# Petition — Jago v. Speigner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1339%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1076 ## Text DEC A i979 = IN THE Supreme Court of The United States at | No. %9-866 October Term, 1979 ARNOLD R. JAGO, Superintendent Southern Ohio Correctional Facility, Petitioner VS. HENRY SPEIGNER, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT WILLIAM J. BROWN Attorney General SIMON B. KARAS Assistant Attorney General State Office Tower 26th Floor 30 East Broad Street Columbus, Ohio 43215 (614) 466-5414 ATTORNEYS FOR PETITIONER MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216 TABLE OF CONTENTS UG Ue bes c5 ss vc ess ccs eens 1 ee ee 1 a errr ree eee WHETHER AN APPELLATE COURT MAY ISSUE A MANDATE AFFIRMING THE DECISION OF A DISTRICT COURT GRANTING HABEAS CORPUS RELIEF WHEN SUBSEQUENT TO ITS OPINION BUT PRIOR TO ISSUANCE OF THE MANDATE THE APPELLATE COURT IS NOTIFIED THAT THE CASE OR CONTROVERSY BETWEEN THE STATE CUSTODIAN AND THE HABEAS CORPUS APPLICANT HAS BECOME MOOT BY VIRTUE OF THE DEATH OF SUCH APPLICANT............. 2 CONSTITUTIONAL PROVISION INVOLVED ........ 2 ce a 2 ARGUMENT IN SUPPORT OF CERTIORARI ........ 5 A. Conflict With Decisions Of ky owe sd ee nese 5 SE Se 6 C. Timing of Speigner’s Death .................. 9 D. Practical Effect Of Decision.................. 10 EE SE Eee 11 CR ar SCAT OF GE VE, oi rec ievcesce eens 12 ES A Nae NES 5 0 8 8 eee ae BA 13 Opinion, Speigner v. Jago, _. F.2d. , No. 76-3200, oe ee ee ree ree 13 Order, July 24, 1979, denying rehearing and suggestion of ee ix eee sph aN a wk 54 Order, August 3, 1979, ee a ge a 5 in be wow 0 6 56 Order, September 7, i979, granting withdrawal of ESTEE SUDA AN Oe ae ee 57 paandete, Septemuer 11, TOTS. 26. ee ct eee 58 Order, October 3, 1979, denying motion to recall, set aside ONG /Or TOCOMNNEOT TAGNEMES 2 cw. kk bk kk ee ces 59 A ee os ae ee pau 60 Death Certificate for Albert Stewart es er I Boao ks iy hei ee vee eens 62 il — TABLE OF AUTHORITIES Page DeF unis v. Odegaard, Oe Sis PER ERO): 65.5 vO ewe teh Sere e ees s 9 Dove v. United States, ee ee I oc ek eG beh Che See e es 10 Duke Power Co. v. Greenwood, ee a CR ies ek kha eee k dicwe bh aens +) Durham z«. United States, ee ae TEs 5 ak Se ha WR 10 Flast v. Cohen, ge BG. Se ee ree a re eee ee 9 Great Western Sugar Co. v. Nelson, US , 60 L. Ed. 2d 735 (1979) ..... 5,6, 11 Jackson v. Virginia, US. , 61 L. Ed. 2d 560 (1979)...... 7, 8,10 Knapp v. Baker, Se f . Oe wae (oem Clr. STO), 6. ceca aces 9 Powell v. McCormack, rr ee va on abe ehh oa ea eee 9 Roe v. Wade, ee es a on eR eee a 9 Speigner v. Jago, 450 F. Supp. 799 (N.D. Ohio 1978)............ 3,8 iil Thompson v. City of Louisville, 362 U.S. 199 (1960)........ United States v. Bechtel, 547 F. 2d 1379 (9th Cir. 1977) United States v. Moehlenkamp, 557 F. 2d 126 (5th Cir. 1977). United States v. Munsingwear, Inc., 340 U.S. 36 (1950)......... United States v. Toney, 527 F. 2d 716 (6th Cir. 1975), cert. denied, 429 U.S. 838.... Wetzel v. Ohio, Wek Ua, GRRE. 6 nc wesns iv IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 ARNOLD R. JAGO, Superintendent Southern Ohio Correctional Facility, Petitioner, VS. HENRY SPEIGNER, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT OPINIONS BELOW The mandate of the United States Court of Appeals for the Sixth Circuit is unreported. (Appendix page 58.) Similarly, the order denying the motion to recall, set aside, and/or reconsider mandate is unreported. (Appendix page 59). For the reasons which will appear infra_in this petition for writ of certiorari, it is the above orders, rather than the underlying opinion, which are challen ged. —— JURISDICTIONAL BASIS The mandate of the United States Court of Appeals for the Sixth Circuit was issued September 11, 1979. (Appendix page 58). The order denying the motion to recall, set aside, and/or reconsider mandate was issued October 3, 1979. (Appendix page 59). Jurisdiction is conferred by 28 U.S.C. Section 1254 (1). QUESTION PRESENTED WHETHER AN APPELLATE COURT MAY ISSUE A MANDATE AFFIRMING THE DECISION OF A DIS- TRICT COURT GRANTING HABEAS CORPUS RE- LIEF WHEN SUBSEQUENT TO ITS OPINION BUT PRIOR TO ISSUANCE OF THE MANDATE THE APPELLATE COURT IS NOTIFIED THAT THE CASE OR CONTROVERSY BETWEEN THE STATE CUS- TODIAN AND THE HABEAS CORPUS APPLICANT HAS BECOME MOOT BY VIRTUE OF THE DEATH OF SUCH APPLICANT. CONSTITUTIONAL PROVISION INVOLVED This case involves that portion of Article III, Section 2 of the United States Constitution relating to justiciable cases and controversies: The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States and treaties made, or which shall be made under their authority;. . . STATEMENT OF THE CASE Respondent Speigner was indicted by the April 1973 Term of the Grand Jury of Cuyahoga County, Ohio for the crime of murder in the first degree. Upon trial by jury, Speigner was found to be guilty of the lesser inclu- ded offense of murder in the second degree. As a result, Speigner was sentenced on June 20, 1974 to a term of from fifteen years to life. (Case No. CR-9849B). In addition, as a result of -the above conviction, a pro- bation for malicious destruction of property and posses- sion of burglar