Appendix — Wax v. Pate

APPENDIX A

In the

United States Court of Appeals

For the Seventh Cirruit © :

SEPTEMBER TERM, 1968 . January Session, 1969

No. 16675 o

Unitep States or America ex rel.| Appeal from the

Wu A. Wax, United ‘States Dis-

Petitioner-A ppellant, trict Court for the

g Northern District

, of Illinois, Eastern

Frank J. Pate, Warden, ete. ‘ Division.

Respondent-A ppellee. )

V.

March 31, 1969

Before Knocu, Senior Circuit Judge, and Kitey and

Famrcuitp, Circuit Judges. :

Kwnocu, Senior Circuit Judge. This appeal was taken

from denial of writ of habeas corpus in-the United States

District Court. The Appellate Court of Illinois, 4th Judi-

cial District, affirmed the conviction of Petitioner, William

A. Wax, for murder in People v. Waz, 75 Ill. App. 2d

163, 220 N.E. 2d 64). The-Illinois Supreme Court denied

leave to appeal, and the United States Supreme Court

denied certiorari, 1967, 387 U.S. 930.

Petitioner asserts that he was denied his right to

counsel at a critical stage of the prosecution when he «:

mac ~ App. 2

was examined by a psychiatrist prior to. ‘trial while in

custody of thé County Jail, without notice to his counsel

and in his counsel’s absence, by a psychiatrist who later

testified for the State that petitioner was sane. id

* At the trial petitioner’s sanity defense was contradicted

by the testimony of six lay witnesses and two psychia-

trists. The testimony of one, Dr. Gurse, was based on a

hypothetical question. The other, Dr. Smith, was asked

a hypothetical question too, but also evaluated the testi-

mony of the entire trial and his meeting with the petition-

er prior to trial. ° 4

The petitioner had been examined by his own init

trist, and Dr.. Smith -was asked to see him by the State’s

attorney. Although Dr. Smith told the petitioner he was

a doctor making an examination at the request of the

State’s attorney, petitioner merely looked at Dr. Smith’

when the latter asked his name and age. He nodded his

head when asked whether he had served in the armed

forces. After 20 minutes. of silence, petitioner asked for

his attorney When petitioner’s attorney Jarrived, Dr.

Smith told him he wished to examine petitioner with his.

permission only. The examination did not continue.

Petitioner himself made some use of this attempted

examination, when on cross-examination, counsel asked

Dr. Smith whether petitioner’s behavior at that interview

was not abnormal. Petitioner asserts that once this testi-

mony was elicited,’ his counse) had no recourse but to_

test it on cross-examination and that he was in no way

vouching for the credibility of the evidence as secured.

Petitioner distinguishes between the right to the pres-

ence of counsel which is denied, for example, toa grand

jury witness, and the assistance of counsel. He asserts

that counsel while not present at a psychiatric examina-

App. 3

tion might well arrange in advance for conduct of such

an examination in a proper manner under appropriate _

conditions. Petitioner points to the procedure suggested

in State v. Whitlow, 45 N.J. 3, 25-26, 210 A. 2d 763, 775,

as an example.

No objection was a to Dr. Smith’s testimony on

the ground now offered: that petitioner was denied as-

‘sistance of counsel. There was no motion to strike the:

‘ testimony. Nor did petitioner’s own retained counsel raise

this question in motion for new trial or arrest of judg-

ment. Petitioner points out that the issue was raised on

“ —— and is not raised — for the first time.

“We agree with the view expressed in the District

Judge’s carefully reasoned opinion that a psychiatric

examination requested{ by the prosecution and conducted

by a physician designated by the prosecution who- may

testify at the trial on the issue of insanity does not con-

stitute a ‘critical’? stage of the proceedings constitution-

ally requiring notice and presence of counsel, such as was ~

involved in the line-up in U.S. v. Wade, 1966, 388 US. |

218, or the arraignment in Hamilton v. Alabama, 1961,

368 U.S. 52, 55. :

It is not necessary-for counsel: to be present, but we

believe it is the better practice to give notice to counsel.

Absent a showing of actual prejudice which is mi ing

here, we conclude that failure ; to give notice did not

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit.

