# Petition for Writ of Certiorari — Wolden v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1411%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 391 U.S. 965 ## Text ae >. LIBRARY — s ae wer SUPREME COURT.U:B ~~. eae 98a ea ee | No 1326 ‘|. APR 15 1989 INTHE. - 4 JOHN. DAVIS, oumRK " SUPREME COURT OF THE UNITED STATES a OCTOBER TERM, 1967. wa PoP e. ¢ ie ‘RUSSELL L.WOLDEN, © : _ Petitioner, THE PEOPLE OF THE STATE OF CALIFORNIA, M. re ¢ On, PETITION FOR'A WRIT OF CERTIORARI TO THE COURT OF AFFRAL OF THE STATS OF CALIPORIGA, . FIRST APPELLATE DISTRICT — JAMES MARTIN MacINNIS 465 California Street San Francisco, California Sd | 94104 EUGENE GRESSMAN fe ee 1730’ K Street, N: W. 3 p : eae | Washington, D. C. 20006 j : ee Counsel for Petitioner | "April 15, 1968. 4 3 ; a4 ; riers > ze * ‘ Pe ; rs * - ‘Statement of the Case .......-2..... PAP k eee BE Gree 3 Reasons for Granting the Writ ....... vetiecwseseens eee Tage OP Pe Py ey res Oy ae @ebn cake 23 | om (Opinion of Court of Appeal) neenkdevnenwan App. 1 * _. CASE CITATIONS | Adjmni v. United States, 346 F.2d 654 (CA. De eeigececes < Brulay v. United States, 383 F.2d 345 (CA.-9).2.2....... a 3 Burdeau v. McDowell, 256 U.S. 465-........ Spanicea tas Burton v. Wilmington Parking Authority, 365 US. 715....... 22 Calo v. United States, 338 F.2d 793 (C.A. 1).............- 1i9 Delaney v. United States, 199 F.2d 107 (C.A. 1). ‘esdibaeend ve Elkins v. United States, 364 US. 206.......:.. nace a Estes v.. Texas, 381 US. $32. .........06. ieee wa a db hwwags Irvin v. Dowd, 366 US. 717......... eeendbaaehe cawee 17 Jones v. v. United States, WEUE TN «ov vvcisiccescee ee ——Mapp v. Ohio, 367 US. 643 ......... PER PE Sanur yr 22 New York Times v. Sullivan, 367 U.S. Wf. ce 18 People v. Martin, 45 Cal.2d 455... .. Weice's cacakeeee Se Ges. _ Reitman v. Mulkey, 387 US. 369 . 0... 22... eee eee eee 22 Rideau v. Louisiana, 373 US. 723.......... ise ceweeas ‘17 - Sackler v. Sackler, 229 N.Y.S.2d 61. ...........20ceeees 22 - Sheppard v. Maxwell, 384 U.S. 333. ..... eae seeker ie eae United States v. Eversole, 209 F.2d 766 (CA. 7).........-. 20 e pas os * ‘ : Se .." . > . aes . a~ e - 3 « ee , “ a + . . ’ : . . mo . : . | A e ™ go> . 7 . : , r - < ’ . ¢ : ‘ : ; . . e ? ‘ . ie ; . ; | ° | x 3 | : : ‘ ; | | s ¥ \ ~ SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1967 SF » oe, "9 f No. | 3 ‘ 3 . RUSSELL L. WOLDEN, Petitioner, ~ Gq Vv. a ; THE PEOPLE OF THE STATE OF ‘CALIFORNIA, ; : Respondent.” e- - PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF :APPEAL OF THE STATE OF CALIFORNIA, The petitioner respectfully prays that. a writ of certiorari issue to review the judgment rendered in this proceeding on November 9, 1967, by the Court. of Appeal of the State of California; First Appellate District, Division Three. OPINION BELOW The opinion of the Court of Appeal of the State of Cali- fornia, First Appellate District, Division Three, appears at’ 255 Cal. App. 935 (advance sheets) and is reproduced in the appendix hereto. No other a: were oon in the proceedings below. a URISDICT ION E } , The opinion and judgment of the Court of Appeal were enteréd on November 9; 1967, affirming petitioner’s con- - ss g victions of May 28, 1966, in the Superior Court of the — State of California in San Francisco. The Court of Appeal me - denied a timely petition for rehearing on December 8, 1967. | ‘Thereafter, on January 3, 1968, the Supreme Court of Cali- fornia-denied.a petition for hearing. On March a. 1968, Mr. .Justice Douglas signed an order extending the time _ for filing, this petition for certiorari to and iricluding April: 15, 1968. The jurisdiction of this Court is invoked under 28 U.S.C. § ecdldeda . QUESTIONS PRESENTED “ a > Whether the massive, pervasive and prejudicial pre-_ - trial publicity concerning bribery charges against a public official, and a state court’s refusal to ‘postpone the trial of that official on such charges until the impact of such pub- licity had been: dissipated, precluded the official from re-. ceiving. a fair trial consistent with the Sixth Amendment. and the Due Process Clause of the Fourteenth Amendment. 2. Whether the concededly unlawful stealth of :docu- "ments and records by a private citizen and the subsequent . seizure of those documents by. state prosecutors pursuant to'a search warrant constituted an unreasonable search and seizure, in violation of the Fourth Amendment and the Due Procéss Clause of the Fourteenth Amendment; as to an individual against whom. such documents and records are utilized to obtain a criminal conviction. CONSTITUTIONAL. PROVISIONS INVOLVED | United States: Constitution, Fourth Amendment: The right of the people to be secure in their per- ‘son, h » papers, and effects, against unreasonable . ‘searches and seizures, shall not be violated; and no - Warrants ‘issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly de- eer, a “3 7 o a : : 7 . Scribing