# Opposition — Wolf v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 833

## Text

No. 78-1742 rn

SFP 6 1979

IN THI
SUPREME COURT OF THE UNITED SABO: RUDAK Jk CLERK

Ocronre Term, 197%

LOUIS WOLF,

Petitioner,
vs.
THE PEOPLE OF THE
STATE OF ILLINOIS,
Respondent.

ON PETITION FOR A
WRIT OF CERTIORARI TO THE
SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENTS IN OPPOSITION

WILLIAM J. SCOTT,

Attorney General of the State of Hines,
DONALD B. MACKAY,
MELBOURNE A. NOEL, JR

Assistant Attorneys General

18K West Randolph Street, Suite 2200
Chicago, Hlinois 60601

(312) 793-2570,

Attorneys for Respondent

BERNARD CARLY,
State's Attorney of Cook County, Ilinors,,
$00 Richard J. Daley Center,
Chicago, Hlinois 60602
(312) 443-5496
Marcia B. Ore,
JOAN S. CHERRY,
Assistant State’s Attorneys,

Of Counsel

Ponted by Authority of the State of hac Kk 7/9 40

tp cilia, aaa.

INDEX

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW
STATEMENT OF THE CASI 2

REASONS FOR DENYING THE WRIT OF CERTIO
RARI 1?

a ae

THE PETITIONER RECEIVED THE FREEC
TiVi ASSISTANCI OF COUNSEI
WHERE COUNSEL WAS) PRIVATELY
RETAINED. THE PETITIONER'S DI
FENSE AT TRIAL DID NOT CONFLICI
WITH THAT OF THE CODEFENDANI
AND THERE IS NO SHOWING THAT A
DIFFERENT RESULT WOULD HAVI
OBTAINED HAD THE PETITIONER AND
THE CODEFENDANT PROCURED SEP
ARATE COUNSEI THE PETITIONER
HAS FAILED TO SHOW ANY NEED POR
THIS COURT TO GRANT HIS PETITION
FOR A WRIT OF CERTIORARI 12

THE PROSECUTION’S DISCLOSURE O}
THE IDENTITY OF THE A STATE'S WIT
NESS UNDER TWO DIFFERENT NAMES
Al THE SAME ADDRESS COMPLIED
WITH THE ILLINOIS DISCOVERY
¢ RULES AND THIS COURT'S DECISION
IN BRADY V. MARYLAND, ESPECIALLY
WHERE THE RECORD SHOWS THAT
THE DEFENSE ALWAYS KNEW THI
IDENTITY OF THE WITNESS. THE PI
TITIONER HAS FAILED TO SHOW ANY
NEED FOR THIS COURT TO GRANT HIS
PETITION FOR CERTIORARL .................

CONCLUSION ........ ana idcctaceeeah, OF

u
AUTHORITIES CITED
CITATIONS

Cases:

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
PO Ene Es Me BED C ROU Piscctsrscstcsasiiaeeen

Glasser v. United States, 315 U.S. 60, 62 S.Ct.
457, 86 L.Ed 680 (1942) W.. eutibshedeuabel

Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct.
BOTS, 55 L.BEZ8 426 CUFT) occcccccorsscovsccsssesseses

Napue vy. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3
Ree BOOT C CIPD incecsiscccsnssvtudcinigonssepssasnialan

People v. Berland, 74 I\\.2d 286, 385 N.E.2d 649
GBD snicosertpnvescsnsiadinnsdimiiaiiaindumaigaaatenat

People v. Craig, 47 Ill.App.3d 242, 361 N.E.2d
FRO CTE eh, COT FP icxccchatatsctedk a

People v. Henderson 36 Ill.App.3d 355, 344
PU .SO SIP C COE EI CFD icsajsiscctesntatcbnincsenias

People v. Lagios, 39 U.2d 298, 235 N.E.2d 587
OC BIRIPD icncsscsnsncesenssscecsssipitdnssesdsls Uthaasnmachiaaes

People v. Martin, 46 Ill.2d 565, 264 N.E.2d 147
CRI DY cissccasinsccksesdisttieinendenmsanacanialinetne mee

People v. Oswald, 26 Wl.2d 567, 187 N.E.2d 685
CRISS cisco, ee

CBI D. wcissnstetatnsesbatinnaibinntatesteniimadamaianbeae tices
Smith v. Regan, 583 F.2d 72 (2d Cir. 1978).......

Thacker vy. Bordenkircher, 590 F.2d 640 (6th
Sls BP UD P iccckcactncnasiosiesieicabieiedianat ani taal

United States v. Agurs, 427 U.S. 97, 96S. Ct.
239, 49 L.Ed.2d S43 ( 1976) ....ceccccccsccocsccsscessoes

United States v. Boudreaux, 502 F.2d 557 (Sth
CoE CPPS) cxcccciemsbicnienesidkcebisn eee

United States v. Donohue, 560 F.2d 1039 (Ist
GOP. Bri FD vccccckbconcsndiiscidassndsranidiemsdieiaemaes Cea

United States v. Eaglin, 571 F.2d 1069 (9th Cir.
1977) cert. den. 435 U.S. 906 oo. ccccceceeeee

United States v. Foster, 469 F.2d 1 (1st Cir.
FUT B sece aiascustbitcianshicnseaoinnediaeie letaalnaiiciantastaaenaee

Pane
20, 23, 26
16
16, 18
25
13,23
14
25
25
22
24

14, 16
15

17
23, 25
18
17
15

18

United States v. Mandell, 525 F.2d 671 (7th Cir.
1975) cert. den. 423 U.S. 1049 oe

United States v. Medel, 592 F.2d 1305 (Sth Cir.
De as sdstiserarossebaevasciesnes

United States v. Paz Sierra, 367 F.2d 930 (2d
ede cc skiduscusachedaveadnvusneheesdeess

United States v. Steele, 576 F.2d 111 (6th Cir.
1978) cert. den. 99 S.Ct. 313 oc eeees

United States v. Valenzuela, 52) F.2d 414 (8th
Cir. 1975) cert. den. 424 U.S. 916 (1976).......

United States v. Waldman, 579 F.2d 649 (Ist
Te ical doccnaadbcvvevoacenvad

Statutes

Ill. Rev. Stat. 1969, ch. 38, 20-T(Ca)Ob) oo.
ll. Rev. Stat. 1975, ch. 110 § 72...
Ill. Rev. Stat. 1973, ch. LIOA § 412 000.

