# Petition — Waste Management of Wisconsin, Inc. v. Wisconsin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1433%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 865 ## Text i 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 .................... 47 47 48 48 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 49 50 50 51 54 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) 55 55 56 58 59 iv 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 59 61 61 62 ‘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 gS 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 ........ 63 i va vi 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 69 72 72 75 eee 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 77 78 79 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 80 80 80 80 83 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 x 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, 4 MN *, a - « DO tet at i Cte k AUS dea pho ts Sap Dain AA Cab 5 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? 6 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 and, in particular, the failure to disclose all of the on jury transcripts as is more fully set forth in Motion No. 28 dated April 15, 1975. * 7 25. The Court erred in not granting the motion of the defendant to dismiss the case due to the misconduct of the prosecutor during the course of the first trial “ is more fully set forth in Motion No. 32 dated Apri 15, 1975. 26. The Court erred in not granting the motion of the defendant to dismiss the indictment on the grounds that jeopardy had previously attached and in the in- terests of justice as is more fully set forth in Motion No. 34 dated April 15, 1975. 27. The Court erred in allowing any amendments whatsoever to the indictment as presented by the grand jury and, in particular, erred in allowing the two amend- ments to the charging paragraph of the indictment. * * * * * a7 31. The Court erred in overruling the objection to time constraints placed upon defendant with respect to testimony concerning analysis of tapes by Stanford Re- search Institute as is more fully set forth in a motion to the Court dated June 23, 1975. 4113 59 32, The Court erred in overruling the objection made by the defendant to the time constraints placed on counsel with respect to polygraph testimony as is more partic- ularly set forth in a motion to the Court dated June 23, 1975, 33. The Court erred in refusing to allow impeach- ment questions in the pre-trial hearings as is more par- ticularly set forth in the objection to the Court dated June 23, 1975, and set forth throughout the proceedings wherein the Court refused to allow the defense to im- peach the credibility of witnesses by continuously assert- ing that these were matters for the trial. 34. The Court erred when it continued to use hearsay evidence with respect to the reports of Stanford Research Institute and John R. Reid and Associates as is partic- ularly set forth in a motion dated June 23, 1975, 35. The Court erred in overruling the objection made by the defense that the trial date firmness was compelling time restraints on pre-trial hearings as is more partic- ularly set forth in a motion to the Court dated June 23, 1975, * * * * 37, The Court erred in denying the motion of the defendant to recall members of the Pellitteri family and other witnesses after expert testimony as is more particulary set forth in a motion to the Court dated June 23, 1975. 38. The Court erred in denying a motion of the de- fendant for a new arraignment due to the double amend- ments made to the indictments as is more particularly set forth in a motion to the Court dated June 23, 1975. 39, The Court erred in denying a motion for a pre- liminary hearing due to the amended indictment as is 4114 60 more particularly set forth in a motion to the Court dated June 23, 1975. 40, The Court erred in overruling the objection of the defense of the appearance of having decided issues before completion of the hearing and, in the alternative, for recusal of judge as is more particularly set forth in a motion to the Court dated June 23, 1975. 41. The Court erred in denying a motion for adjourn- ment of hearing dates and for adjournment of trial date made by the defense on June 23, 1975 and as more par- ticularly set forth therein. 42. The Court erred in denying the motion for ad- journment of hearing dates and trial date in a motion dated June 27, 1975 as is more particularly set forth in that motion. 