the place to be searched, and the persons or things to be seized. United States Constitution, Sixth Amendment: In all criminal prosecutions, the accused shall en- joy the right td’ a speedy ‘and public trial, by an - impartial jury of the State and district wherein the crime shall have been committed, . | United States Constitution, ‘Potirteenth Amendment: : | -’ Section 1. ... nor shall any State deprive any - person of life, _— or POR Senys without due process of law . i “ F | eg: STATEMENT OF THE CASE = Raising the federal questions Petitioner, as a public official, namely the Assessor of. the City and County of San Francisco, was convicted in the | 2 ’ Superior Court of thé State of California for the commis- “ . sion of the crimes of bribery (California Penal Code § 68) * and conspiracy (California Penal Code § 182). The gist of , ° such charges was that election. -carhpaign’ contributions re- . ceived by petitioner were allegedly given for the purpose . of influencing him in | the. official conduct of. his public of- — fice. . In his trial and on his appeal, sstiiisines @acifically pre- served the following federal constitutional questions: ' A! That the petitioner was deprived of his right to a fair trial in violation of the Sixth Amendment to the Con- .. stitution of the United States because of prejudicial asta trial publicity. _ _B. That the procurement of all evidence in the case. was in violation of the Fourth Amendment to the Consti- ‘ tution of the United States, the product of unlawful search __ and seizure in that all of such evidence had been admittedly ; stolen from its lawful = , ° x ‘ . Foe . . . ; ‘ - ¥ ? . .* 4 4 nial 7 ee 2. Factual background The petitioner RUSSELL L. WOLDEN had sed: as the Assessor of San Francisco for 28 years; in the summer of | 1965, purely fortuitous circumstances resulted in the seiz- “ure by law enforcement officials, namely the Attorney General of the State of California and the District Attor- ney -of the County. of.Alameda, of certain books,. records - and memoranda belonging to a tax consultant named - JAMES. TOOKE, the contents of which purported to estab- -blish dishonest dealings among TOOKE, the substantial tax- payers represented by him and various assessment officials of. the Pacific Coast states. - The Assessor of Seattle, Citinsion was as indict ra convicted; the Assessor of San Diego County, California, committed suicide and his deputy was indicted in his stead; the Assessor of Alameda County, California, was indicted _— and conyicted; the-Assessor of Los Angeles County, €ali- fornia, was indicted and achyaitiod by ee of the Court . - ¢ ° : “se In the case of ‘he present satis: unlike the other ~ cases flowing from the same source out of which other convictions were had, the-conclusion of criminal culpabil- ity was inferential and depended upon the interpretation of complicated streams of circumstantial evidence. The trial @anscript itself. is some 6300 pages long. S 3. Facts as to the search and seizure As indicated, the source of all.the evidence against the petitioner “in this case was the records of the erring tax con-- sultant; JAMES TOOKE. - The story of t typ Pr Eneerreatt of those records may be set forth as fo TOOKE, ’ who-represefited- numerous soars clients bo -assessment matters throughout California and other parts — of the general Pacific Coast area, harbored: jealous and » vindictive office ‘associate, one NORMAN PHILLIPS »Who, having failed to obtain a partnership interest in TOOKE’s business,. backed a i Biter ag against his ompreyer s office Sr Pe) ie 5 premises one. weekend in 1 the summer of 1965 and assis _away, cabinets and all, the tax consultant’s voluminous rec- ords of dealings with individuals and public officials cover- _ ing yeafs of dishonest endeavor. See bial sana 11, 42 ef seq. The original. \nterttion of PHILLIPS was to hold. TOOKE’s recast for ransom and he' apparently employed an attor- ' | ney to represent him in such demands. At first he asked for $100,000, but when TOOKE, whose imagination. car- - ried no prescience of future events, appeared unyielding, - —>he, wered his price and at one. time evinced a willingness to settle for a permanent raise in salary. However, the © content of JAMES TOOKE’s records and paraphernalia was so inflammatory that word of their import was somehow transmitted to the San Francisco Chronicle and to the Of- . fice of the Attorney General. Too late, TOOKE filed a lawsuit in Alameda County Superior Court fer the return _ of his ‘chattels and papers. Process was issued, orders to _ Show cause were calendared, but the Superigr Court did © nothing to imple ent the execution of its own process and it became clear that TOOKE would not be able to obtain _ ‘protection against the release of his diaries and misdeeds - from the court. This posture of. the’ problem is seen by the defendant’s _ Exhibit Y, which the trial court