F

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: | App. +

-~S---. APPENDIX B

_ MEMORANDUM: OPINION ~

of Hon. A. L. Marovitz, United States District Judge

Petition for a Writ of Habeas Corpus |

William Wax, who was.sentenced to 20-35. years on a

murder conviction by the Cireuit Court of the Fifth

Judicial Circuit of Illinois, Edgar’ County, on January

27, 1965, seeks his release on a writ of habeas corpus. His

conviction was affirmed by the Appellate Court for the

Fourth District on September 26, 1966, in People v. Waz,

75 I. App. 2d 163, 220 N.E.2d 600. The Illinois Supreme

Court denied leave to appeal on January 18, 1967, and

the Supreme Court. of the United States denied certiorari

on May 29, 1967, at 387 U.S. 930.

The i issue urged here was asserted in all of the proceed-

ings below. In essence, petitioner alleges that he was de-

_Arived of his Sixth Amendment right to counsel, in that

he was examined by a-~psychiatrist prior to trial, at the

state’s request, without notice to his retained counsel

and in eounsel’s absence. The psychiatrist subsequently

testified at trial as a prosecution witness to the effect that

petitioner was sane at the time of the commission of the |

offense. Petitioner alleges that the time of the examina-

tion constituted a ‘‘critical stage’’ of the prosecution and

that the denial of counsel at that, point constitutes a vio-

lation of his right to effective Assistance of counsel.

we

The. right to effective assistance of counsel has been

_applied at stages of.- the prosecution where the Supreme

Court has consideréd denial of that: right® to vitiate the

accused’s guarantee of a fair trial. In Gideon v. Wain-

wright, 372 U.S. 335 (1963), the right to counsel was ap-

plied to the trial itself, and in Douglas v. California, 372 °

U.S. 353 (1953), to the appellate level.

App. 5

‘ ‘

These cases, and others,’ have construed the Sixth

Amendment guarantee to apply to the ‘‘critical’’ stages of

the prosecution. And most recently, in a provocative

trilogy. of cases, the Supreme Court required the’ exclu-

sion of identification evidence which was tainted by the

exhibition of the accused to identifying witnesses prior to

trial in the absence of counsel. United States v. Wade,

388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263

(1967); And see Stovall vy. Denno, 388 U.S. 293 (1967).

Those cases held, inter alia, that a post-indictment ‘line-

up’’ is a.critical stage of the prosecution, and condemned

the practice of exhibiting suspects singly to identifying

witnesses. Wade defined a “critical”? stage as, follows:

(at. 226) ‘

“It is central to that principle (right to. counsel)

‘that in addition to counsel’s presence at trial, the —

accused is guaranteed that he need not stand alone

~ against the State at any stage of the prosecution,

formal or informal, in court or out, where counsel’s

absence might.derogate from the accused’s right to a

fair trial,’’ .

As Mr. Justice Black put it in his concurring and dissent-

ing opinion ‘in Wade: (at 246) | 7

‘‘And I agree with the Court that.'a lineup is a

‘eritical stage’ of the criminal. proceedings against

an accused, because it is a stage af“Which the Govern-

ment makes use of his custody to obtain crucial evi-

dence against him.’’

: ’See Hamilton v. Alabama, 368 U.S. 52, 54 (1961) ; Escobedo

v. Iinois, 378 U.S. 478 °(1964) ; Miranda v. Arizona, 384 US.

436 (1966) ; Massiah v. United States, 377 U.S. 201 (1964) ; White

v. Maryland, 373 U.S. 59 .(1963.) ee

App.6 Se

< The narrow issue presentedaby this petition is whether

a psychiatrie examination requested by the prosecution

and conducted by a doctor of its designation, who testi-

fies ‘adversely to the defendant at trial on the issue of in-

- sanity, constitutes .a ‘‘eritical stage’’ of the prosecution

requiring notice to the presence of the defendant’s attor-

ney.

The parties are in virtual agreement that the facts

as set forth by the Appellate Court when it affirmed de-

fendant’s conviction, are essentially accurate. For that

reason, we did not deem it necessary to hold an eviden-

tiary hearing, and are prepared to, make our ruling on

the legal issues discussed in the briefs.

The facts of the occurrence, as related by the Appellate

Court at 75 Ill. App. 2d at 176-177, are these:

‘‘It is contended that this case must be reversed and

remanded for a new trial by reason of the nature of

an examination made of the defendant by Dr. Groves

Smith,,a psychiatrist acting at the request of the

State’s Attorney. This examination was made on

September 23rd -at the: jail in Paris. It will be re-

called that the first examination of Dr. Greenfield was

*. on September 19th. The only evidence upon this ex- —

amination was elicited from Dr.“Smith upon cross-

examination. He stated that he’ called at the jail

and that he saw the defendant and asked his name.