tools to which Speigner had previously pled guilty was revoked on June 26, 1974. (Case No. CR-6961). Subsequent to incarceration, Speigner appealed to the Court of Appeals of Cuyahoga County from both the murder conviction and the probation revocation. On July 31, 1975, that court affirmed in all respects. (Case Nos. 33824 and 33902). A further appeal to the Ohio Supreme Court was denied on March 19, 1976. (Case No. 75-916). On May 7, 1976, Speigner filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Ohio, Eastern Division. As one of the claims of the petition, Speigner alleged that his conviction was void of evidentiary support. Approximately two years later, on March 9, 1978, the district court entered an opinion granting the writ on the basis claimed above. Speigner v. Jago, 450 F. Supp. 799 (N.D. Ohio 1978). After finalization of the order as a judgment on March 14, 1978 and after a stay of execu- tion of judgment was denied by the district court, Speig- mer was released from prison by the terms of the dis- trict court order. lthe order originally granted a condition of retrial within ninety days. Speigner’s subsequent motion for modification of the order on double jeopardy grounds was withdrawn upon stipulation of the parties that no evidence, other than what was presented at the original trial, was available for retrial. As a result, Speigner was given an absolute release from the murder conviction and returned to the custody of the Cuyahoga County Pro- bation Department on his other charges. Petitioner Jago filed his notice of appeal on April 3, 1978 and thereafter sought and was granted an expedited appeal. Oral argument was heard on October 9, 1978, and the decision was rendered June 13, 1979. By 2-1 vote, each of the panel members filing an opinion, the appellate court affirmed. (Appendix page 13). A timely petition for rehearing and suggestion of rehearing en banc was denied with “less than a majority having favored consideration en banc.” (Appendix page 54). Subsequent to such denial, Jago requested a stay of the mandate of the court pending his intended filing of a petition for writ of certiorari. Such order was granted on August 3, 1979 and preparatory steps were taken to file such petition. (Appendix page 56). On August 16, 1979, however, the very same day the print- er’s proofs for such petition were received, information was received by Jago’s counsel which led to an inves- tigation disclosing that Speigner had died in Los Angeles, California on April 20, 1979, as a result of a suspected homicide. (Appendix page 60). After verifying such information, Jago immediately notified the appellate court by a motion to vacate the stay and by memoran- dum suggestion of mootness filed August 24, 1979. Attached to such motion and memorandum were a copy of the death certificate for Speigner, indicating that his death was initially listed under the name of an alias, and an affidavit of Jago’s counsel indicating that the information received on August 16, 1979 was the first actual notice of Speigner’s death. (Appendix pages 62 and 60). In time frame reference, the death oc- curred approximately two months prior to the issuance of the appellate court opinion, with the discovery there- of occurring approximately two months thereafter. On September 7, 1979, the appellate court granted Jago’s motion to withdraw the stay of mandate, but did not act on the memorandum suggestion of mootness. (Appendix page 57). As a result, the mandate of the appellate court, affirming the district court’s decision, was issued September 11, 1979. (Appendix page 58). On October 3, 1979, the court granted Jago’s motion to treat a previously filed supplement to the memor- andum suggestion of mootness as a motion to recall, set aside, and/or reconsider such mandate, but denied such relief on the merits without explanation. (Appendix page 59). This petition for certiorari to challenge the mandate issued has timely followed within ninety days of such mandate. ARGUMENT IN SUPPORT OF CERTIORARI A. Conflict With Decisions Of This Court. While more subtle than the situation in Great Western Sugar Co. v. Nelson, US. , 60 L. Ed. 2d 735 (1979), the refusal of the appellate court below to amend its mandate so as to require dismissal of the initial com- plaint for mootness is in direct conflict with applicable decisions of this Court requiring such relief. United States v. Munsingwear, Inc., 340 U.S. 36 (1950). In Great Western Sugar Co. v. Nelson, supra at 736, this Court, citing Duke Power Co. v. Greenwood, 299 U.S. 259, 267 (1936), reaffirmed long standing precedent that: Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appel- late court to set aside the decree below and to remand the cause with directions to dismiss. The error therein, as noted by this Court, was that the appellate court had dismissed an appeal as being moot, but had specifically allowed the judgment of the dis- trict court to stand in contravention of the above prin- ciple. Similarly, the appellate court herein, in issuing its mandate of affirmance, has retained precedential authority for a decision that was moot in the ultimate sense. Certiorari should be granted for the sole reason of