43, The trial court so insinuated itself into the pre- trial hearings by its own examination of witnesses that the defendant was denied its right to due process and equal protection of the laws and it was denied its right to counsel in that counsel was not allowed to present evi- dence in a manner in which he wanted to present evi- dence to the Court and was constantly interrupted by the Court throughout the pre-trial proceedings in such a way that the proceedings in the pre-trial hearings be- came inquisitional rather than adverse proceedings. Fur- thermore, the Court erred in continuously rephrasing questions and continuously interjecting its own observa- tions and its own views as to relevancy and materiality to such an extent that the role of counsel became one of a mere observer of events rather than as a participant in an adversary setting. In such a manner, the defendant was denied its opportunity to present its evidence in its case in a fashion which defendant’s counsel believed best 4115 61 r is cli presented the case with respect to his client’s interests. Furthermore, the hearings were unduly hampered and cut down in their scope of inquiry. f 44, It was error for the Court not to dismiss the case ue to prosecutorial misconduct before the grand jury as is more particularly set forth in Moti July 11, 1975, otion No. | dated 45. The Court erred in failing to dismiss the case due to prosecutorial misconduct at the prior trial with re- spect to when Beecher first met Pellitteri and the failure of the prosecutors to disclose Jim Pellitteri’s protection of his uncle, Phil Pellitteri, as is more fully set forth in Motion No, 3 dated July 11, 1975, 46, The Court erred in failing to dismiss the case due to the deliberate failure of the State to divulge grand jury transcripts prior to the first trial as is more par- ticularly set forth in Motion No, 4 dated July 11, 1975. * * * * 51. The Court erred in failing to dismiss the case due to prosecutorial misconduct both indivi th individ cumulatively as follows: individually and (a) The cross examination at the first trial regarding previous alleged activities in bid rigging by th corporation; gging by the defendant b) Th i i war ¢ mention of tape recordings before the grand (c) The eliciting of certain testimony before the grand jury as is more fully set forth in Moti July 11, 1975; otion No, | dated (d) The improper claim of privile i i ge during the testi- mony of Mr, Zaleski and Mr. Meyer; eke 4116 62 (e) The failure to advise the defense that James Pel- litteri had testified that he got into an agreement to protect his uncle, Phil Pellitteri; (f) The statement of the prosecution that the first time they heard about any such arrangement with Phil Pellitteri was during the testimony of Bruce Gillman when, in fact, there was testimony before the grand jury; (g) The failure of the prosecution to properly advise the defense at the first trial regarding the statements of Beecher and James Pellitteri with respect to the first meeting; (h) The changed stories which surround the manner in which the Attorney General found out about the meet- ing between Schultz and Standridge at Namio’s which includes within it a pattern of deception and deliberate failure to correct inaccurate testimony and attempts to hide the truth, all of which prosecutorial misconduct is fully set forth in a motion made to the Court with re- spect to prosecutorial misconduct, said motion being dat- ed July 15, 1975. * * . * 54. It was error for the Court not to dismiss the case because the defendant made out a prima facie case of electronic surveillance; this prima facie case was never rebutted by the State; the State never explained how it found out about the meeting between Schultz and Stand- ridge at Namio’s without the use of electronic surveil- lance; the taping and divulging of the tapes to the At- torney General as admitted by James Pellitteri to have been one-party consent tapes was done in violation of state and federal law in that it was accomplished for purposes of injuring the defendant corporation or com- mitting a tortious act against the corporation. * 7. * * 4132 63 148. The Court erred at page 918 of the transcript, et seq., in its failure to give the instruction proffered by the defense which appears on that page and instead giving the instruction which appears at page 12 of the instruc- tions regarding the per se standards of a restraint of trade. The Court further erred with respect to this instruction by failing to give the Devitt and Blackmar instruction contained at §2314 which was tendered to the Court at page 921 of the transcript. 149. The Court further erred at page 922 of the tran- script by not clearing up the sentence with respect to the so-called per se agreements by not showing in greater detail that there had to be an agreement and that this couldeggt be done unilaterally. See page 12, proposed instructions, pages 10-11, Instructions. 