' Dr. Smith identified himself as a doctor making an

examination at-the request of..the State’s Attorney.

Following such introduction, it appears that the de-

fendant and the doctor had no conversation, but that

for about 20 minutes there was silence and presuthably,

~ mutual .observation. Dr. Smith then asked the de-

fendant if he had ever been in the Army, Navy or.

Marine Corps, and said that the defendant shook his

head to signify no.There followed another interval

> %

App. 7

) ° |

of silence and then the defendant asked to have the

sheriff get his attorney. Dr. Smith testified that he

stated that he would be. glad to ha®e the attorney .;

present, and the latter arrived shortly.. He testified

that he told the attorney that he wished to examine.

the defendant with his permission, but that no fur- oe

ther examination was conducted after -such conversa-

tion: It appeared that the defendant stood mute.’?’

As in the instant petition, Wax made no claim before

the Appellate Court that his Fifth Amendment privilege

against self-incrimination has been violated. The Appel-

late Court nevertheless stated its belief ‘‘that the presence .

or absence of the element of self-incrimination is a key

factor in the resolution. of this preposition.” (75 Ill.App.

2d at 177) : 6

The*Court went on.to determine the issue within. the

framework of a Fifth Amendment analysis, rather than

squarely addressing itself to the Sixth Amendment. ground

asserted by the petitioner. In denying relief, the Court

relied on Schmerber v. California, 384 U:S. (1966).

Schmerber held that the defendant’s Fifth» Amendment .

privilege was in no way violated by the prosecution’s use

at trial of evidence of a blood sample taken involuntarily

from defendant. Hence Schmerber was not entitled to

claim the privilege against self-incrimination,- which ap-

plies only to ‘‘évidence of a testimonial or communicative

nature,’’ apd the Supreme Court held there to be no issue

of denial‘of counsel with respect to any rights which he

did possess. - - = ; | e

The Appellate Court regarded the instant right to

counsel argument as governed by the same principles used

in Schmerber. It stated: (at 179-180)

‘It appears, therefore, under the authorities that

| the occasion’ when Dr. Smith and the defendant mu-

Apps &

tually obs served one another prior. to the arriving of

defendant’s counsel, there was, in fact, no testimonial

, compulsion as to inculpating matters... There being

no..valid question of constitutional dimensions ‘upon

the issue of self-incrimination, we believe that the

issue raised as to the deprivation of the. benefit of

counsel is controlled by Schmerber v. California...

Here, as in Schmerber, no issue of counsel’s ability

to assist in Susst of any right. which: he did possess

was presented ...’’ -° 2 ial

The Wade. trilogy was decided on June 12, 1967, sub-

sequent by 14 days to the date the United States Supreme

Court denied certiorari in the instant case. In Wade,

the court observed that compelling a defendant merely

to exhibit his person for observation by a prosecution

witness prior to trial involves no issue 0 testimonial com-

pulsign which could raise an issue of self-incrimination °

in violation of the Fifth Amendment privilege. However,

the Court significantly went'on to explore the Sixth

Amendment right t counsel argument upon which it ren- -

dered ste india hold: The explanation of the rea-

son that issue was significant in Wade,.and nof of conse-

quence. in Schmexber, is of decisive importance to the

- seope of our deliberations herein. The ‘Court asserted :

—__(388 U.S. at 223-224) . ba

“The fact thatthe linéyp involved no violation of

Wade’s privilege against self-incrimination does not,

however, dispose of his‘contention that the courtroom

* identifications should have been, excluded because the

lineup was conducted without notice to and in the

absence of his counsel. * Our rejection of the right

s to counsel claim in Schmerber, rested ‘on our conclu-

. sion in that case that ‘(n)o issue of counsel’s ability

to assist ‘petitioner in respect of any rights he did . -

possess is ‘presented.’ 384 U.S. 766. In contrast, in- .