redressing a failure to follow the dictates of this Court. Each litigant is entitled to the knowledge that departure from the prevailing principle of law will be dealt with accordingly and the case is of national im- portance for that reason alone. B. Mootness. Unlike Great Western Sugar Co. v. Nelson, supra, the appellate court herein did not make a specific finding of mootness of the decision before issuing its approval of the district court opinion. Any question that the case is not moot however would seem to be foreclosed by the very fact that due to Speigner’s death, Jago had to terminate his initial petition for certiorari to challenge the correctness of the appellate court decision. Given Speigner’s death, the sole purpose of a reversal, if given, would have been to render an advisory opinion, for no live person existed to return to prison. Yet, by not remanding to the district court to dismiss the initial complaint as moot, but affirming, the appellate court has retained precedential value for a decision which Jago cannot further litigate and which as a representative of the State and the courts thereof which affirmed Speig- ner’s conviction, it was his intention to so challenge. In this regard, it shouid be noted that such petition would have been far from frivolous: An even more recent case in that court provoked a lively debate among three of its members regard- ing the effect of Winship, upon federal habeas corpus. The writ was granted in that case, even though the trial record contained ‘“‘some evidence of the applicant’s guilt.” See Speigner v. Jago, F. 2d (6th Cir., June 13, 1979). Jackson v. Virginia, US. , 61 L. Ed. 2d 560, 572, footnote 7 (1979). The district court in this mat- ter, allegedly under the “no evidence” rule of Thompson v. City of Louisville, 362 U.S. 199 (1960), held: The prosecutor’s theory of the case, which evidently assumed [ without evidentiary basis] that petitioner and the driver of the victim’s car had robbed and beaten Bell, shot him, and stolen his car, is one explanation for the facts that were proven. It would however, be equally reasonable to infer that a third person killed Bell in a fight since there is no evidence, direct or circumstantial, connecting petitioner to the time or place of the crime. The defense’s failure to set forth an alternative theory does not mean that the facts “are consistent only with the theory of guilt and irreconcilable with any_reasonable theory of [ petitioner’s] innocence’’. State v. Kulig, 37 Ohio St. 2d 157, 160, 309 N.E. 2d 897, 899 (1974). In accordance with Ohio law, the trial judge charged the jury that the prosecutor was required to prove that “a person, that is the Defendant, committed the crime as described to [the jury].” Tr. 379-80. However, since there was simply no proof of this element of the crime, the jury should not have been permitted to consider it. Without proof of each and every essential element of the crime charged, the state has not met its burden of proof under Ohio law. . . .A conviction which does not satisfy the state standard certainly fails to afford the due 450 F. Supp. supra at 800. In affirming, the majority of the appellate court intimated error by the district court in finding ‘“‘no evidence”’ in its strict sense, but in antici- pation of this Court’s decision in Jackson v. Virginia, supra, affirmed on the basis that even under the “no evidence” rule, considerations of weight and sufficiency could be taken into account. The appellate court opinion however did not reject the district court decision that the constitution requires that circumstantial evidence must exclude every reasonable hypothesis other than guilt: Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140. We decline to adopt it today. Under the standard es- tablished in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting infer- ences - must presume - even if it does not affirma- tively appear in the record - that the trier of fact resolved any such conflicts in favor of the prose- cution, and must defer to that resolution. Jackson v. Virginia, supra at 578. It was thus Jago’s intention in the initial petition, despite this Court’s decision in Jackson v. Virginia, supra, to question, whether in anticipation of Jackson, the appellate court below established a standard beyond that of Jackson it- self, and allowance of this precedent to stand without Jago being able to challenge it is exactly why moot cases should be properly labeled as such. C. Timing of Speigner’s Death. To be sure, the discovery of Speigner’s death, occur- ring subsequent to argument, but prior to issuance of the opinion, and being discovered after issuance of the opin- ion, but prior to issuance of the mandate, presents a somewhat unusual and novel factual sequence. The closest analogous case appears to be Knapp v. Baker, 509 F. 2d 922 (5th Cir. 1975), which also involved an appeal by the State from a grant of habeas corpus where the suggestion of death was made subsequent to argument but prior to issuance of the opinion. Factually novel or not however, the applicable principles of law still require a finding of mootness. Since Speigner’s death occurred prior to issuance of the opinion, even