20

No. 78-1742

IN THI
SUPREME COURT OF THE UNITED STATES
OcTOBER TERM, 1978

a

LOUIS WOLF,

Petitioner,
vs.

THE PEOPLE OF THE
STATE OF ILLINOIS,

Respondent.

ON PETITION FOR A
WRIT OF CERTIORARI TO THE
SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the Illinois Appellate Court, First District,
is reported as People v. Albert Berland, et al., 52 Il. App.3d 96,
376 N.E.2d 181 (1st Dist. 1977). The opinion of the Illinois
Supreme Court, reversing the judgment of the Illinois Appellate
Court, is reported as People v. Albert Berland, et al., 74 Il.2d

286, 385 N.E.2d 649 (1979).

JURISDICTION

The jurisdictional requisites have been set forth in the
Petition for a Writ of Certiorari. However, as treated more
fully within the following argument, the respondent does not
believe that the petitioner has shown any good reason for this
court to exercise its sound judicial discretion to grant his
Petition.

QUESTIONS PRESENTED FOR REVIEW

|. Whether the petitioner received the effective assistance
of counsel where counsel was privately retained, the petitioner's
defense at trial did not conflict with that of the codefendant and
there is no showing that a different result would have obtained
had the petitioner and the codefendant procured separate
counsel.

2. Whether the prosecution’s disclosure of the identity of a
State’s witness under two different names at the same address
complied with the Illinois discovery rules and this Court's
decision in Brady v. Maryland, especially where the record
shows that the defense always knew the identity of the witness.

STATEMENT OF THE CASE

The petitioner, Louis Wolf, was convicted of the crime of
arsen with intent to defraud an insurer in violation of Illinois
Revised Statutes (1969), ch. 38, sec. 20-1(b). He was sen-
tenced to serve a term of 1% to 4% years in the Illinois State
Penitentiary and was ordered to pay a fine of $10,000. Tried
and convicted with Petitioner Wolf was a codefendant, Albert
Berland.

THE PURCHASE OF THE SUBJECT PROPERTY

The subject premises in the instant case, a partially occu-
pied, multi-unit, three story, dilapidated apartment building.
located at 715 South Lawndale Street, in Chicago, Illinois, was
purchased by petitioner's codefendant, Berland for $18,000 in
1966. On November 19, 1969, the building was partially
consumed and rendered permanently damaged in an arson fire.

Both the petitioner and Berland were involved in the
building's purchase. During the purchase negotiations, Berland
introduced petitioner to the seller as the prospective buyer, and
represented himself to be the broker. (People’s Exhibit No. 3
at 118, 119; People’s Exhibit No. 5 at 146; R. 465, 477, 478!
Petitioner testified that when the original contract was made to
purchase the property, he contacted the owner and purchased
the property alternatively, in his name or in the name of his
nominee. (R. 477-478)

Both the petitioner and Berland were involved in the chain
of title to 715 South Lawndale. At one point the beneficiary of
the trust was listed as “Fred Cooper.” (People’s Ex. No. 5 at
68; see also People’s Ex. No. 14) “Fred Cooper” was an alias
used by Albert Berland. (People’s Ex. No. 5 at 70) Signifi-
cantly, Cooper’s address was given as 1614 South Kedzie and
2840 North Broadway. (People’s Ex. No. 14) Both of these
locations were in fact business addresses of, petitioner Louis
Wolf. (People’s Exhibit No. 4, at 56; People’s Exhibit No. 3, at
72, 75)

In addition, for a period of time, the name William Berke
appeared as the beneficiary to the trust in which was placed the
title to 715 South Lawndale. (People’s Ex. No. > at 143)

‘R. designates the transcript of record. R. C designates the
common law record. People’s Exhibit refers to those exhibits
introduced into evidence at trial by the People, the respondent here.
Pet. Post-Trial Exhibit refers to those exhibits introduced into evi-
dence during the arguments on petitioner-defendant’s post-trial mo-
tions.

William Berke was petitioner’s nephew. His name appeared as
beneficiary as a result of a loan made by petitioner to Berland.
As collateral for this loan, Berland named Berke as beneficiary
( People’s Ex. No. 5, at 143; People’s Ex. No. 2, at 43; R. 503-5)

The petitioner was heavily involved with Berland in the
management of and collection of rents from 715 South Lawn.
dale. Soon after the building became Berland’s property
petitioner Wolf offered his services to find good tenants for
Berland, and to collect rents. (People’s Ex. No. 5, at 65, 66)

From September, 1969, until the fire in November, 1969,
petitioner again lent his services to Berland at Berland’s request.
(People’s Ex. No. & at 298; People’s Ex. No. 5, at 64)
Petitioner and petitioner’s employee attempted to collect the
rents from 715 South Lawndale. (People’s Ex. No. 5, at 126.
66) Petitioner would also examine the building's physical
condition, (People’s Ex. No. 1, at 20) buy coal for the building,
(People’s Ex. No. 5, at 127) and would, at times, refer various
subcontractors to Berland. (People’s Ex. No. 3, at 121)

Most of these facts petitioner admitted as being true
(People’s Ex. No. 1, at 20; People’s Ex. No. 3, at 121; People’s
Ex. No. 7, at 468; R. 467) Petitioner's repeated presenc
around the building was corroborated by the two eyewitnesses,
Albert Kyles and Evelyn Mayberry, who also testified at trial
that petitioner was at the scene of the fire. Albert Kyles had
seen petitioner collect the rent from his aunt who had pre-
viously lived in the building at 715 South Lawndale. (R. 111,
128) Kyles had even once paid the rent to petitioner himself.
(R. 130) Petitioner admitted that he had possibly collected the
rent at 715 South Lawndale as many as ten times. (R. 499)
When petitioner collected the rents it was at Berland’s request
(R. 498-499) Evelyn Mayberry had seen petitioner around 715
South Lawndale on the Sunday, Monday and Tuesday previous
to the fire on Wednesday. (R. 141)

The petitioner was so involved with the management of
Berland’s building that in October, 1969, petitioner filed a suit
against Thelma Dillon, a tenant in 715 South Lawndale.
(People’s Ex. No. 6, at 35; People’s Ex. No. 8, at 317; Wolf v.
Dillon, 69 M1 80679 filed October 14, 1979) in his own name
on Berland’s behalf.