this case it is urged that the assistance of counsel at

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¥ “App. 9

the lineupewas indispensable to protect Wade’s most

‘basie right as a criminal defendant—his. right to a

fair trial at which ‘the witnesses against him might

be meaningfully cross-examined.’? °-° . |

_ It immediately becomes apparent that the instant. peti-

. tioner is not challenging his* conviction because it ested

upon some form. of ‘‘testimonial compulsion,’’ as the Ap-

pellate Court seemed to believe he was and as Schmerber

did, but because the lack of:notice to his counsel alleged-

ly deprived counsel of the opportunity to consult with his

client and perhaps with his own medical expért as well,

and to,suggest to tha court proper procedures or condi-

tions for conducting the examination” _ In Wade, the

“Supreme Court distinguished a lineup from the. merely

: preparatory steps in the gathering of the prosecution’s

evidence, such as ‘‘systematized. or scientific analyzing of

the accused fingerprints, blood sample, dothine. hair, and

- the like.¥ (at 227). The Court’s justification was as fol-

lows: (at 227-228) Aen

a

‘“We think there are differences which preclude such’ *

stages being characterized as critical stages at which

the aceused has the right to the presence ofshis coun-

sel. Knowledge.of-the techniques of science and tech-

nology is sufficiently available, and the variables in

+ techniques few.enough, that the accused has the op-

ortunity for a meaningful confrontation of the Gov--

ernment ’g case at trial through the ordinary processes

of cross-examination of the Government’s expert wit-

nesses and the presentation of, the evidence of his

own experts. The denial of a right to-hdve his ceun-

0 ‘ o* : sy’ pant ee a i .

? Petitioner does not explicitly argite:that fe lack of notice

and his counsel’s absence from the meeting>With Dr. Smith de-

prived him. of th opportunity to eonduct‘meaningful” eross-

examination at trial. ine {ix tas

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sel present at such gnalyses does yot therefore vio-

late the Sixth Amendment; they are not eritical_stages

since there is minimal risk that his gounsel’s absence ~

at such stages might derogate from his right to a°

j a,

airgirial. oer 4 5s an

The petitioner urges tha} unlike tlte aforementioned:

preparatory evidentiary steps, ‘and, like a lineup, a psy-

chiatric observation or examinatign constitutes .a ‘critical

tage’’- of “the proceedings. He urges in his brief: (at

nya there) eee, % ; “is de

“We beHeve “the court oft. ude Seticial’ notice of

thésfact that a psychiatyie ésamination bears little re-

semblance to, a tést if which” blood is drawn, mixed

with ch micals, after-whicli a’ reaction is noted by the

technician. Psychiatric examipations do not partake

of such easy evaluation. ‘Therefore, the giving of

notice to counsel. to ¢nable. him to’consult with peti-

tioner and with his own expert so that he may sug-

- gest to the court the proper ‘procedures, would seem ’

; to be required by concepts of fundamental fairness, .

as, well as the explicit right to counsel contained in

_»the Sixth Amendment.”’ :

It is an ac@epted fact of which-the Court will “a “iis

‘that the results of psychiatric observations and examina-

tions are often a good bit more conjectural, than the re-

sults. of scientific. laboratory tests on fimgerprints,

blood samples, hair and the like. The variables in tech-

nique are many. And indeed, considerable ferment: has

heen engendered as to the sufficiency of the present legal

tests of insanitye.,

We would consequently agree that Wax raises an issue

at least ‘‘colorable,’’ so that we should consider his Sixth”

Amendment argument in the same framework as did the .

Supreme Court in Wade—that is, deterrnining whether he

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App. ll

was denied effective asSistance of counsel at 'a<‘‘critical’?

stage of the proceedings—rather than rejecting it on

Fifth Amendment grounds as did the Appellate Court

‘herein on the basis of Schmerber.’ In fairness, it should

again be noted that the Appellate Court acted prior to the

decision in Wade. 7

However, we-are impelled to the conclusion that a psy-

chiatric Wid bnkevod or examination, as described herein,

does not constitute a ‘‘critical”’ stage of the proceédings,

constitutionally requiring notice and the presence of coun-

Sel, and automatically vitiating Wax’s* convictiqn. Al-

«though, ‘‘the procedure followed by the State’s Attorney

was possibly not the most desirable,” as the Appellate

Court stated, we do not believe it was unconstitutionally —

defective, unless petitioner can show some positive preju-

dice. Hamilton v. Alabama, 368 U.S. 52, 55 (1961); Madi-

son v. Tahash, 249 F.Supp. ‘800 (D. Minn. 1966).