150. See page 923 of the transcript. The Court erred when it instructed the jury that the only thing necessary in an antitrust conspiracy case is that there be an agree- ment and that there need not be acts done in furtherance of any such conspiracy. See discussion at page 926 of the transcript and page 16 of proposed instructions, page 14, Instructions. 151. The Court also erred in giving the second para- graph on page 16 of the proposed instructions, page 14, Instructions, in that such instruction is repetitious. See page 926 of the transcript. 152. The Court erred at pages 934-935 of the tran- script when it allowed the insertion of an instruction that a person intends the natural and probable conse- quences of his acts. See page 16, Instructions. 153. The Court erred when it kept in the second paragraph of page 22 of the proposed instructions, page 4134 64 18, Instructions, with respect co the instruction that there is no need to have consciousness of wrongdoing. See pages 936-938 of the transcript. . * * * 157, The Court erred with respect to instructing the jury about that a person intends the natural and probable and usual consequences of his deliberate acts. See page 949 of the transcript. See page 16, Instructions. * + * + 159, The Court erred when it rejected each and every one of the defendant’s requested instructions | through 21 at page 1039 of the transcript. 160. The Court erred at page 1053 of the transcript when it limited the argument of counsel and would not allow counsel to argue that 120 of the indictment had not heen proven, i.e. that the State had not proven an effect upon commerce. 161. The Court erred when it did not give the in- structions which were offered initially at page 354 of the transcript. 162. The Court erred during the closing argument when it limited the impact of the accomplice instruction to evidence obtained while the accomplice was an accom- plice and in effect stated that the corroboration warning was not applicable when the accomplice became an in- former. See page 2 of the excerpt of final argument. 163. The Court erred when it did not grant the de- fendant’s motion for mistrial or for judgment when Mr. Strawn stated in interruption of the argument of de- fendant the following: Ae 4135 4136 65 iT) You know very well why we couldn’t get evidence on that.” * + * ” 164, The Court erred when it refused to instruct the Jury in accordance with the various requests by defense counsel so that the effect of the improper statement of the prosecuting attorney would be limited and that no preju- dicial impact could be derived from this statement of the prosecuting attorney. See excerpts of proceedings, July 30, 1975. 165. The Court erred at page 7 of the excerpts of pro- ceedings, July 30, 1975, wherein the Court limited argu- ment to refrain from discussion of handwriting and fin- gerprints. Ag * * * 167, The Court erred when it gave any instruction to the jury which was objected to by defense counsel and the Court further erred when it did not give any instruc- tion offered by defense counsel. * * + * 169. ‘The Court erred in all of its findings of fact and conclusions of law with respect to electronic surveillance in its decision dated July 17, 1975. 170. The Court erred in its other decision dated July 17, 1975 with respect to all of its findings of fact and con- clusions of law regarding the reasons why Mr. Gossens asked an improper question in the first trial and the effects of the asking of that improper question. A dismissal should have been granted. Dated at Milwaukee, Wisconsin this 19th day of Au- gust, 1975. 66 EXCERPTS FROM PETITIONER'S BRIEF TO WISCONSIN SUPREME COURT * * a7 + A. The State, By Covering Up And Confusing The Manner In Which It First Learned About A Meet- ing Between Standridge And Schultz At Namio’s Created An Unrebutted Presumption Of A Wiretap. ” » * » C. The Defendant Was Denied Fair And Impartial Pre- trial Hearings. XII. PROSECUTORIAL MISCONDUCT REQUIRES REVERSAL, * * ¥ * In the first trial, Mr. Gossens, while cross-examining Standridge, smeared the corporation with an improper and wholly unfounded question: “Did you know that Waste Management or by its previous name had ever been involved in bid rig- ging?” (R. 1367, A. 655). Waste under its present or former name has never been convicted of bid rigging.” Timely objection was made and sustained. A motion for mistrial and acquittal was denied. Both J, Jackman and J. Maloney agreed that this question was absolutely improper. (R. 1414, 2613, A. 659- 60, 1370). 