The evidence at trial showed that the building at 715 South
Lawndale was a disastrous financial venture. During the two
years prior to the fire, Berland’s proceeds from the rental
property had steadily diminished. In the month prior to the
fire, only $250 in rent payments were collected, only 2 of the 4
tenants were paying rent and the building was two-thirds
vacant. (People’s Exhibit No. 5 at 5, 104)

Berland had attempted to sell the building on contract
three times during the two years prior to the fire: For one
reason or another every buyer defaulted on the purchase of the
building. (People’s Exhibit No. 5 at 59-62)

Berland had been cited by the City of Chicago for over 35
building code violations concerning the subject premises. The ©
City of Chicago had asked for a fine of $6,800 or the correction
of the code violations. The cause was continued until Novem-
ber 20, 1969, but on November 19, 1969, the day before the
scheduled hearing the building was set on fire and burned.
(People’s Group Exhibit No. 14)

THE FIRE INSURANCE AND THE FRAUDULENT
INSURANCE APPLICATION

On June 30, 1969, an application for fire insurance was
received by the Illinois Fair Plan Association. The application
was submitted on behalf of the Lawndale National Bank, Trust
Number 4946, with Albert Berland, listed as the owner of the
subject building. Berland listed the value of the property as
$125,000 and requested $100,000 worth of coverage. The
application contained the question, “give the applicant's five-

fy

vear loss record for fire and extended coverage perils “(Ro 71)
(People’s Group Exhibit No. 9) Berland stated on the appli
cation that he had no history of fire losses in the five years prior
to the application date of the policy. (People’s Exhibit No. 10)
Since 1967. and prior to the fire in 1969. Berland sustained fire
losses on eight separate occasions. (People’s Exhibit Nos. 5 at
15, 17, TR, 20, 21, 24, 26, 27, 28) Albert Berland’s signature
appeared on the policy application. (R. 63-65)

Prior to submitting the application. Berland brought it to
the petitioner. to have it notarized. (People’s Exhibit No. &, p
415). The application was purportedly notarized by Maurice
Blumenthal on June 20. 1969 (People’s Exhibit No. 9). which
was slightly over nine months after Blumenthal’s death in an
automobile accident. (People’s Exhibit No. 13) The statement
on the notary license said that it would expire in November of
1970. However, if Blumenthal had lived his license would have
expired in February, 1971. (People’s Exhibit No. 12)

On August 13, 1969, the American Casualty Company of
Reading. Pennsylvania, a member of the Fair Plan Group (R
66). issued a $100,000 insurance policy on 715 South Lawndale
for the period of one year. (People’s Ex. No. 9; R. 67-69)

THE ARSON FIRE

Evelyn Mayberry testified that. on the date of the fire. she
lived at 716 South Lawndale in an apartment across the street
from the subject premises. Two men in a dark colored station
wagon pulled up on Lawndale Street going north. They parked
on the east side of the street and sat in the car for a while
looking up and down the block. It appeared as if they were
watching to see if anyone was coming. The man on the driver's
side exited and took a gasoline can out of the back of the station
wagon. He went into the building at 715 South Lawndale
Then the other individual took a ladder out of the station
wagon and also entered the building at 715 South Lawndale

Mrs. Mavberry identified petitioner. Louis Wolf. as the man
who carried the gasoline can into the building (R. 144-149)

Mrs. Mayberry recognized the first individual. the one who
took the gas can out of the automobile. because she had seen
him the previous Sunday. November 16. 1969. That day
petitioner and another man were parked in the alley just east of
her apartment building She watched him for about five
minutes that day but did not know what he was doing. On the
Monday prior to the fire. she saw petitioner taking the locks off
715 South Lawndale. Again. he was accompanied by another
individual On Tuesday, Wolf and another man drove by the
building two or three times in a dark colored station wagon
(R. 149-141)

Albert Kyles testified that on the morning of November 19.
1969. he was sitting on the front steps of the apartment
building. directly across from 715 South Lawndale. He saw
two men ina station wagon pull up in front of the building and
park across the street from where he was sitting Both men
exited from the car. The driver carried a gas can and the other
man went around to the back of the station wagon and took out
a ladder’ Mr. Kyles saw both men enter the building. In court.
Mr. Kyles identified petitioner as the man who was the driver of
the car (R. 105-107) Albert Kyles had seen petitioner collect
the rent from his aunt who had previously lived in the building
at 715 South Lawndale. (R. II. 128) Kyles had even once
paid the rent to petitioner himself. (Ro 130) Petitioner stated
that he had possibly collected the rent at 715 South Lawndale
as many as tentimes. (R. 499)

Petitioner Wolf was carrying the gasoline can and was
leaning to one side. as if there was something in the can. The
men went into the building and exited a few minutes later
When petitioner came out of the building Mr. Kyles noticed
that he was swinging the gas can as if it were empty. The two
men got into the car and drove off (Ro 1OR-109)

After several minutes elapsed Mr. Kyles noticed that there
was smoke coming from the building at 715 South Lawndale.
The fire department arrived and Mr. Kyles remained at the
scene.

After the fire was extinguished, Lieutenant Burns of the
Chicago Fire Department entered the premises at 715 South
Lawndale. He determined that the fire began in a vacant third
floor apartment in the bathroom. The bathroom contained no
materials that would sustain combustion. Lieutenant Burns
testified that the fire burned downward and said that “heat or

fire never burns downward unless there is an outside force of

some sort, and in this particular instance it would be an
accelerant.” (R. 168-169) Lieutenant Burns’ extensive testi-
mony showed that the fire was not of natural origin and was
caused by an accelerant.

At trial, petitioner presented an alibi defense which the
Illinois Supreme Court later characterized as a “recent con-
coction,” and being of “recent origin.” The Court held that
“The identification was strong and the alibi was impeached.”
People v. Berland, supra, 74 \ll.2d at 307. The petitioner stated
that on the morning of the fire he was at the offices of his
attorney, Samuel Siegel. (R. 489) Three alibi witnesses, Ted
Allen, Anton Caithaimer and Samuel Siegel testified that they
were with the petitioner at that meeting. As the Illinois
Supreme Court said:

Ted Allen had no recollection of the date of the meeting
until he spoke with Wolf, Caithaimer, and Siegel on the

day he testified. Siegel had no independent recollection of

the meeting until he looked at his appointment calendar.
but the calendar did not note a meeting with Wolf on that
day. Caithaimer was teaching school when he testified he
was meeting with Wolf. Siegel testified contrary to
Caithaimer and Allen concerning who had lunch with
Wolf. Berland, supra, at 306-307

THE ALLEGED SUPPRESSION OF EVIDENCE

The Illinois Supreme Court held that the prosecutor had
not suppressed any evidence in the instant case, Berland, supra,
74 Til. 2d 286 at 311-312, and that it was not error to list the
same individual, Evelyn Mayberry under two separate names at
the same address in the State’s answer to discovery. The Illinois
Supreme Court held that petitioner Wolf was not deprived of
any evidence material to his guilt and was not denied a fair
trial. Additionally, the Illinois Supreme Court held that all of
the evidence about which the petitioner complains was known
or should have been known to the petitioner prior to trial
Berland, supra, 74 Ill.2d 286, 314.