The considerations which prompted the holding in Wade

‘are not present here and indeed have not been urged by

petitioner. In determining what constitutes a “critical”

“stage of the proceedings, the Supreme Court is chiefly con-

erned that the absence of counsel does not derogate from

~ the defendant’s right to a fair trial. The ‘‘identification”’

cases presénted a situation “‘peeuliarjy riddled with in-

numerable dangers and variable factors which might seri-

ously, tven crucially, derogate from a fair trial.’’ (at 228)

.* ; :

The chief danger described by the Court in Wade was

the high ‘‘degree gf suggestion inherent in the manner

in.which the prosecution presents the suspect to witnesses

— @ > . . ; © °

for pretritel identification.’’ Numerous examples were

- , cited of instances where the suggestive influences utilized

-“* upon identification witnesses were all but certain to result

in positive identifications. The Court said: (at 999)

7.

App. 12

. Suggestion can be created intentionally or un-

intentionally | in many subtle ways. And the dangers

for the suspect are particularly grave when the wit-

ness’' opportunity for observations was insubstan-

tial, and thus his susceptibility to suggestion the great-

est. -‘‘ Moreover, ‘(i)t is a matter of common experi-

’ ence that, once a witness has picked out the accused

‘at the line-up, he is not likely to go back on his word

later on, so that in practice the issue of identity may

(in the absence of other relevant evidence) for all

practical purposes be determined there and then, be-

_ fore the trial.’ ’’ quoting from Williams & Hammel-

-* mann, Identification _— Part I, (1963), Crim.

; L. Rev. 479, 482. ; ?

In view of the dangers of inilaiiled inherent in a con-

frontation between the accused and the victim of witnesses

to a crime, the court felt that the presence of counsel might

avert prejudice and assure,a meaningful confrontation at

trial through counsel’s increased awareness of the facts

of the pretrial identification, and consequent ability to

meaningfully cross-examine the witness. The following

quotations from the Wade opinion. give significant insights

into the reasons for the Court’s conclusions:

‘*. . . In any event neither witnesses nor inekp par-

ticipants are apt to be alert for conditions prejudicial

to the suspect. And if they were, it would likely be

of scant benefit to the suspect since neither witnesses

non lineup participants are likely to be schooled in the

. detection of suggestive influences. Improper influ-

a

‘ ences may go undetected by a suspect, guilty or not. ’

who experiences the emotional tension which we might

expect in one being confronted with potential accus-

‘ers. Even when he does observe abuse, if he has a

criminal record he may be reluctant to take the stand

and open up the admissions of prior convictions. More-

over, any protestations by the suspect of the fairness

of the lineup made at trial are likely to be in vain;

: App. 13 -

the jury’s choice is between the accused’s unsupported

version and that of the police officers present: In

short, the accused inability to reconstruct at trial any

unfairness that oceurred at the lineup may deprive

him of .his only: opportunity meaningfully to attack

‘the credibility of witness’ courtroom identification.”

(230-232) } :

“Insofar as the accused’s conviction may rest on

a courtroom identification, in fact the fruit of a sus.

pect pretrial identification, which the accused is help-

less to sithbject to effective scrutiny at trial, the ac-

cused is deprived of that right of cross-examination

which is an essential safeguard to his right to con-

front the witnesses against hity. Pointer v. Texas, 380

U.S. 400. rAnd evén though cross-examination is

precious safeguard to a fair trial, it cannot be viewed

as an absolute assuraneo of accuracy and reliability.

‘Thus in the present context, where so many

variables and pitfalls exist, the first line of defense

must be the prevention of unfairness and the lessen-

ing of the hazards of eyewitness identificatiof® at the

lineup itself. Thé trial which might determine the

accused’s fate may well not be that in the courtroom

but that at the pretrial confrontation, which the State

ajigned against the accused, the witness the sole jury,

and the accused unprotécted against the overreaching,

intentional or unintentional, and with little or no ef-

fective appeal from the judgment there rendered by

the witness—‘ that’s the man.’ ’’ (235-236)

In the instant situation, the dangers of suggestion relied

upon in Walle are totally absent. Although techniques

to ascertain the defendant’s mental status may vary de-

“pending upon thet examining psychiatrist, in no examina.