permitted to be marked for identification but which was excluded from evidence proper. The colloquy surrounding this proposal of evidence is seen at page 2223 et seq. of the Reporter’s T script. The IKKE records, in-gross, were marked for id nfifica- tion Exhibit 127 at page 1803 of the Reporter’s Tran- script; the custodian: of this cabinet of materials, an Alameda County law enforcement officer, testified briefly in the absence of the jury, supplementing the history al- ready recounted with the informatiori that while TOOKE was attempting to litigate his rights, the District Attorney «| of Alameda County ‘obtained a search warrant from the , Presiding Judge of the Alameda County Superior Court,. based upon an affidavit of the same NORMAN PHILLIPS — 4 ~ who had. stolen TOOKE’s entire files and had attempted to | extract fro n their owner a bounty in ransom-money. PHILLIPS, by that time'a.confirmed ally of law enforce- ment, declared’ that the TOOKE records contained evidence _ of bribe-giving and related conduct on TOOKE’s part in Ala- . meda County, San Diego County, Contra Costa:County and | Orange County (absent San Francisco because, as discussed, the San Francisco evidence depended upon subtleties and nuances not seen in the various other prosecutions). PHIL- LIPS further declared that he could recognize such materi- als as those then stored in the Sheriff’s Office of Abande aoe County. While the civil process procured by TOOKE was ignored by the Presiding Judge in Alameda County Superior Court, the District Attorney’s request was not; the same Court which had ignored TOOKE’s requests issued the search war- rant ‘and the TOOKE files were then surrendered to the prosecutors’ world.’ : It was petitioner’ 5 persistent lites that the later aut lation of TOOKE, who was persuaded to become a prose- : cution witness in the various counties and to waive any — privilege against search or seizure which he might other- . wise have possessed; was meaningless in view of the fore- ' going account of ‘the procurement of these materials. When the WOLDEN trial was called, the petitioner, be- fore the calling or seating of any prospective juror, moved the court to exclude from. the record all testimony, docu- » ments, records, identities. of persons and events, and all potential evidence of any kind or character having its source, or flowing from, or obtained as a result. of information ’ derived from the TOOKE files, papers and memoranda. This objection was made upon the ground that, despite the fact _ that PHILLIPS, the admitted thief, was not a member of law enforcement. personnel, ‘the seizure nevertheless represented -a violation of the Fourth Amendment to the Constitution of the United States and of the correlative rights set forth | 1’, f ' I, | wa in Articlé i Section 19 of the Constitution of the State of. California. The objection was overruled. - ‘In the decision below affirming WOLDEN’s convictions, not one word appears concerning petitioner’s properly raised claim that these facts constituted an unlawful search and > seizure, in violation of the Fourth Amendment as 3 incorpo- rated by, the Fourteenth Amendment. 4. Facts concerning the pre-trial publicity Prior to the. impanelméht of the jury, the petitioner moved. nie for an indefinite stay or continuance of the trial because of . the impact on his constitutional right to a fair trial of the - prejudicial pre-trial publicity in all news media. The claim was made and evidence was introduced to demonstrate that the total atnfesphere created by such publicity was inflam- matory to an extreme and almost indescribable degree.. See Reporter’s Transcript 1.11 et seq.. In the presentation of this matter, great quantities of newspaper stories relevant to: WOLDEN, printed between July, 1965, and February. 21, 1966, were docketed for the — court’s inspection. While the District Attorney declined to — enter into a stipulation to the effect that radip broadcasts and television releases generally contained the same material in relation to the petitioner as the newspaper stories, the | trial judge assisted in the preservation .of. the record by making a ruling which was tantamount to a ‘taking of judi-- cial notice. He ‘said: ' .In view of the fact that. there are miatioinen: from the various news media here today, represent- ing television, radio and newspapers, the court can. generally assume that the radio and television out- lets have made broadcasts of general news items con- cerning this matter.” [See Special Exhibits 1-42, Id. and Reporter’ s Transcript 1.23] . Among the excerpts from stories then offered for the trial _ judge’s —— labeled Exhibit 1 in. — of: the stories as follows: 8 motion (and now lodged with this Court), were the follow- (1) When WOLDEN surrendered at the Hall of Justice after "., his original Indictment, the San Francisco Chronicle pictured him on its front page standing behind bars; the same picture _ found repetition throughout the country over wire services, etc. Television releases depicted WOLDEN’s plea of not guilty as ludicrous; an end-of-the-year show upon Channel 5 pre- sented a prosecution story without any hint that WOLDEN. might possess a defense, climaxed by a picture of his sub- mitting to the fingerprinting process.’ See Special Exhibits, : noted supra, Reporter’s Transcript 1-24 et seq. QA widely read columnist, MR. DICK NGLAN: of the San” Francisco Examiner, wrote. the following: . [See Reporter’ s Transcript 1. 18 et seq. ) “Isn’t it a scandal the way the WOLDEN case has been continued? Wasn’t it so very. nice that the trial judge ‘was so courteous to MR. WOLDEN that: he gave’ him a long continuance merely. because (his - counsel) happened to be engaged in another trial. What is the matter with the’ courage of our judges? Not one Idcal judge had the nerve to take the case, aa | said that they knew MR. WOLDEN.” © (Certainly the intended effect of the material last sina ‘was to test the mettle of prospective jurors and to remind | them that they must be crusaders, etc., because otherwise _ all officialdom was pert of a me to whitewash MR: WOL- DEN.) * * (3) Newspapers of July 14, 1965, showed headlines and “5. Taxpayer's Gripes ' Wolden Suspends Top*Aide Here ’ Tax Assessor's Aides on Private Payroll Apidiieane wos indicted twice: the second indictment, upon which he was actually tried, has the addition of Count Elevenas well as the op cat ape saan eae . picture with story asfollows;: ss = ror A Tax on SF Assessments : . SF Tax Roll — . 7 County Assessment Probe On [See Reporter’ 5 —", B| 24) (4) Newspapers of July 24, 1965 contained: headlines arid stories bearing the following titles: Big Tax Scandal . Is Getting Bigger Pay-off Probe in 7 Counties Strange Odyssey of the Files According to Tooke Renard Prosecutor D.A. Goes To See Wolden Prosecutor Wages Fight To Open Tax Quiz Files Want To See Pay-off Clues [See Reporter’ s Transcript 1.24] (5) Newspapers of July 25, 1965 contained headlines and —— ~ Wolden Is Accused of Taking Tex fue Bribe Campaign Gifts To Tax Assessors Tax Scandal Grows, May fnvolve Millions - How Tax’ Scandal Was- Discovered [See Reporter’s Transcript 1.24-1,25] (6) The same. San Francisco Examiner columnist, DICK ~ NOLAN, wrote columns devoted to WOLDEN’s troubles on July 26, 28 and 29, 1965, under the following avnmeennas More on Taxes, Wolden ‘sMethod | Wolden Whimsy, Tax -Grievance é Notes on Wolden, Help from Los Angeles , The Tax Inquiries, Big Question: . ‘ A Cynical Tax Gimmick © _o [See Reporter's Transcript 1. 24) | (7) Newspapers of July 27-28, 1965 carried headlines: | (with stories) stating: Ss pasts Wendie: Hainsitit tm Tate Cone’ Ferdon Vows Long Full Assessor Probe D.A. Eyes Wolden Files Grand Jury Summons Wolden in Tax Case - - + Wolden Still Not In as D.A. Waits __-D.A. Acts To Get Files in Tax Scandals Tax vs. Loquacious Assessor —=C [See Reporter’s Transcript 1.25] (8) The July 28, 1965 papers also contained, other than — "on the front page, a story about “Wolden’s Lush Bay Es- - tate” topped by a photograph of property owned by the Assessor on the Peninsula and carrying _— of lavish par- ties, late hours, high living. . [See Reporter’s Transcript 1 25] (9) On July 29, 1965, the newspaper headlines and Stories began with: 7 ___- Attorney Tells D.A. Wolden Paid Off LA Assessor Rips Wolden ’ Wolden Job Depends on Jury Wolden Should Step Aside . the last being a San Francisco Examiner editorial. [See Reporter’s Transcript 1.25-1. 26] (10) In relation to the balance of July, the court was ' -shown the following newspaper headlines (followed by stories): _ Lynch Starts Big Scale Probe of Tax Scandal Tax Scandal, 1RS Demands Peek at Files Tax Files Given to Prosecutors Lynch Tax Scandal Probe Woilden Brags on San Francisco Assessing Will Wolden Take the Fifth? - : _ Wolden’s Top Aide Says He Passed Along Fees Tax Scandal Files Ordered Released Secret Records in Tax Scandal Open for D.A. [See Reporter’s Transcript | 26). 27) (11) The tempo of such news stories and their promi-— nence as matters of public interest continued without abdte- . ment through August up to September 3, the day ‘of the | Ir Indictment. “ Rejeasalabies headlines and stories, culled from the same exhibit, are: : , * Wolden Grand Jury Together Four. Minutes : - | bo Ferdon Gets the Files in Tax Sena a meee _ An Assessor Now and Then" oS aS, ‘mentioned informed the public that | z was guilty of absenteeism, etc.) © \ ae eae ‘A Number of New Checks Traced in pasiains’s Sein Wolden Refuses To Open Records _ ; Rae ‘Wolden May Have To Talk SOS on Tax Probe : ° “> ‘Taxpayers’ Suit and the DA - ne _ May. Make Wolden Talk - ’ State Failure i in Assessor Scandals Mystery Woman in Tax Probe DA Plans Move on Wolden ’ Special Boot Camp for Assessor Scandal Probers. (This last was in reference to the intensive training