised of

the charges which it had to defend against. The peti-

tioner assumed that the charge contained in the grand

jury indictment would be the charge which went to the

jury. During the instruction conferences, after the evi-

dence was closed, the trial court changed the charge.

This procedure violated the petitioner’s right to know

the nature of the charges against it and specifically

violates DeJonge v. Oregon, 299 U.S. 353 (1937) and

Cole v. Arkansas, 333 U.S. 196 (1948). As the Court

said in Cole:

“No principle of procedural due process is more

clearly established than that notice of the specific

charge, and the chance to be heard in a trial of the

issues raised by that charge, if desired, are among

the constitutional rights of every accused in a crim-

inal proceeding in all courts, state or federal. (cit-

ing acase) If, as the State Supreme Court held, peti-

tioners were charged with a violation of §1, it is

doubtful both that the information fairly informed

them of that charge and that they sought to defend

themselves against such a charge; it is certain that

they were not tried for or found guilty of it. It is

as much a violation of due process to send an accused

to prison following conviction of a charge on which

he was never tried as it would be to convict him

upon a charge that was never made.” Jd. at 201.

As recently recognized by the Court in U.S. Gypsum

Co., supra,

“The behavior proscribed by the [Sherman] Act

is often difficult to distinguish from the gray zone

of socially acceptable and economically justifiable

business conduct. Indeed, the type of conduct charged

in the indictment in this case — the exchange of price

information among competitors — is illustrative in

this regard.”

Some alleged conduct which is in the gray zone requires

proof of an effect upon commerce while other alleged

violations do not require such proof. The grand jury in

this case after hearing evidence concluded that proof of

an effect upon commerce was required in this case. That

is what was contained in its indictment. At the conclusion

of the trial, the trial court changed that charge by elimi-

nating the requirement of proving an effect upon com-

merce. Such a change deprived the petitioner’s due proc-

ess right to notice of the specific charge. This action vio-

lated decisions of this Court.

VII. THE PETITIONER’S RIGHTS TO DUE

PROCESS OF LAW WERE VIOLATED

WHEN A JURY INSTRUCTION WAS

AMENDED IN THE MIDDLE OF CLOSING

ARGUMENT TO THE JURY.

Presumably the command of Rule 30, Federal Rules

of Criminal Procedure, that:

“The court shall inform counsel of its proposed

action upon the requests [for instructions] prior to

their arguments to the jury, but the court shall

instruct the jury after the arguments are completed,”

contains a procedure of constitutional, due process di-

mension. Wisconsin procedure requires an instruction con-

ference prior to argument and requires the court to “in-

form counsel . . . of the instructions it proposes to sub-

mit.” Section 805.13(3) ; 972.01, Wis. Stats.

In this case, all counsel stipulated pursuant to §805.13

(4), Wis. Stats , that the jury be instructed prior to clos-

ing argument. Thus, Judge Maloney had instructed the

jury with respect to the standard Wisconsin instruction

on advising juries about corroborating evidence and the

reliability of the testimony of accomplices.”

James Pellitteri was obviously an accomplice by his

own admission. The Wisconsin standard instruction does

not contain any limitation with respect to time when an

accomplice is an accomplice for cautioning a jury about

reliability and corroborating evidence. Despite this, in the

middle of the closing argument counsel for the State in-

terrupted counsel for the petitioner to point out that Mr.

Pellitteri was not an accomplice after January 15, 1973

and Judge Maloney stated that the jury was aware of that

fact. In its context, Judge Maloney effectively amended

the standard instruction in the middie of closing argu-

ment.

The Wisconsin Supreme Court in its opinion on this

issue appeared to agree that the accomplice instruction

was changed but held rather inexplicably that this issue

was waived because the petitioner’s counsel had never

asked the trial court for an informer instruction.” Just

31See Statement of the Case, pp. 41-45 for factual background.

82 On January 15, 1973, James Pellitteri ceased being a member of any

alleged conspiracy by becoming an informer for the State.

how the issue concerning the changing of an instruction

during the course of argument is waived under these cir-

cumstances is difficult to comprehend. This is especially

true since practically all authorities agree that ar in-

former instruction and an accomplice instruction are co-

extensive so that when one is given in a case the other

need not be given. See, generally, Devitt and Blackmar,

Federal Jury Practice and Instructions, §12.02 and Uni-

ted States v. Gonzales, 491 F.2d 1202 (Sth Cir. 1973),

rehearing denied, 494 F.2d 1296 (1974).