89 Mr. Grossens’ question was charged with the implication of a prior conviction. As he revealed later, he was referring to a civil pro- ceeding in Milwaukee which did not result in judgment. Thus, not only was the question improper, it was not even based on fact. (R. 1410- 5, A. 655-61). 67 In State v. Calhoun, 67 Wis. 2d 204, 226 N.W. 2d 504 (1975), the Court recognized that the State cannot pro- ceed to a second trial 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). This rule evolved from con- siderations of both collateral estoppel and double jeop- ardy. In the first trial the State capitalized on its clear prose- cutorial misconduct. The case was always close.*° The defendant was entitled to a verdict by the first jury unen- cumbered by such deliberate misconduct. By obtaining a second trial, the State profited by its misconduct. The defense had been totally divulged. As a matter of policy and previous decisions, the conviction should be reversed because of the misconduct. The State should not be allowed to proceed with another trial. This would be a most effective way to prevent further miscon- duct of this nature. * * * +. E, It Was Error for the Court to Instruct That the Jury Could Convict If They Could Find That the Defendant Had Committed a Crime Merely Upon Proof That an Agreement Had Been Reached Be- cause This Instruction Effectively Amended {20 of the Indictment. * ’ * * 4° The first jury hung. J. Maloney also indicated that the second trial could go either way. (R. 2660, A. 2078-9). 68 EXCERPTS FROM STATE’S BRIEF TO WISCONSIN SUPREME COURT XII. There Was No Prosecutorial Misconduct In This Case Which Could Conceivably Justify The Reversal Of Defendant’s Con- viction. ” * + * ** * Defendant contends there was one such instance: The State’s question to Standridge during the first trial inquiring whether he knew that defendant corporation had engaged in previous “bid rigging.” (R. 1367, A. 655). Defendant argues that this question, objection to which was properly sustained at the time and for which a cura- tive admonition was given to the jury by Judge Jackman, should have prevented the State from prosecuting defen- dant a second time after the first trial ended with a hung jury and a mistrial, This argument rests upon a horrendous misapplication of ruling precedent and is utterly without merit. The principle of law which defendant has so completely dis- torted is one developed to deal with intentional prosecu- torial misconduct designed to cause a mistrial so that the State might have a better opportunity to obtain a convic- tion at a second trial. The principle was born in United States v. Tateo (1964), 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed. 2d 448, where the Court suggested that double jeopardy might bar a second prosecution after a mistrial granted during a trial where it appeared that the “prose- cutorial or judicial impropriety justifying a mistrial re- sulted from a fear that the jury was likely to acquit the accused.”’ 377 U.S. at 468, n. 3. This principle was sub- sequently noted with approval in United States v. Jorn (1971), 400 U.S. 470, 485, n. 12, 91 S.Ct. 547, 27 L.Ed. 69 2d 543, and later accepted and applied by this Court in State v. Calhoun (1975), 67 Wis. 2d 204, 223-226, 226 N.W. 2d 504. By using an incomplete quotation of the T'ateo-Calhoun principle at page 77 of its brief, defendant has made it appear that this doctrine stands for the propsition that there may be no retrial of a defendant, no matter how the first trial ended, where there was prosecutorial miscon- duct upon the first proceeding. The Tateo-Calhoun prin- ciple does not stand for such a proposition, and its utter inapplicability to the instant case should be obvious. It can apply only where the first trial ends in a mistrial be- cause of the instance of prosecutorial misconduct, if the misconduct was intentionally designed to abort the pro- ceedings because of the State’s fear that the case was likely leading to a jury verdict of aquittal. Mistrial was ordered in defendant’s first trial only after the case had gone to the jury, and after the jury was un- able to reach a verdict. Mistrial was ordered, therefore, not because of prosecutorial misconduct, but because of the hung jury. The Tateo-Calhoun principle does not bar the trial of defendant, as the circuit court properly ruled in this case. (R. 2613, A. 1370) Defendant has failed to demonstrate any prosecutorial misconduct in the pro- ceedings below which could conceivably warrant a re- versal of its conviction. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1433%3A1. Public record. Not legal advice.