though not dis- covered until after the date of death, it would relate back. In this regard, it should be noted that Speigner was at liberty, died under an alias, and in a location far removed from Ohio’s jurisdiction. Under such cir- cumstances, the belated discovery of his death as set forth in the affidavit presented to the appellate court (Appendix page 60) is not unexpected. Moreover, it is the mandate of the court which acts as the official record of proceedings. The suggestion of death was pre- sented with diligence upon discovery and the appellate court was provided with every opportunity to sua sponte amend its mandate. Finally, the timing of Speigner’s death and discovery thereof is somewhat irrelevant as a “case or controversy” must exist at every stage of pro- ceedings. Powell v. McCormack, 395 U.S. 486 (1969); DeFunis v. Odegaard, 416 U.S. 312 (1974); Flast v. Cohen, 392 U.S. 83 (1968); Roe v. Wade, 410 US. 113 (1973). The central question is whether the court can provide any actual relief to the litigants. Thus, for example, if Speigner had died after filing of Jago’s pe- 10 tition, this Court would properly have declared the case moot and ordered appropriate relief. A more concrete example has been this Court’s disposition of criminal cases in which the criminal defendant has died during the pendency of appeals and certiorari. Dove v. United States, 482 U.S. 325 (1976); Durham v. United States, 401 U.S. 481 (1971); Wetzel v. Ohio, 371 U.S. 62 (1962); United States v. Toney, 527 F. 2d 716 (6th Cir. 1975), cert. denied, 429 U.S. 838; United States v. Bechtel, 547 F. 2d 1379 (9th Cir. 1977); United States v. Moehl- enkamp, 557 F. 2d 126 (5th Cir. 1977). In such circum- stances, this Court has held that upon death of the defendent, the entire criminal proceedings should abate. Under a similar view, the entire federal proceedings herein should have been dismissed. D. Practical Effect of Decision. In the pleadings in the appellate court, Jago specifi- cally asserted that the issue herein involved more than mere technical pleading and a general desire to obivate an unfavorable decision. Not only does the existence of the appellate court opinion act as general precedent, but at the present time, Speigner’s co-defendant has pending before the same district court as decided this case, a habeas corpus petition on the exact same basis. An af- firmance in this case, rather than dismissal for mootness, would seem to require relief and affirmance at two levels of the judiciary without de novo review. While as a prac- tical matter, Jago would not request the impossible — treating this case as never having arisen, a decision strip- ping the opinion of precedent at least allows the request for de novo review without the preclusion of an existing and binding precedent. This is especially important in light of the multi-faceted split in the court below in its opinion and on request for rehearing en banc, this Court’s subsequent decision in Jackson, supra, and the fact 11 that, but for Speigner’s death, it was Jago’s intention, now precluded solely by mootness, to petition this Court for review under the Jackson, supra standard. To allow this case to stand as binding precedent therefore allows this case not only to control numerous habeas corpus cases generally, but a specific matter as well. In keeping with Great Western Sugar Co. v. Nelson, supra, this Court should specifically uphold the validity of its decisions. 7 CONCLUSION For the above reasons, this Court should grant cer- tiorari. As summary relief, this Court should vacate the mandate of the court below and remand with in- structions that the district court dismiss the matter as moot. Respectfully submitted, WILLIAM J. BROWN Attorney General SIMON B. KARAS Assistant Attorney General State Office Tower, 26th Floor 30 East Broad Street Columbus, Ohio 43215 (614) 466-5414 ATTORNEYS FOR PETITIONER 12 CERTIFICATE OF SERVICE I hereby certify that three (3) copies of the foregoing Petition For Writ Of Certiorari has been forwarded to Elliot R. Levine, 8 Caldwell Avenue, Somerville, Massa- chusetts, 02143, counsel for respondent Henry Speigner, by U.S. mail, postage prepaid, this day of , 1979. I further certify that all persons required to be served have been so served. SIMON B. KARAS Assistant Attorney General 13 No. 78-3290 UNITED STATES COURT OF APPEALS For The Sixth Circuit HENRY SPEIGNER, Petitioner-A ppellee, Ve ARNOLD R. JAGO, SUPERINTENDENT, Respondent-A ppellant. Appeal from the United States District Court for the Northern District of Ohio, Eastern Division. Decided and Filed June 13, 1979. Before: EDWARDS, Chief Judge, WEICK, Circuit Judge, and PECK, Senior Circuit Judge. PECK, Senior Circuit Judge, delivered the opinion of the Court. EDWARDS, Chief Judge, (pp. 13-16) de- livered a separate concurring opinion. WEICK, Circuit Judge, (pp. 16-36) delivered a separate dissenting opinion. PECK, Senior Circuit Judge. At a jury trial in the state court, petitioner Henry Speigner was convicted of second degree murder under O.R.C. §2901.05.' After 1 Petitioner Henry Speigner was indicted by the Grand Jury of Cuyahoga County, Ohio, in April 1973, for the crime of murder in the first degree, in violation of former O.R.C. $2901.01. Petitioner was convicted of the lesser included offense of murder in the second degree under O.R.C. §2901.05. 