The record is replete with examples which show that the
petitioner always was aware that Evelyn Mayberry and Eliza-
beth McGowan were the same individual, and the record also
shows that the State complied with discovery procedures.

The facts necessary to show that the petitioner was not
prejudiced and that the Illinois Supreme Court properly deter-
mined this issue are contained in the argument.

THE TRIAL AND THE APPEAL

The petitioner and Berland were charged with the crime of
arson, committed with intent to defraud an insurer, in violation
of Illinois Revised Statutes (1969), ch. 38, sec. 20-1(b) of the
Criminal Code. They were also charged with conspiracy to
commit arson in violation of Illinois Revised Statutes (1969),
ch. 38, sec. 8-2. Petitioner, was charged with arson (burning a
building without the owner’s consent) in violation of Illinois
Revised Statutes (1969), ch. 38 sec. 20-I1(a). On May 11,
1973, the grand jury returned the indictment ( No. 73-1441 ) in
the instant cause. (R. C4-7) Berland and the petitioner hired
one private counsel to conduct their defense. During the

10

presentation of the State’s case in chief petitioner procured
additional counsel to represent him during the trial. (R. 202)
Count one of the indictment charging petitioner with arson, in
that he burned a building without the owner’s consent, was
nolle prossed at the close of the State's case-in-chief.

Both Beriand and petitioner pleaded not guilty. Petitioner
testified and denied his presence at the scene of the fire.
Neither Berland nor petitioner sought to establish his defense
by implicating the other.

After a bench trial, both the petitioner and Berland were
found guilty of arson, with intent to defraud an insurer, and
conspiracy to commit arson. A motion in arrest of the judgment
on the conspiracy count was granted on the basis that the
applicable statute of limitations had expired. The petitioner
was represented by new counsel at the extensive argument on
the post-trial motions. The petitioner was sentenced to serve a
term of 12 to 4'2 years in the Illinois State Penitentiary and was
ordered to pay a fine of $10,000.

Following the petitioner’s conviction he filed a timely
appeal to the Illinois Appellate Court, First District. That court
reversed the petitioner's conviction for arson with the intent to
defraud an insurer on the basis that petitioner had been denied
the effective assistance of counsel due to counsel's alleged
conflict of interest, on the basis that the State failed to prove
petitioner guilty beyond a reasonable doubt in that credence
should have been given to the alibi witnesses and that one of
the witnesses had been listed in the list of witnesses under two
different names. People v. Berland, 52 Ill. App. 2d 96, 376
N.E.2d 18, (Ist Dist. 1977). rev'd. 74 Ill. 2d 286, 385 N.E. 2d
649 (1979).

Pursuant to the provisions of Illinois Revised Statutes
(1977) ‘ch. LIOA, sec. 615, the People of the State of Illinois
petitioned the Illinois Supreme Court for leave to appeal the
judgment of the Illinois Appellate Court, First District. The
Illinois Supreme Court granted leave to appea! and reversed

the judgment of the Illinois Appellate Court, First District.
People v. Berland, 74 Ill.2d 286, 385 N.E.2d 649 (1979). In its
opinion the Illinois Supreme Court held inter alia, that there
was no actual conflict of interest in privately retained defense
counsel's joint representation of petitioner and his co-
defendant, that counsel’s representation was competent, that
the petitioner was proved guilty of arson with intent to defraud
an insurer beyond a reasonable doubt and that the People did
not suppress any evidence favorable to the petitioner.

The petitioner filed a petition for rehearing in the Illinois
Supreme Court in which he challenged the trial court’s dis-
missal of two petitions for relief under section 72 of the Illinois
Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, sec. 72) In
Illinois, a proceeding pursuant to section 72 is a collateral
>roceeding “to correct all errors of fact occurring in the
prosecution of a cause, unknown to the petitioner and the court
at the time of trial, which, if then known, would have. prevented
the judgment.” Berland, supra, 74 Ill. 2d 286, at 314. Appeals
from the trial court’s dismissal of the two section 72 petitions
were consolidated with the direct appeal in the Illinois Supreme
Court.

The Illinois Supreme Court affirmed the judgment of the
trial Court stating that everything the petitioner had raised was
presented to the trial court either on the post-trial motions or at
the hearings on the two section 72 petitions. Matters considered
by the court included petitioner’s allegations that certain wit-
nesses at trial had perjured themselves. The Illinois Supreme
Court held that the allegations in the petitions and supporting
documents and exhibits did not support a charge of perjury and
therefore offered no basis for an evidentiary hearing or for
reversal.

It is from the decision of the Illinois Supreme Court that
the petitioner brings this petition for certiorari.

12

REASONS FOR DENYING THE WRIT OF CERTIORARI
| I.

THE PETITIONER RECEIVED THE EFFECTIVE AS-
SISTANCE OF COUNSEL WHERE COUNSEL WAS
PRIVATELY RETAINED, THE PETITIONER'S DEFENSE
AT TRIAL DID NOT CONFLICT WITH THAT OF THE
CODEFENDANT AND THERE IS NO SHOWING THAT A
DIFFERENT RESULT WOULD HAVE OBTAINED HAD
THE PETITIONER AND THE CODEFENDANT PRO-
CURED SEPARATE COUNSEL. PETITIONER HAS
FAILED TO SHOW ANY NEED FOR THIS COURT TO
GRANT HIS PETITION FOR A WRIT OF CERTIORARI.

The petitioner seeks the granting of a writ of certiorari by
this Court, and claims that the facts in the instant case would
allow resolution of the questions of how strong a showing of
conflict of interest must be and the scope of the duty of the trial
court in cases where jointly represented defendants have alleg-
edly conflicting interests. (Pet. for Cert. at 12-13) The
respondents maintain, however, that the facts in the instant case
neither permit the formulation, nor the resolution of either
question posed by the petitioner. Moreover, the respondent
notes at the outset that a petition for a writ of certiorari is
improperly brought upon this basis, for the petitioner has failed
to show that the Illinois Supreme Court has decided such a
question in a way probably not in accord with applicable
decisions of this Court. See, Rule 19(1)(a) of the Supreme
Court of the United States. Although the petitioner has
completely failed to show the need for this Court, in its sound
discretion, to grant his petition, the respondent, believing that
the Illinois Supreme Court has properly determined this issue
upon the merits will briefly address those merits.