on assessment law offered interested California prosecutors in relation to an. inflexible 25% assessment ratio, etc. 2 . DA Probes’ Spending by Wolden, Wife : Wolden May Yivld Files . ee. Contempt, Order Filed on Wolden eae Sa . Jury Can See Wolden Files in Tax Probes (12) When WOLDEN surrendered on the afternooti of his . Indictment, September 3,-and submitted himself to the reg-. ‘ ular processes of fingerprinting, etc., pictures of him behind - what appeared to be the bars of a prison were released for. reproduction throughout the United States. These pictures | are reproduced. herein in this petition. Between the middle of September and the follow-up stories on the Indictment. Lae and the end of the year, one may scarcely find consecutive o days during which RUSSELL L. WOLDEN was not } Eromt page _ material. Some of these were:. ‘ , Soe “Wolden Old Hand at Facing Storms: v re Sei. Assessor's Long and Profitable Career . - - pT weer ob SAM FRANCISCO CHRONICLE - - i ij ee Lc ills Tooke in Tax ai: _ Missing Wolden Files Smuggiéd to DA's Safe Wolden Files on Tooke Clients Are Missing Wolden Gets Judge's Deadline Wolden OK for any San Francisco Trial Judge _ DA Says Wolden ts Holding Out Angry Reply in Assessor's Tax Scandal Astonishing Code in Assessed Value et ' It’s'No Crime to bribe an Assessor in California, it just looks bad [See. Reporter’ s Transcript 1 30-1 31] (13) A local headline was entitled “ Assessor Gets a Rolls. Royce”. It was only by reading the entire story that the reader might discover the subject to be a different : assessor than MR. WOLDEN. . (14) By December a new ss cualiandiek had developed. ‘Here . ' One may find stories discussing the general subject that the City and County had lost money which ought to be recov- ered. Typical were: Recover Lost Taxes-in Sen: Francisco Neng! A Threat on Funds Lost by Wolden Assessments, a Threat of Action {See Reporter’s Transcript 1.31-1 32) (15) Other matters which touched upon issues ultimately presented to:the trial jury were also discussed in advance by the newspapers, without any attempts to diminish the heise that the accusations were frre ag proved. Of this ilk were: . _ dary Told How Woden Got Pat Apartment - Wolden Is Indicted Again Clean House ; _ Demos Hit in New Tax Scandal Oui mae nh’ x. * eileen: —— Sales Price and Assessment Com | Grand Jury Airs Wolden’s $38,500 Apartment Deals Wolden’s. Bank Ties wet [See Reporter’s Transcript ] 35-1 36] Such headlines and stories were interspersed with. other matters of reportorial moment, viz: How WOLDEN’s bank accounts were subpoenaed, how the Grand Jury was con- tinuing its investigation, how WOLDEN received thousands - of dollars in campaign contributions, how it was difficult” to obtain a willing trial judge... oro A [See Reporter’ s Transcript 1.35-1.36] : (16): O e week before the trial, the same San Francisco | Examiner writer, DICK NOLAN (whose interest extended re- cently. to writing a column on’the length of time consumed in the preparation of the present appeal) wrote a column entitled “A Scandal in San Francisco" 5 eens the fol- lowing excerpts: ee tenia [See Reporter’ s Transcript 1.32 et sea. ] “The scandal within a scandal in the great assess- ment scandal is the tolerance, official, semi-official, - and just plain public.with which San Francisco is viewing the proceedings. Russell L. Wolden is under indictment charged with taking bribes for handing out tax breaks for the favored. One would expect -somé show of alacrity on the part of the commu- nity dealing with such a situation, yet the matter drags on in-an appalling way. Shall we review: . “Wolden is indicted, and all public officials, in- cluding our Honorable Judges, run for cover. After: some preliminary time wasting we have to import a retired Judge from another courity to hear the . case, our guys want no part of it. Then it develops __ that Wolden’s lawyer has another case which (why?) must be given precedence over the Wolden trial.. The Court graciously grants a long postponement. “Somebody asked Mayor Shelley, ‘Why. should } an indicted, Assessor stay on the public payroll while he is awaiting yas _— process of justice’ and bee ’ ° + ‘- ee an Shelley mumbles’ jachaettling and the indicted Asses. _ sor keeps on drawing his pay. For months, the Board of Supervisors, which is charged with the duty of overseeing taxes and assessments (it’s our Board of,- you should pardon the expression, Equali- + y 4 tation) carefully looks out the window. —Assessment scandal, there’s no assessment scan- dal; who, what, where? > | “But this is Assessor Russell: | Hi Wolden of the ‘ - dynasty Woldens, grantor of favors to many of the. mighty, if the charges contained in the indictment. “% are to be credited as anytfiing more than frothy gos- © sip. For i icing on the cake, Wolden announces that - he is a candidate for re-election, confidently pre- dicts he’ll get re-elected