The effect of the changing of the instruction in the

middle of the argument was to convey improperly to the

jury that James Pellitteri’s testimony was more worthy

of belief without requiring corroboration when he moved

from the status of accomplice to assume the status of in-

former. The interruption was unwarranted and the com-

ment by the court which effectively changed the instruc-

tion violated the petitioner’s right to due process of law.

VIII. THE PETITIONER’S RIGHTS TO DUE

PROCESS OF LAW WERE VIOLATED

WHEN THE ASSISTANT ATTORNEY GEN-

ERAL “TESTIFIED” DURING CLOSING AR-

GUMENT TO THE EFFECT THAT EVI-

DENCE EXISTED WHICH WOULD BE

HARMFUL TO THE PETITIONER BUT

WHICH WAS NOT PRODUCED AND THAT

THE PETITIONER WAS RESPONSIBLE

FOR THE DENIAL OF RECEIPT OF SUCH

EVIDENCE.

Shortly following the interruption discussed in part

VII above, the counsel for the petitioner was again in-

terrupted when he was arguing about the lack of corrobo-

ee, pe

rating evidence for James Pellitteri.” During a discussion

the Assistant Attorney General in front of the jury stated

to counsel for the petitioner “You know very well why

we couldn’t get evidence on that.” (Emphasis supplied).

The effect of the comment was a smear of counsel for the

petitioner in the presence of the jury during closing argu-

ment. As it turned out, there was no evidence withheld

and there was no evidence involved which the State could

not have obtained had they wanted to obtain such evi-

dence.“ Thus, the interruption and the comments were

improper and the arguments of counsel for the petitioner

were in fact proper.

The Wisconsin Supreme Court on appeal stated :

“The defendant moved for a mistrial on the grounds

that the prosecutor erred in testifying about matters

not in the record. The trial court struck the prose-

cutor’s remark, but refused to grant. the mistrial.”

(Emphasis supplied). 81 Wis. 2d at 581, Ap.

The Wisconsin Supreme Court misstated the record on

this critical point. The trial court never struck the prose-

cutor’s remark. The trial court refused to give any in-

struction to correct this situation even though the peti-

tioner proposed several alternatives. All the trial court

did in direct response to the motion for a mistrial was to

deny the motion for the mistrial. That denial without

more had the effect of giving some credibility to the im-

proper statement of counsel for the State.

383 See Statement of the Case, pp. +1-46 for factual background.

84 Counsel for the petitioner had no idea what Assistant Attorney

General Strawn was talking about. In a conference outside of the pres-

ence of the jury, Assistant Attorney General Strawn indicated that

counsel for the petitioner’s argument on the lack of fingerprint evidence

or handwriting analysis was improper argument. Judge Maloney ruled

that the argument was proper and further stated that the State could

have obtained such evidence if it wanted to prior to the trial and that

nothing done by the petitioner had prevented them from obtaining such

evidence.

Trial judges have substantial duties to prevent this kind

of conduct on the part of prosecutors and prosecutors

have specific duties not to infect a trial with such inter-

ruptions of argument which are unwarranted and con-

tain unfounded attacks upon counsel. Courts have uni-

versally held that it is improper conduct for a prosecutor

to refer to evidence not in the record. See A.B.A., The

Prosecution Function, Standard 5.9,

United States v. Latimer, 511 F.2d 498 (10th Cir.

1975) is directly on point. Latimer was accused of rob-

bing a bank. During closing argument the defense argued

about the absence of surveillance cameras. The prosecu-

tor stated that the camera had malfunctioned and that

the film showed the presence of an FBI agent arriving

after the incident. The Court of Appeals reversed and

granted a new trial.

In United States v. Peak, 498 F.2d 1337 (6th Cir.

1974) the prosecutor in closing expressed an opinion as

to the defendant’s character. The Court, in reversing

stated :

“Absent the prompt and stern admonition of the trial

judge, we would consider such a prejudicial com-

ment grounds for reversal or mistrial in any close

case.” (Emphasis supplied) Jd. at 1338.