2901.05 (12403). Murder in second degree. No person shall purposely and maliciously kill another. 14 unsuccessfully exercising his rights to direct appeal, Speigner petitioned the district court for a writ of habeas corpus. The district judge, in granting the writ, concluded that petitioner’s conviction was “totally de- void of evidentiary support.” The present case is a difficult one because of the small quantum of evidence presented to support petitioner’s conviction of second degree murder. On the one hand, there is “some evidence of record which tends to make petitioner’s guilt as to the crime charged more likely than not.” On the other hand, and contrary to the con- clusion of the state appellate court, the totality of the evidence against petitioner does not amount to evidence sufficient to suport, as a matter of law, guilt beyond a reasonable doubt. Thus, the present case requires this Court to carefully delineate the extent to which a fed- eral court is obligated to review, under Fourteenth Amendment due process, a state criminal conviction. EVIDENCE OF RECORD A review of the trial transcript reveals that the vic- tim, William Bell, was murdered either late in the night of June 25, 1973, cr early in the morning of June 26, Whoever violates this section, except in the manner de- scribed in sections 2901.01, 2901.02, 2901.03, and 2901.04 of the Revised Code, is guilty of murder in the second degree and shall be imprisoned for life. - Rule 401, Federal Rules of Evidence reads as follows: Definition of “Relevant Evidence.” “Relevant evidence’ means evidence having any ten- dency to make the existence of any fact that is of con- sequence to the determination of the action more probable or less probable than it would be without the evidence. 15 1973. His body which had been badly beaten, was found lying in a street in Cleveland, Ohio, at approximately 7:00 a.m., June 26. It was established at trial that Bell had died of two fatal gun shots, a .32 caliber pistol shot from the front and a shotgun blast from the back. During trial the state presented evidence that a high- way patrolman had stopped Bell’s automobile for a routine safety inspection at 5:02 a.m. on June 26, 1973, at a location approximately one hour’s drive from the spot where the victim’s body was found. When the ve- hicle was stopped, Speigner was a passenger in the automobile. He identified himself by use of an alias, Frank Mathews, and he presented the patrolman with a welfare card. In the course of the officer’s questioning of the driver of the car, Roger Scott, Scott stated that he had rented the vehicle from the victim for $15. Speigner heard Scott’s statement, and both men laughed at the fact that they had been “stuck” with an unsafe vehicle. Certain evidence presented at trial specifically refuted the rental story offered by the driv- er. First, testimony disclosed that Bell had used his car in his business and that he had followed a rule of never lending it to anyone, not even his brothers. Fur- ther, various checks and documents were found in a briefcase in the trunk of Bell’s car, and these items were to be filed by the victim on the morning of June 26, 1978. Speigner was released after a short detention by the highway patrol, but he stated he would return and post a $50 bond for the driver Scott. Without fulfilling this promise, Speigner left the Celevland area within a few days. During the period of the next ten months, Speig- ner traveled to various cities across the country, includ- ing San Francisco, Las Vegas, St. Louis and New York 16 City. When he was apprehended by New York police on April 10, 1974, Speigner stated that he was aware the Cleveland police had been looking for him and he admitted that he had been acquainted with both the vic- tim Bell and Scott, the driver of the vehicle. An inventory of the victim’s car was conducted in the morning hours of June 26, 1973. This inventory re- vealed a shattered vent window on the driver’s side of the vehicle, window glass on the front floor, blood stains of the victim’s (A) on the rear seat, a bloody finger- print of a undetermined origin on the right front door, and a sawed-off shotgun under the seat which Speigner had been occupying. Subsequent scientific examination of the shotgun did not, in any way, connect the gun to petitioner and the gun was not testfired or otherwise proven to be the murder weapon. THE “NO EVIDENCE” STANDARD In reviewing the district court’s grant of a writ of habeas corpus, we are obligated to adhere to the pre- vailing standard of review in habeas corpus proceed- ings, the so-called ‘“‘no evidence” standard, enunciated by the Supreme Court in Thompson v. City of Louis- ville, 362 U.S. 199 (1960). Therein, the Court con- cluded that a state violates a defendant’s constitutional due process when it convicts the defendant of a crime without evidence to support an essential element of the crime. 