and City Hall — wouldn’t | bet you otherwise. *« . ° “Wolden’s deft and sardonic soninis is such that . it scares everybody who might be thinking of run- ning for the job of Assessor, except Supervisor Jack Morrison, who is making mild noises like a .candi- date, not too loudly, not in any spirit of public in- . . dignation, sort of ‘in case’ ‘candidacy. “The whole sorry affair is shot through with novo-. caine. Everybody about it is a little numb as befits the public conscience as represented by numb Judges. “+, * . numb officials, and a long. benumbed electorate.” (17) Tn bil that has been suggested above, the news stories were abetted by the voices of radio newscasters and the visual glimpses of public events as released through televi- sion. The San Francisco Chronicle : ly ‘allowed the story to disappear for so long an interval as a day; the Ex- ', aminer, wilile less persistent, unleashed MR. DICK NOLAN in 3 instances beyond those: which have been quoted. | ‘AM efforts to secure a continuance of the trial because -of this pre-trial publicity were rejected by the trial judge, © . andthe jury trial commenced on schedule, resulting in pe- _ titioner’s convictions. On the appeal, the. as of Appeal below held 8 Opinion, App. P. 8, ndereaie a rag: : (PP te , “The record fails to show that pretrial publicity. in any way restricted the choice of fair and impar- hee ers > tial jurors, Our review convincés us that newspaper ~~ - , and other ‘publicity during trial would not, if known | to the jury, have-affected the result. Moreover, ‘ the trial court repeatedly admonished the jury not . he to read or listen to any reports relating to the trial.” * REASONS FOR GRANTING THE WRIT. _ 1. The decision: below raises important constitutional considerations as to whether a state criminal trial of a public official ghould be postponed until the- effectsof massive, e and prejudicial pre- trial publicity have teen n dissipated. , light of the Sixth Amendment and the Due Process Clause * and applied in Rideau v. Louisiana, 3,/3 U.S. 723, Estes v. Texas, 381 U.S. 532, and Sheppard v. Maxwell, 384 U.S. 333. Given the pervasive and overwhelming assault upon the petitioner in the public news media preceding the- trial, the constitutional inquiry imposed by those rulings is whether the petitioner was tried “in an atmosphere undis- turbed by so huge a wave of public passion.” Irvin v: Dowd, 366 U.S. 717, 728. And to provide an appropriate response to that inquiry in this case necessitates not, only an exami- nation of the facts but an exploration of several important aspects of the constitutional fair trial doctrine, an explora- , tion that merits the grant of certiorari. (a) Is an elected public official: like the etiticnier enti- tled to the same constitutional guarantee of.a fair trial as _ Was accorded the private citizens involved in Rideau, Estes =— -and Sheppard? Petitioner suggests that an affirmative an- - “ - " swer to that question is not only dictated by the equality implicit i in the concepts of .due Process: -and fair trial but is _ Made even more obvious by the necessity_of i insuring fair- ~ ness to the type of individual: who perhaps is most suscepti-. . I | SOEs o The critical and unayoidable eatticn cclned the de- | cision ‘below is whether petitioner’s conviction can stagd in * ' of the Fourteenth Amendment, particularly ‘as interpreted ~ fi oo 18 zy ble to public prejudice—the accused public official. And at a time ‘when numerous public officials are being charged with crimes, it is appropriate for this Court to underscore ‘the fact that such individuals share in the enone promise of a fair trial. . A negative answer to that nection might be implied from an assertion that the news media were here doing no more than exercising their First Amendment right to criti- - cise and comment on a public official. Cf. New York Times‘ v. Sullivan, 376 U.S. 254. But such an answer would raise a most serious collision between the constitutional right to . comment and the constitutional right to a fair trial. As ' yet, nothing that this Court has said would indicate that a defendant, whatever his office or station in life, somehow loses his right to a fair trial because the distillers of public ane are ore under the cloak of the First Amend- ment. e.