The Illinois Supreme Court in its opinion below in the
instant case, held that “a defendant must show actual conflict of
interest manifested at trial in order to prevail in a constitutional
claim of ineffective assistance of counsel due to joint representa-

~~ a

13

tion of co-defendants by a single attorney.” People v. Berland,
74 Ill.2d 286, 289, 300, 385 N.E.2d 649 (1979). The petitioner
has not shown, and cannot show, that an actual conflict of
interest existed under the instant facts.

The indictment returned against the petitioner and his co-
defendant consisted of three counts. Only counts one and two
are relevant here. Count one charged petitioner, Louis Wolf
with arson, in that he burned the apartment building located at
715 South Lawndale, Chicago, without the consent of the
owner, in violation of Illinois Revised Statutes (1969) Ch. 38,
§ 20-!(aj. (R. C4) Count two charged both petitioner, Louis
Wolf, and Albert Berland, with the crime of arson, committed
with the intent to defraud an insurer, (R. C5) in violation of
Illinois Revised Statutes (1969) Ch: 38 § 20-1(b). Count one
of the indictment, which charged Wolf with burning a building
owned by Albert Berland, without his consent, was nolle prossed
on the People’s motion at the close of the People’s case when
the court stated that it would preclude proof on both counts one
and two. (R. 321) The petitioner and his codefendant were
convicted on count two of the indictment which charged them
with arson with intent to defraud an insurer. Petitioner and his
codefendant were represented at trial by one privately retained
counsel. Additional counsel was hired by the petitioner and
entered his appearance during the presentation of the State’s
case in chief. New, privately retained counsel represented the
petitioner during the post-trial motions and on appeal.

The Illinois Supreme Court held that the record in the
instant case was “devoid of any evidence of an actual conflict of
interest.” Berland, supra, 74 Ill. 2d at 300. The respondent
submits that the Illinois Supreme Court was clearly correct.

Wolf's defense was that he was not present at 715 South
Lawndale at the time the crime occurred. He stated that he did
not know about the fire until several days to a week after the
loss. (R. 489) Petitioner Wolf presented an alibi defense to

14

show that he was at the law office of Mr. Samuel Siegel on the
morning of the fire. Berland did not present an alibi defense
and the trial court acknowledged that there was no evidence
showing Berland’s presence at the scene of the fire. Berland’s
defense was basically one of denial and he presented testimony
in an attempt to show that the building was not over insured in
an effort to negate the prosecution’s evidence of motive.
Clearly, there was no conflict in these defenses and neither
defendant sought to implicate the other. People v. Somerville,
42 Ill.2d 1, 9, 245 N.E.2d 461 (1969); People v. Craig, 47 Ill.
App.3d 242, 361 N.E.2d 736 (Ist Dist. 1977).2

The petitioner speculates that defense counsel's representa-
tion of him was hampered because of privately retained
counsel’s representation of the codefendant. The Illinois Su-
preme Court has specifically rejected creating a “conflict of
interest out of mere conjecture as to what might have been
shown.” People v. Somerville, 42 Ill. 2d 1, 245 N.E.2d 461
(1969).3

In the instant case, neither Berland nor petitioner was
attempting to establish his defense by implicating the other.
Moreover, there was no reason to assume that petitioner would
ever try to show that Berland burned the building had he been
represented by different counsel or even if he had been tried
separately. The evidence clearly did not show that Berland was
present at the scene of the fire, as the trial judge acknowledged.

There is absolutely no reason that can be inferred from any
testimony as to why petitioner would burn the building without

2In this brief in the Illinois Supreme Court, petitioner Wolf
conceded that the defenses presented at trial were not antagonistic.
(Brief for Defendant Wolf, at 44, Ill. Sup. Ct. Docket No. 50012)

3In United States v. Steele, 576 F od 111 (6th Cir. 1978), the
sixth circuit court of appeals declined to adopt a per se rule under the
sixth amendment requiring jointly represented defendants to be
advised of their right to separate counsel in cases where, as here, joint
counsel was privately retained.

15
Berland’s consent. For petitioner to have taken such an action
is out of the question. He testified that he had been friends with
Berland for over thirty years. There is no evidence that they
had any type of disagreement, or that Berland owed petitioner
any money. Clearly, any allegation of conflict of interest is pure
speculation. Their defenses did not conflict with one another.

The Illinois Supreme Court’s position in Somerville, supra,
of refusing to reverse a conviction because of speculation to
what might have been, has been followed by a number of
Federal Circuit Courts of Appeals. United States v. Medel, 592
F.2d 1305 (Sth Cir. 1979); United States v. Steele, 576 F.2d
111 (6th Cir. 1978) cert. den. 99. S.Ct. 313; United States v.
Mandell, 525 F.2d 671 (7th Cir. 1975) cert. den. 423 U.S. 1049;
Smith v. Regan, 583 F.2d 72 (2d Cir. 1978); United States v.
Eaglin, 571 F.2d 1069 (9th Cir. 1977) cert. den. 435 U.S. 406.
United States v. Valenzuela, 521 F.2d 414 (8th Cir. 1975) cert.
den. 424 U.S. 916 (1976).

Moreover, the petitioner’s cause was advanced by counsel
without sacrificing his interests in favor of the codefendant
before trial, during the prosecution’s case in chief, and during
the defense case in chief. Counsel conducted a pre-trial
investigation, filed and argued pre-trial motions, made objec-
tions to various exhibits, argued points of law, cross-examined
the State’s witnesses and presented a defense. The petitioner
cannot and does not point to anything in the cross-examination
of the State’s eyewitnesses or any witnesses which would show
that petitioner’s interests were sacrificed in favor of the codefen-
dant.

Additionally, during the presentation of the State’s case in
chief petitioner Wolf hired a second attorney. (R. 259) At the
conclusion of the State’s case in chief the State nolle prossed
Count One of the indictment. When the defense presented its
case the only count on which the co-defendant and the petition-
er were being tried was Count Two.