362 U.S. at 204, Cf. Vachon v. New Hampshire, 414 U.S. 478, 480 (1974) ; Harris v. United States, 404 U.S. 1232, 1233 (1971). The ultimate question presented to us is whether the charges against petitioner were so totally de- void ef evidentiary support as to render his convic- tion unconstitutional under the Due Process Clause 17 of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evi- dence, but on whether this conviction rests upon any evidence at all. * * * Under the words of the [city] ordinance itself, if the evidence fails to prove all three elements of this loitering charge, the conviction is not supported by evidence, in which event it does not comport with due process of law. * * * Just as “conviction upon a charge not made would be sheer denial of due process,” so is it a violation of due process to convict and punish a man without evidence of his guilt. Thompson, supra, 362 U.S. at 199, 204, 206. On a superficial level of analysis, the ‘no evidence” standard of Thompson appears to quickly dispose of the present appeal. As we previously stated, there is “some” evidence of record which tends to establish, to a degree, that petitioner is guilty of the crime of second degree murder. For example, the victim’s automobile was stopped at 5:02 a.m., a few hours after his murder, a short distance from the place where his body was dis- covered. At that time blood stains of the victim’s type were in the car; a bloody but unidentified fingerprint was on the door; a sawed-off shotgun was under the passenger’s seat; a vent window was shattered and glass was strewn on the floor. From this evidence, a jury could reasonably infer that the victim’s car might have been at the scene of his murder. When we add to this inference the facts that petitioner was a passenger in the vehicle when it was stopped at 5:02 a.m., that he was seated directly over the shotgun, and that he later admitted knowing both the victim and the driver of the 18 vehicle, we must conclude that the record in this case contains “some” evidence relevant to the elements of second degree murder. On a deeper level of analysis, however, the “no evi- dence” standard of Thompson does not automatically bar petitioner’s request for relief. In decisions subse- quent to Thompson, the Supreme Court has interpreted the “no evidence”’ standard in a manner not consistent with the narrow, literal meaning of the words, “no evi- dence.” In these decisions, the Court has given the Thompson standard a more flexible construction, one which takes into account the fact that in virtually every criminal prosecution there is “some” evidence of record to support a conviction. Two cases, Vachon v. New Hampshire, supra, 414 U.S. 478 (1974), and Johnson v. Florida, 391 U.S. 596 (1968) (per curiam), illustrate the current meaning of the Thompson standard. In Johnson a defendant had been found guilty of vagrancy under a Florida statute that made it unlawful to be found “wandering or strol- ling” from place to place without any lawful purpose or object. At trial, the state had established that the de- fendant had been seated on a park bench at 4:25 in the morning; that just prior to his arrest the defendant had told the officers; that he was waiting fr a bus; that the buses had stopped service some five and one-half hours prior to the defendant’s .rrest and that, when ques- tioned by the officers, the defendant offered no explana- tion of what he had been doing for the previous three hours. This evidence notwithstanding, the majority of the Court concluded “. . . that so far as the ‘wandering or strolling’ ingredient of the crime is concerned, the record is lacking in any evidence to support the judg- ment.” 391 U.S. at 598. As to the single evidentiary 19 fact that the defendant had been seated on a park bench, allegedly for some three hours, Mr. Justice White wrote in dissent, “Most inhabitants of park benches reach their bench by wandering or strolling.” 391 U.S. at 599 (White, J., dissenting). In Vachon v. New Hampshire, supra, a case decided some six years after Johnson, the Supreme Court again adopted a fiex- ible interpretation of the Thompson standard. In Vach- on the operator of the Head Shop in Manchester, New Hampshire, had been convicted of contributing to the delinquency of a minor in violation of a state statute. The minor had purchased a button inscriped ‘‘Copula- tion Not Masturbation” at the Head Shop from an un- identified saleperson who may or may not have been the defendant. The majority of the Court, in vacating the state’s judgment of conviction, concluded that the record was “completely lacking” in evidence on the element of wilfulness, an essential element of the charge. 414 U.S. at 479. The Court reached this conclu- sion despite the facts that the defendant, according to his own trial testimony, had controlled and operated the shop on the day of the sale in question; that the button sold to the minor had been prominently offered for sale on a velvet display card on a counter in the shop; and that the same type of button had been previously pur- chased at the shop during the time the defendant was its operator. 