(b), Does the fact that -the petitioner failed to seek a change of venue preclude application of the constitutional. fait trial ‘principle? The decision in Sheppard v. Maxvegll, 384 U.S. 333 at 363, would appear to provide the controlling ” _ answer to. that problem: “But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, « or transfer it to another wounty not -so permeated ve with publicity.” In other words, where. a defendant i is s confronted with a widespread and prejudicial atmosphere engendered by the . public press, he is not under a ‘constitutional mandate to seek a change of venue. As was held in Delaney v. United _ States, 199 F:2d 107, 116 (C.A. 1), such a defendant “is 2 Equally irrelevant is the claim of the prosecutor below that neither he nor his office was responsible for the foménting of any unfair news - releases or other prejudicial information. Reporter's Transcript 1.47, et seq: A free trial atmosphere is no less polluted by pervasive and prejudicial publicity simply because such publicity may not have em- . anated from the Aigner 3 office. Pe ——t —Qa-—~-- AO er ‘wherein the offénse is alleged to have been committed.” by Sheppard of having the case continued indefinitely “until . prejudice. The constitutional propriety of such a choice of ‘ abated, needs further implementation by this Comiti.;:6<- . 19 not obliged to. forego his constitutional right {under the Sixth: Amendment]. to an’ impartial trial in the district He.may, instead; pursue the alternative remedy suggested. the threat abates.”» That is what the petitioner here sought, particularly in view of the wideness of the pablicity that | made it impossible to find another California venue: free of remedies, and indeed the constitutional necessity of postpon-: ing. a trial in these ‘poriatienest -until the prejudice has - (c) Was the burden on the prosecution to prove that the massive pre-trial publicity had abated or. was non-prejudicial @ in nature? The nature of the widespread publicity. attend- . ant upon the charges against petitioner was plainly such as to poison and prejudice the public mind with respect to - pétitioner’s guilt. or innocence. The headlines and news accounts previously detailed had such an impact upon) the. * San Francisco public that it was scarcely possible to enter any gathering of local citizens without hearing the epithets ' “Crook” and “Robber” thrust upon the petitioner. The publicity, to put it mildly, was such that it would ordinai- . ily result in prejudice, and did in fact result in prejudice. Having. demonstrated the existence of such massive pre- _ ® trial prejudice, petitioner submits that, as a constitutional requirement, the burden shifted to the prosecution to prove . that the prejudice had either abated or was ineffective rela- tive to the particular jury and trial. The First Circuit inti- _ mated as much in Calo v. United States, 338 F.2d 793, 795, when it ruled in a similar situation that “this publicity was so massive and so timed that the defendant made a prima facie showing and the government should have been the one . to seek to establish that no juror had had these matters come to his attention.” See also Adjmi v. United States, 346 F.2d 654, 659 (C.A. 5).7 And stich a burden was not met through | The court in the Adjmi case ruled that “When diites the course of the trial counsel for the appellants brought to the court’s attention , eee the ruling of the court below (App. p. 8, infra) that “the .trial court repeatedly admonished the jury not: to read or ‘listen to any reports relating to the trial.” More than mere admonishments would be needed to assure the-erasure of the massive prejudicial impact of the publicity. ‘ It is important that this Court establish the authoritative guidelines respecting the burden of proof in-such situations. _And' the Court has the opportunity to do so here against : the backdrop of an extensive pre-trial campaign of public prejudice, seldom if ever equalled where a public official’s right to a fair trial is at stake. 2. The decision below raises -important constitutional ‘questions as to the propriety of the prosecution’s use of evidence unlawfully stolen from the owner. - As a general proposition, it is true that one who has no proprietary. or possessory interest in premises searched or property seized is not ‘in a position to claim that his rights ‘ . » wnder the Fourth Amendment Jhave been violated by an un- reasonable search and seizure. See, é-g., United States v. Eversole, 209 F.2d 766, 768 (C.A. 7). But the fact that the evidence used against this petitioner had been seized ‘ upon a search warrant directed toward an acknowledged thief faises quite different and important considerations under the Fourth Amendment, as well as the Due Process Clause of the Fourteenth Amendment. ” Had the state or county law enforcement officers ici: ' selves stolen the TOOKE records in this case and then used them to secure petitioner’s conviction, it would appear axio- - matic that the principles of the Fourth Amendment and of _- the Due Process Clause would have.been violated. And if that be true; how can the state authorities avoid the-appli- -cation of those principles if they knowingly rely upon the the prejudicial newspaper atcounts and moved for a mistrial; the court had a duty to inquire whether the articles had created prejudice in ; si iaenasrccaseitt iene ever me = x ? oe ‘ prior actions of a private burglar who stole the documents? _ Can the law enforcement officers, through the device of a __ Search