16

The respondent submits that the instant case is precisely
the type of case where a joint representation is more effective
for the defendants. As the Court of Appeals said in United
States v. Medel, supra, 592 F.2d 1305, 1312 (Sth Cir. 1979),
“when the parties’ interests were so closely related, if either had
suggested that the other party was guilty, then this allegation
might have worked to the detriment of the accusing party.” As
Mr. Justice Frankfurter said in his dissent in Glasser v. United
States, 315 U.S. 60, 92, 62 S.Ct. 457, 86 L.Ed. 680 (1942),
quoted approvingly in Holloway v. Arkansas, 435 U.S. 475, 98
S.Ct. 1173, 55 L.Ed2d 426 (1978), “Joint representation is a
means of ensuring against reciprocal recrimination. A common
defense often gives strength against a common attack.” This
Court in Holloway clearly enunciated that, “Requiring or per-
mitting a single attorney to represent co-defendants, .. . is not
per se violative of constitutional guarantees of effective assis-
tance of counsel.” Holloway supra, 435 U.S. at 482.

The Illinois Supreme Court extensively discussed both the
holdings in Glasser v. United States, supra, and Holloway,
supra, in their opinion in Berland, supra.

The court has refused an invitation to require trial judges
to ascertain that co-defendants’ decisions to proceed with
one attorney are informed (People v. Somerville (1969).
42 Ill. 2d 1,10). The crucial determination is whether there
is a conflict, since absent such conflict there is no threat to a
defendant’s right to the assistance of separate counsel.
Neither Glasser v. United States, (1942), 315 U.S. 60, 86
L.Ed. 680, 62 S.Ct. 457, nor Holloway v. Arkansas, (1978),
435 US. 475, 55 L.Ed. 2d 426 98 S.Ct. 1173, indicate that
a pretrial inquiry and waiver of separate counsel is man-
dated in all cases of joint representation. Because joint
representation is not per se unconstitutional there is no
need to require judicial inquiry until the conflict appears.
The language in Glasser and Holloway that it is the duty of
the trial judge to see that the trial is conducted with
solicitude for the essential rights of the accused is directed
specifically to trial court insistence upon joint representa-

17

tion where counsel or the defendant has requested separate
representation. Since there was no conflict here, judicial
inquiry was not required. Berland, at 305.

There was no objection to joint representation voiced by
privately retained counsel nor by the petitioner or his codefen-
dant in the instant case and there was no actual conflict. The
facts of the instant case, therefore, do not fall within the ambit
of Holloway v. Arkansas, supra, and render Holloway in-
applicable to the case at bar. See Thacker v. Bordenkircher,
590 F.2d 640 (6th Cir. 1979).

The petitioner urges that this Court grant a writ of
certiorari to determine whether it is a per se violation of the
Sixth Amendment to permit joint representation of co-
defendants in the absence of an inquiry or an admonishment by
the trial court. (Pet. for Cert. at 15-16) He also inquires as to
what degree of prejudice must be demonstrated by a defendant
to show that his Sixth Amendment rights have been violated.
Neither the formulation nor the resolution of this question are
allowed by the facts of this case. The petitioner cannot show, in
any way, that he was prejudiced by counsel’s joint representa-
tion of him and his codefendant or that an actual conflict
existed.

As support for his position the petitioner relies on United
States v. Waldman, 579 F.2d 649 (Ist Cir. 1978) and states
that Waldman holds that the “failure of the judge to adequately
alert the defendant to the dangers of joint representation is per
se violative of the Sixth Amendment.” (Pet. at 15-16) Yet,
Waldman does not so hold. The decision in Waldman, which
was handed down subsequent to another First Circuit case,
United States v. Foster, 469 F.2d 1 (1st Cir. 1972), cited in
Waldman, was decided as was Foster, pursuant to that circuit’s
supervisory powers, Waldman, supra, at 652, rather than being
founded on constitutional grounds. In a footnote (Pet. at 16)
the petitioner, citing Waldman, and United States v. Donohue,

18

560 F.2d 1039 (Ist Cir. 1977), quotes that portion of the
opinion which deals with the type of inquiry required by the
trial judge in joint representation situations in the First Circuit.
The respondent notes, however, that the Waldman Court went
on to say,

[ W Je do not think that any specifics of the form a court’s
inquiry concerning a defendant’s waiver of separate coun-
sel would rise to the level of a constitutional right... .
[W]e view Donahue as merely expanding a supervisory
rule,... Waldman at 652.

The Court affirmed Waldman’s conviction.

Additionally, the First Circuit has stated that it does not follow
a rule of per se reversal. United States v. Foster, supra, 469
F.2d (Ist Cir. 1972). A number of the Circuit Courts of Appeal
have declined to exercise their supervisory powers and imple-
ment an affirmative inquiry requirement on the trial court.
United States v. Mandell, supra, 525 F.2d 671 (7th Cir. 1975)
(cert. den. 423 U.S. 1049) and the cases cited therein at 676.

As the Court of Appeals said in United States v. Mandell,
supra, 525 F.2d 671 (7th Cir. 1975) cert. den. 423 U.S. 1049,
“the primary responsibility for the ascertainment and avoidance
of conflict situations must lie with the members of the bar.
Accord, United States v. Paz-Sierra, 367 F.2d 930, 932-933 (2d
Cir. 1966); United States v. Boudreaux, 502 F.2d 557 (Sth Cir.
1974). This Court in Holloway v. Arkansas, supra, held that
“an attorney representing two defendants in a criminal matter
is in the best position professionally and ethically to determine
when a conflict of interest exists or will probably develop in the
course of a trial.” 98 S.Ct. 1173 at 1179.

For all of the above stated reasons, the respondent urges
that because the Illinois Supreme Court properly decided this
issue on the merits, because the decision of the Illinois Supreme

19

Court is in accord with the decisions of this Court, and because
the petitioner has failed to show any need for this Court to
grant his petition for a Writ of Certiorari, such petition should
be denied.

THE PROSECUTION’S DISCLOSURE OF THE
IDENTITY OF THE A STATE’S WITNESS UNDER TWO
DIFFERENT NAMES AT THE SAME ADDRESS COM-
PLIED WITH THE ILLINOIS DISCOVERY RULES AND
THIS COURT'S DECISION IN BRADY v. MARYLAND,
FSPECIALLY WHERE THE RECORD SHOWS THAT
THE DEFENSE ALWAYS KNEW THE IDENTITY OF
THE WITNESS. PETITIONER HAS FAILED TO SHOW
ANY NEED FOR THIS COURT TO GRANT HIS PETI-

' TION FOR CERTIORARI.