In United States v. Jenkins, 436 F.2d 140 (D.C. Cir.

1970) an attempt was made to convict by argument be-

yond the scope of evidence introduced.

“Such tactics are inconsistent with the civilization

of the law and endanger the integrity of its admini-

stration. They should be condemned by the trial court

sua sponte in the presence of the jury.” (Emphasis

supplied) 7d. at 145.

eo eee

. ee ee ee eS

Repeating the comments of Chief Justice Burger in

United States v. Dinitz, 424 U.S. 600, 612 (1976) with

respect to overreaching by a defense attorney,

“To make statements which will not or cannot be

supported by proof is, as it relates to significant ele-

ments of the case, professional misconduct. More-

over, it is fundamentally unfair to an opposing party

to allow an atiorney, with the standing and prestige

inherent in being an officer of the court, to present

to the jury statements not susceptible of proof but

intended to influence the jury in reaching a verdict.

“4 trial judge is under a duty, in order to protect the

integrity of the trial, to take prompt and affirmative

action to stop such professional misconduct.” (Em-

phasis supplied)

The Court has not considered the scope of professional

misconduct which might arise in closing argument and

their due process implications. Surely the admonition of

the Chief Justice in Dinitz is correct and should be ap-

plied with even greater vigor to prosecutors who engage

in such conduct. The Wisconsin Supreme Court dismissed

this part of the appeal by the erroneous assumption that

Judge Maloney had acted promptly in accordance with

the constitutional requirement to prevent such matters

from infecting a jury. In fact, Judge Maloney did noth-

ing. Thus, the decision of the Wisconsin Supreme Court

in the context of the true factual situation is in conflict

with circuit courts throughout the country which have

addressed this question and presumably in conflict with

applicable decisions of this Court.

IX. PROSECUTORS, AS A MATTER OF DUE

PROCESS OF LAW SHOULD BE REQUIRED

TO TRANSMIT EXCULPATORY EVIDENCE

TO A GRAND JURY FOR THEIR

ERATION. ceca

The tape recordings of telephone conversations which

had been turned over to the State by James Pellitteri dis-

closed a significant exculpating conversation between

James Pellitteri and Mr. Standridge, an employee of the

petitioner. In that conversation, Mr. Standridge stated

that James Pellitteri asked him to state what price Pel-

litteri should quote to a City Disposal customer. Mr

Standridge refused stating that such conduct bordered

on price fixing which is illegal. This exculpating testi-

mony was not presented to the grand jury. The Wisconsin

Supreme Court held that all that was required was that

this exculpating evidence be divulged to the defense and

impliedly held that exculpating evidence did not have to

be presented to the grand jury by a prosecutor.

Several federal courts are now exploring this issue. A

recent discussion appears in United States v. Phillips Pe-

troleum Company, 435 F. Supp. 610 (N.D. Okla. 1977)

where the Court stated:

“It is important to the proper functioning of the

Grand Jury that it be apprised of the prove infor-

mation which will allow it to make an informed and

independent judgment as to whether it is appropriate

to return an indictment in a given case. United States

v. Braniff Airways, Inc., 428 F.Supp. 579 (W.D.

Tex. 1977) ; United States v. DeMarco, 401 F.Supp.

505 (C.D. Cal. 1975), aff’d, 550 F.2d 1224 (9th Cir.

1977) ; Wood v. Georgia, 370 U.S. 375, 390, 82 S.

Ct. 1364, 8 L.Ed.2d 569 (1962) ; Johnson v. Super-

35 See Statement of the Case, pp. 46-47 for factual background.

PNA Res pet + * | Dy?

ior Court, 38 Cal.App.3d 977, 113 Cal.Rptr. 740

(1974), aff'd, 15 Cal.3d 248, 124 Cal.Rptr. 32, 539

P.2d 792 (1975). As the Supreme Court said in Uni-

ted States v. Dionisio, 410 U.S. 1, 16-17, 93 S.Ct.

764, 773, 35 L.Ed.2d 67 (1973), the mission of the

Grand Jury ‘is to clear the innocent, no less than to

bring to trial those who may be guilty.’ (emphasis

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