414 U.S. at 486 (Rehnquist, J., dissent- ing). Decisions such a Vachon and Johnson implicitly rec- ognize that a federal court’s review of a state trial rec- ord must be, to a certain extent, a matter of degree. Recognition of this fact is essential if habeas corpus review of evidentiary matters is to fulfill any meaning- ful purpose. Although trial records at times contain 20 only small amounts of circumstantial and highly specu- lative evidence, virtually every record contains “some” evidence, in an absolute sense, that tends to establish the guilt of the accused. Thus, if the Supreme Court were to exclude all notions of degree from habeas cor- pus review, the Thompson “no evidence” standard would be rendered an Iron Curtain type blockade in the path of every state prisoner who seeks federal court re- view of the evidence supporting his conviction. Even though the Supreme Court, in decisions such as Vachon and Johnson, has implicitly rejected a rigid in- terpretation of the “‘no evidence” standard, the absolute language of the Thompson decision continues to pose a fundamental dilemma. When a federal court denies a petitioner habeas corpus relief, the court can simply cite the language of the Thompson standard and refer to an “iota of evidence” found in the state trial record. See, e.g., Brooks v. Rose, 520 F.2d 775, 777 (6th Cir. 1975). However, when a federal court grants a peti- tioner habeas corpus relief, the court is frequently forced to ignore certain relevant evidence in order to make its decision consistent with the literal meaning of the words, “‘no evidence.” In view of the continuing na- ture of this dilemma, we are convinced that it is time to forthrightly recognize that the ‘‘no evidence” stand- ard of Thompson, as it prevails today, incorporates some notion of degree or weight of evidence.* Consis- tent with this recognition, I would disavow the literal 3 For example, if to make a case, it is necessary to prove that a defendant was in a given Cincinnati motel room at a par- ticular time in question, testimony that he was in the State of Ohio would clearly be ‘“‘no evidence” as to the critical fact. Testimony placing him in the building, however, might pre- sent a close question; while evidence that the defendant had gotten off the elevator on the particular floor of the motel within the crucial time frame would properly support a jury’s finding in the face of a constitutional challenge. 21 interpretation of the “no evidence” standard adopted by this Circuit in Brooks v. Rose, supra, and would adopt the dissenting views of Judge McCree therein.* In Brooks, despite the existence of some speculative evidence that the defendant was sane at the time of the acts in question, the record was without eviden- tiary support within the context of the Fourteenth Amendment.’ As Judge McCree wrote: 4 But see Judge Edwards’ concurring opinion and Judge Weick’s dissenting opinion, infra. The dissenting opinion herein states that “no panel of this Court has the power or right to overrule the decision of another panel.” The opinion concludes that “the overruling should be a function of an en banc court, and not that of a single panel, unless a subsequent Supreme Court decision overrules the decision on which the panel relied.” However, there is no rule in this Circuit which requires an en banc hearing to overrule a decision of a three-judge panel. Fur- ther, such requirement has not been followed in practice by this Court. See, e.g., United States v. Bess, F.2d ; No. 78-5095, slip opinion page 13 (6th Cir., filed February 28, 1979) ; Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). Finally, the wisdom of such requirement is questionable. The existence of the machinery for an en banc hearing serves as a necessary and effective check on one panel’s power to overrule another panel’s decision. However, it would be a waste of judicial time and resources to automatically require an en banc hearing each and every time this Court overrules or modifies one of its previous decisions. 5 Although I would reverse the decision of Brooks v. Rose, 520 F.2d 775 (6th Cir 1975), I do not suggest that expert testimony supporting a finding of insanity can be refuted only by expert testimony to the contrary. Rather, I conclude simply that in Brooks the particular testimony relied upon to establish the defendant’s sanity was so overwhelmed by the opposing testimony of legal insanity that the result was “no evidence” for the purpose of Fourteenth Amend- ment due process. 22 I respectfully dissent. The question presented by this appeal is whether a jury may arbitrarily dis- regard overwhelming and uncontradicted expert opinion evidence that a defendant was insane when he committed the act for which he was tried, and find him sane beyond a reasonable doubt solely on the basis of eyewitness testimony of his behavior that afforded no direct evidence of his mental state and permitted only speculative inferences about it. I would hold that this conviction is without evi- dentiary support of a critical element of the offense charged and that it therefore offends the due pro- cess guarantee of the Fourteenth Amendment. 