The petitioner also prays for the granting of a writ of
certiorari by this Court on the basis that the prosecution
allegedly suppressed the identity of an eyewitness, Evelyn
Mayberry, who was also known as Elizabeth McGowan, by
causing her to be listed under both names, at the same address,
in the State’s answer to discovery. The petitioner claims that he
did not learn of this evidence until after trial and had he known
that Mayberry and McGowan were the same person he could
have impeached the witness with a prior, allegedly inconsistent,
statement. He also alleges that Mayberry’s testimony was
perjured and that the State knowingly condoned the use of this
allegedly perjured testimony. In answer, the respondent main-
tains that a petition for a writ of certiorari is improperly brought
upon this basis, for the petitioner has failed to show that the
Illinois Supreme Court has decided a federal question of
substance not theretofore determined by this Court or that the
Illinois Supreme Court has decided such a question in a way
probably not in accord with the applicable decisions of this
Court. See Rule 19(1)(a) of the Supreme Court of the United

20

States. Although the petitioner has failed to show the need for
this Court, in its sound discretion, to grant his petition, the
respondent, confident that the Illinois Supreme Court has
properly determined this issue will briefly address the merits.

In summary, the respondent maintains (1) that in
supplying the list of witnesses to the petitioner both the Illinois
Supreme Court Rules on Discovery and the dictates of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963),
were complied with and no evidence was suppressed (2) that
the petitioner always knew that Evelyn Mayberry and Elizabeth
McGowan were the same person (3) that it was clear that
wpetitioner did have the witness’ prior statements at trial and
attempted to impeach her with them at trial (4) that there was
no material inconsistency in the witness’ testimony (5) that
another eyewitness corroborated the witness (6) and that there
was absolutely no evidence of perjury on the part of the State’s
witnesses anywhere in the record. The Illinois Supreme Court
in its opinion considered all points raised here by the petitioner
and correctly resolved the issue against the petitioner.

The respondent submits that the petitioner was always
aware of the fact that the witness had been listed under both
names, at the same address, on the State’s list of witnesses and
that doing so was an unintentional act which occurred as result
of the State’s desire to completely comply with discovery
requirements. Ill. Rev. Stat. 1973, Ch. LIOA § 412. It is clear
that the dual listing of the names was an act from which no
harm flowed. It is also obvious that defense counsel knew
about, and intended to utilize the witness’ prior statements to
impeach her. During the trial of the instant case, defense
counsel on cross-examination, attempted to impeach Evelyn
Mayberry by asking her the following question: Did you ever
tell anyone that you saw a man walk in there with a mop
bucket? (R. 147) The only ume Mrs. Mayberry stated that she
saw a man carrying a bucket was in the original police report

21

where, in describing the incident, she was erroneously identified
as Elizabeth “McGowan” rather than as Evelyn, wife of
Roosevelt McGowan. (R. C116; Pet. Post Trial Ex. No. 2)

An Illinois Bureau of Investigation report of a March 19,
1971, interview with Evelyn Mayberry was also made available
to the defendant. (R. C123-4; Pet. Post-Trial Ex. No. 3) and
the fact that she had been interviewed was even brought out by
defense counsel during his cross-examination of her. (R. 148-
149) In that report Evelyn Mayberry was identified as the
common-law wife of Roosevelt McGowan. The account given
by Evelyn Mayberry to the investigator for the Illinois Bureau
of Investigation was substantially the same as the account given
by her in the original police report where she was erroneously
identified as Elizabeth rather than Evelyn. She said she saw
two white male subjects enter 715 South Lawndale, one of
whom was carrying an aluminum can. She then stated that she
left for the store. (R. C116, 123-4, Pet. Post-Trial Exhibit
Number 2)

At the civil trial in Federal District court where the fire
insurance claim was litigated Evelyn Mayberry testified that she
saw two men park a black station wagon in front of 715 S. .
Lawndale. She saw them go into the building and one of the
men was carrying a can. Then she went grocery shopping.
(Pet. Post-Trial Ex. No. 4 at 56-57) At that trial she identified:
herseif as Mrs. Roosevelt McGowan, not as Elizabeth. ( Pet.
Post-Trial Ex. No. 4 at 55) During her testimony she said that
Mr. McGowan was her husband. ( Pet. Post-Trial Ex. No. 4, at
76)

In addition, Mrs. Mayberry, testifying in federal court
under the name, Mrs. Roosevelt McGowan, stated on cross-
examination, that on the evening of November 19, 1969, the
police had brought a man in a car in front of their house to see
if her husband, Roosevelt McGowan could identify him. (Pet.
Post-Trial Ex. 4 at 71-73) This same information is contained in

22

Evelyn Mayberry’s statement to the Illinois Bureau of In-
vestigation. (R. C 124) In that statement in which she is
described as being the common-law wife of Roosevelt
McGowanr, sne states that the police came for Roosevelt
McGowan. They asked him to “go out to the car with them.”
She did not know if he identified anyone at that time. (R. C
124)

Prior to the trial in Federal District court, Mr. Roosecelt
McGowan was deposed. When he was asked what his wife’s
name was, he said it was Evelyn, ( Pet. Post-Trial Ex. No. 7 at 3;
R. 700) He also stated that his wife left for the store before the
fire started. (Pet. Post-Trial Ex. at 14) At the trial of the
instant cause she used her previous name, Evelyn Mayberry,
rather than McGowan. (R. 124) Again, her story was substan-
tially the same one she recounted on previous occasions. She
saw two men drive up to the front of 715 South Lawndale. One
man carried a gas can and they both entered the building.
Then she left for the store. (R. 136-139)

On September 28, 1973, approximately three months prior
to the instant trial, a defense investigator interviewed Evelyn
Mayberry when she was in the hospital suffering from a gall
bladder condition. (R. 825-826, 840-841, 861-862) This
interview, made part of the record during the argument on the
petitioner’s post-trial motions (R. 826, 861-862), demonstrates
that a defense investigator saw and spoke to Evelyn Mayberry
in the hospital and made a written report of this to defense
counsel. Certainly, the knowledge of the defense investigator is
attributable to the defense attorney, as the knowledge of a
police officer is attributable to a prosecutor. People v. Marlin,
46 Ill. 2d 565, 264 N.E. 2d 147 (1970).