warrant directed at the burglar, take advantage of © the corrupt fruits of a fortuitous or coincidental b Can a prosecuting agency, because of its j of the theft of documents, nevertheless adopt and exploit ‘the unlawful motives of the admitted thief? ‘ While the traditional indicia of some sort of proprietary interest in the seized property is usually a prerequisite to a Fourth Amendment claim, this Court in Jones v. United States, 362 U.S. 257, 266, indicated that “it is unnecessary and ill-advised to import into the law surrounding the con- -stitutional right to be free from unreasonable searches and. seizures subtle distinctions, developed and refined by. the ~common law in evolving the body of private property law . which, more than almost every other branch of law, has . been shaped by distinctions whose validity is-largely histor- ical.” And in the Jones case, itseif, this Court: recognized . the right of a person legitimately on the premises of.a friend to challenge the legality of a search of the premises where the fruits were proposed to be used against that person. There thus may be room within the Fourth Amendment for a defendant to challenge the use of evidence, of which — _ he-had no proprietary interest in the historical sense, obtained by a search whereby law enforcement officers have traded “‘the es€ape of a criminal whose rights are violated fe the conviction of others by the use of the evidence ille- gally obtained against them,” rey: v. Martin, 45 Cal.2d 455. ‘ On the other hand; this Court in Burdeau v. McDowell, 256 U.S. 465, held that the Fourth Amendment guarantees are not violated if federal prosecutors, to whom incriminat- , ing papers stolen by private persons have been delivered, retain them for use ‘in subsequent grand jury and trial pro- — _ ceedings. Unlawful acts of individuals in which the govern- _ ment has no part were said not to constitute governmental action for purposes of the Fourth Amendment. Mr. Justice | esi a is : 22. ‘Brandeis, joined. by “Mr. Justice Holmes; stronaly dissented — saci (256°U.S. at 477): - : “Still, I cannot believe that action of a public Of fi- cial is necessarily lawful because it does not violate . constitutional prohibitions, and because the same - " result might have been attained by other and proper _ ' means. At the foundation of our civil liberty: lies the principle which denies to government officials an exceptional position. before the law, and which subjec m to the same rules of conduct that are commands to the citizen. And in the development of our liberty insistence upon procedural regularity has been a large factor. Respect.for law will not be advanced by resort, in its enforcement, to means — -. which shock the comman man’ ’s sense vg Mevency and fair play.” It is questionabie whether the Burdeau ruling has survived the Court’s-later decisions in Elkins v. United States, 364. U.S. 206, and Mapp v. Ohio, 367 U. S. 643, though neither . a those decisions mentions Burdeau.* At least one state court judge has questioned whether Burdeau any longer “survives as a precedent compelling the admissiomof illegally . Obtained evidence .. . [and] Even if a vestige of its author- ity remained, -it was obliterated by Mapp.” Sackler v. Sack-. ae ler, 229 N.Y.S. 2d 61, 65-70 (Christ, J., dissenting). Moreover, in view of the expanded concepts of govern- ‘mental action, see Reitman v. Mulkey, 387 U.S. 369, and Burton v. Wilmington Parking Authority, 365 U.S. -715, it seems doubtful that the Burdeau notion’that governmental action was lacking in the prosecutor’s knowing use of doc- uments stolen by a private individual would any longer be : _ followed. And if the state officers may thus be said to have ' ‘beer ivvolved, for constitutional purposes, in the unlawful seizure of the documents, it may be that the time has come. 4 ur. Justice Frankfurter’s dissent in Elkins twice mentioned Mr. Justice Brandeis’ Burdeau dissent with seeming rain 364 U.S: at 235 and at 250. G. * - x. 7 rental , Peete 23 ? for this Court to emphasize, as the Ninth Circuit tecently did, that “the law is violated in Fourth Amendment cases . when the illegal search takes place. At that moment the - _ violation of the Constitution is complete. The fruits of the illegal search are rejected not because the Constitution ex- pressly requires it, but because it is inappropriate to sanc- tion the previous violations of law by federal [or state]. officers.” Brulay v. United States, 383 F. 2d 345, 349, fn. : 5°(C.A. 9). CONCLUSION “For these various reasons, a writ of certiorari should issue to review the judgment below. ps oe va Respectfully submitted, . eed JAMES MARTIN MacINNIS- 465 California: Street -= Francisco, California 94104 @ : EUGENE GRESSMAN 1730 K Street, N. W Washington, D. C. 20006 Counsel for Petitioner April 15, 1968 -"° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1411%3A1. Public record. Not legal advice.