520 F.2d at 780 (McCree, J., dissenting). Turning once again to the evidence of record in the present case, and in the light of our reasoning above, we conclude that the record before us lacks the required evidentiary support for petitioner’s conviction of second degree murder. First, there is no evidence of record to indicate the length of time that petitioner was in the victim’s car when it was stopped at 5:02 a.m. on June 26, 1973. Second, other than the fact that petitioner had been sitting directly over the shotgun found un- derneath a seat in the victim’s car, there is no evidence that connects petitioner to the gun. In fact, the only piece of identifying evidence produced in regard to the gun is a blond hair and petitioner is black. Third, there is no evidence that the shotgun found in the victim’s car was the shotgun used in the victim’s murder. Finally, there is no evidence either to establish that petitioner had recently used a gun of any kind or that petitioner had recently been involved in a fight, when he was stopped on June 26, 1973. In summary, although there is evidence to constitutionally support a finding that petitioner committed some crime, for example posses- 23 sion of a stolen vehicle or obstruction of justice,° the record on appeal does not constitutionally support a finding that petitioner actually killed or participated in the killing of the victim, an essential element of second degree murder under O.R.C. §2901.05. CONCLUSION In Thompson v. City of Louisville, supra, the Su- preme Court considered the extent to which the Due Process Clause of the Fourteenth Amendment requires a federal court to review the evidence supporting a state criminal conviction. In its decision in Thomp- son, the Court set forth what has come to be called the “no evidence” standard of review. As is apparent from the absolute language of the Thompson decision, the ‘no evidence” standard was designed to prevent any unwarranted intrusions by the federal courts into the process of state criminal trials. Although the standard has effectively furthered this purpose, a literal meaning of the standard virtually eliminates the very function served by habeas corpus review of evidentiary records. Practically speaking, in every criminal prosecution, there is “some” evidence of record, in an absolute sense, that tends to establish the guilt of the accused as to the crime charged. As a result of this fact, when the Thompson “no evidence” standard is applied in a literal 6 In addition to the evidence previously considered in the text, the record below contains evidence that petitioner cooperated with the driver Scott in giving a false rental story and that petitioner evaded the Cleveland police for some ten months after his June 26, 1973, release. Although these facts may tend to prove that petitioner committed some crime, they do not tend to prove that petitioner com- mitted the crime of second degree murder. ————— ———— 24 manner, the result invariably is the dismissal of the state prisoner’s request for federal court relief. It is true that the Supreme Court has repeatedly adhered to the absolute language of the Thompson decision; yet in a number of decisions relying on Thompson, the Court has implicitly recognized the potentially restrictive im- pact of the “no evidence” language. In short, the Supreme Court, in decisions subsequent to Thompson, has given the “no evidence” standard a flexible con- struction; one which does not openly comprehend the principles of “sufficiency of evidence,” but one which does not rigidly adhere to a “totally devoid of eviden- tiary support” standard. See, e.g., Vachon v. New Hampshire, supra; Johnson v. Florida, supra. We con- clude that the substance of the ‘‘no evidence” standard, as it has been developed in decisions such as Vachon and Johnson, must prevail over the form of its language. Recently the Supreme Court granted certiorari in the Fourth Circuit opinion of Jackson v. Virginia, 47 L.W. 3415, in part to review the “no evidence” standard in relation to the holding of In re Winship, 397 U.S. 358 (1970). Mr. Justice Brennan, writing for the majority in Winship, strongly asserted the “constitutional stat- ure” of the principle of guilt beyond a reasonable doubt.” Lest there remain any doubt about the constitu- tional stature of the reasonable-doubt standard, we explicity hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. 397 U.S. at 364. Two years ago, Mr. Justice Stewart, in his persuasive dissent in Freeman v. Zahradnick, 429 U.S. 111 (1977) (denial of a grant of certiorari), 25 suggested that the holding of the Court in Winship may have effectively modified the Thompson standard. The Winship case held that the Due Process Clause requires proof beyond a reasonable doubt of every element of a criminal offense. A jury must be instructed accordingly. Properly instructed juries, however, occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt — even when it is clear that the defendant was entitled to a directed verdict of acquittal as a matter of law. In a federal trial, such improper apnlication of law (as defined by Winship) to fact requires reversal of the con- viction on the ground of insufficient evident. The power of a federal court to review the appli- cation of federal law to the facts as found also op- erates, however, in criminal cases originating in state courts. 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