In short, Evelyn Mayberry never claimed at any time to be
Elizabeth McGowan. Apparently, when she and her common-
law husband. Roosevelt McGowan, were first interviewed by
the police her name was erroneously listed as Elizabeth rather

te zee ae

23

than Evelyn. (R. C116) The only time she used the last name
of McGowan was during the civil trial in Federal District Court
and then she was known as Mrs. Roosevelt McGowan, not as
Elizabeth. (Pet. Post-Trial Ex. No. 4 at 55) In the other
documents, which were exhibits in the instant case, she is
referred to as Evelyn Mayberry, the common-law wife of
Roosevelt McGowan (R. C123-4), or as McGowan’s wife
Evelyn (Pet. Post-Trial Ex. No. 7 at 4), not Elizabeth. Both
names appearing on the list of witnesses contained the same
address, 716 Lawndale.

The petitioner always possessed the federal trial transcript,
knew that Mrs. McGowan was in fact Evelyn Mayberry, and
could see, by examing the two transcripts that her testimony in
the instant case was very similar to her testimony at the federal
trial.

The Illinois Supreme Court found on the aforementioned
facts that no suppression of evidence occurred in the instant
case, hence, the dictates of Brady v. Maryland, supra, 373 US.
83, were not violated. The Illinois Supreme Court also held
that in no way was petitioner deprived of any evidence material
to his guilt under United States v. Agurs, 427 U.S. 97, 49
L.Ed.2d 343, 96 S.Ct. 239 (1976). People v. Berland, supra, 74
Il.2d at 311-312. The respondent maintains that the opinion of
the Illinois Supreme Court is unequivocally correct.

The petitioner also contends that the dual listing of witness
Mayberry was done intentionally by the prosecution in an
attempt to mislead him. There is not one iota of evidence in
this record to support this contention. In fact the record
supports only the opposite conclusion. When new, substitute
defense counsel appeared and raised this contention during ihe
arguments on the post-trial motion the prosecutor stated, “I ask
the Court and say to the Court, that it was not done in any
intentional fashion.” (R. 845)

24

The petitioner’s final accusation is that the State knowingly
used perjured testimony to obtain his conviction. The respond-
ent maintains and the Illinois Supreme Court held, that the
record does not lend any credence at all to the petitioner’s
assertion. Berland, supra, 74 Ill.2d at 316. The petitioner
raised this argument in the post-trial motions, on the direct
appeal, in a collateral attack on the conviction (Ill. Rev. Stat.
1975, 110 § 72: (coram nobis) and in the subsequent appeal of
the denial of the collateral attack. His arguments were
repeatedly rejected by the trial court and then totally rejected
again by the Illinois Supreme Court.

While Evelyn Mayberry testified at the federal insurance
trial that she was unable to see the faces of the two men who
exited the station wagon on the morning of the fire, she did
testify that she had previously seen both of them and the
vehicle. She positively identified the petitioner as the man she
saw driving the station wagon on several occasions prior to the
fire, specifically on the Monday before it occurred. (Pet. Post-
Trial Ex. No. 4, at 58-59) She identified Defendant’s Exhibit
No. 12 at the federal trial, a picture of Wolf, as depicting the
driver of the station wagon ( Pet. Post-Trial Ex. 4 at 60), which
pulled up in front of 715 South Lawndale.

At the trial of the instant case she was never asked if she
had been able to see the faces of the two men. She did
positively identify the petitioner as the driver of the car, who
then exited the car ana walked into the building with a gasoline
can on the morning of the fire. It is clear that a person can be
identified by his general appearance at the time of the crime.
People v. Oswald, 26 Ilil.2d 567, 187 N.E. 2d 685 (1963).
Additionally, when Mayberry’s testimony in the civil trial is
examined it is substantially the same testimony she gave in the
trial of the instant case. It is axiomatic that the credibility of
witnesses is a matter for the trier of fact to determine. The law
is also clear that “mere conflicts in the testimony of a witness

25

with prior statements made by him “does not establish that the
witness has given perjured testimony.” People v. Henderson, 36
Ill. App.3d 355, 344 N.E.2d 239 (Ist Dist. 1976); accord,
People v. Lagios, 39 Ill.2d 298, 235 N.E.2d 587 (1968).
Clearly, any possible inconsistencies in the testimony were
minor and it is clear that there is not one iota of perjury on this
record.

A fact that the petitioner conveniently ignores is that
Evelyn Mayberry was not the only eyewitness to identify the
petitioner at the scene of the fire. Albert Kyles was also an
eyewitness and he knew the petitioner having seen him on
previous occasions. On the day of the fire, when petitioner was
observed by Kyles, Kyles already knew who he was. Kyles’
previous acquaintance with petitioner made his identification
strong, positive and credible. Kyles clearly corroborated
Mayberry’s identification.

The prosecution obviously had no duty to point out that
Mayberry’s testimony was false where in fact her testimony was
positive and credible. See Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Clearly, there was no
perjured testimony used to obtain the petitioner’s conviction.

The decision of this Court in United States v. Agurs, supra,
427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 343 (1976), is of no aid
to the petitioner. As this Court said in Agurs, “The prosecutor
will not have violated his constitutional duty of disclosure
unless his omission is of sufficient significance to result in the
denial of the defendant's right to a fair trial.” 96 S.Ct., at 2399.
The Agurs Court also held that “the mere possibility that an
item of undisclosed information might have helped the defense,
or might have affected the outcome of the trial, does not
establish ‘materiality’ in the constitutional sense.” Id. at 2400.

26

There was no information in the instant case that was not
disclosed to the petitioner, a fortiori there was nothing un-
known which was favorable to the defendant ( Brady, supra) or
which would have affected the outcome of the trial.

For all of the above stated reasons, the respondent urges
that because the Illinois Supreme Court properly decided this
issue On the merits, because the decision of the Illinois Supreme
Court is in accord with the decisions of this Court, and because
the petitioner has failed to show any need for this Court to
grant his petition for a Writ of Certiorari, such petition should
be denied.

27

CONCLUSION

The People of the State of Illinois respectfully request that
the petition for a writ of certiorari be denied. ‘

Respectfully submitted,

WILLIAM J. SCOTT,
Attorney General of the State of Illinois,

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR.
Assistant Attorneys General
188 West Randolph Street, Suite 2200
Chicago, Illinois 60601
(312) 793-2570,

Attorneys for Respondent.

BERNARD CAREY,
State’s Attorney of Cook County, Illinois,
500 Richard J. Daley Center,
Chicago, Illinois 60602
(312) 443-5496
Marcia B. Orr,
JOAN S. CHERRY,
Assistant State’s Attorneys,

Of Counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0217%3A2. Public record. Not legal advice.