tion conducted under recognized medical standards should

there be a danger that ‘‘the trial which might determine ©

_ the accused’s fate may well not be that in the courtrogm,

but that at the pre-trial confrontation. . .”’ In sum, the

dangers of overreaching which are inherently present in

>

App. 14

identification situations, are inherently lacking at pre-

trial psychiatric observations or examinations. Although

the better practice, as recognized by the Rules of the IIli-

- nois Supreme Court and Rule 35 of the Federal Rules of

Civil Procedures is to require a court order before sub-

jecting a party to a physical or mental examination, no

constitutional concerns of right to counsel are as pressing

in this regard as they are to lineups or other identifica-

tfon situations. | a |

In addition, unlike the identification cases, counsel’s

right to conduct effective cross-examination should no

hindered by his absence at the pre-trial examination. Wha

ever risk there might be by the absence of counsel from

the examination is minimal at most, and in our judg-

ment, does not derogate from the accused’s right to a ~—

fair trial. Indeed, petitioner does not raise the argu-

ment that this counsel will be able to conduct a less effec-

tive cross-examination. if absent from the —

psychiatric examination. -

If an insanity plea is to be raised at trial, defense coun-

sel will routinely conduct his own pre-trial psychiatric

examination, and present his own expert witnesses at trial.

The jury will then be compelled to evaluate the relative

credibility of the experts, based in part upon their testi-

mony on cross-exaiination.

_ Hence, the other major argument relied upon in Wade—

that counsel can éonduct ‘more effective cross-examination

if present at a lineup—is also lacking in the instant situa-

tion.

It is ¢rue that former Rule 17-1 and present Rule 215

of the Illinois Supreme Court, contain requirements of no-

tice. But it is equally true that neither provides for the

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App. 15 ,

Ppresence.of counsel. Nor do the guidelines laid down in

State v.. Whitlow, 45 N.J. 3, 210 A. 2d 763 (1965), cited .

by defendant, provide for the presence of counsel at a

pre-trial physical or mental examination. In our judg-

ment, lack of notice in these situations goes only to the de-

gree of actual prejudice suffered by the defendant, rather

than constituting an argument in support of petitioner’s

contention that the psychiatric examination was a ‘criti-

cal’ stage of this proceeding. Cf.-People v. Lang, 37 Ill. 2

7 (1967). :

Defendant’s argument that he could have consulted his

lawyer and his lawyer, an expert, does not amount to the

kind of inherent danger recognized. in the lineup cases.

We think those arguments too, might have merit only where

the defendant makes a slfwing of actual prejudice, and

cannot‘ be extended ‘to create an additional stage of. the

“proceedings said to be “critical.”

Since none of the constitutional deficiencies said to be

inherent wheré a defendant lacks counsel at a lineup ap-

pear to be inherent where he lacks counsel. at a- pre-trial

psychiatric: examination, we conclude that the ‘critical

stage’’ rationale of United States v.. Wade has no applica-

tion to such an examination.* ' :

3 We need not consider the additional practical problems

raised where a defendant is institutionalized in a mental hospital

or if. facility, for a short period of examination. The prognosis

in such situations, is often made as much on the basis: of mere

observations, as was done here, as it is based on actual psychiatric

examination. Would petitioner require his attorney to be present

throughout the period of-confinement, or only at the times he

~ was being observed, or only at the time of actual examinations?

The practical problems of an all encompassing constitutional

mandate based on Wade, as applied to’ this issue; are apparent.

App. 16

3

There may well be situations where the manner in which

a pre-trial psychiatric or physical examination is con-

ducted in the absence of counsel, may prejudice the defen-

dant’s right to a fair trial. Those should be dealt with as

_, they occur, and if.actual prejudice is shown, a new trial

‘ should be granted. All we are saying here is that the

same dangers to a fair trial which exist in the’case of a

lineup where ¢ounsel is not present, are not in the pic-

ture in the case of a pre-trial examination in the absence

- of counsel. "4 .

Absent a showing that the procedure utilized in the in-

stant case resulted in actual prejudice to petitioner which

denied him due process as guaranteed by the Fourteenth

Amendment, we must deny his petition for habeas corpus.

It is manifest that no actual prejudice has been shown

herein. No arguments have been made on this ground by

petitioner, so that the following language of the Appel-

late Court must be recognized as dispositive: (75 Ill.App.

2d at 181).

‘« .. (W)e cannot, in the exercise of judgment upon

the whole course of proceedings, conclude that there

was an actual deprivation of ‘defendant’s constitu-

tional rights, nor any offense to canons of decency,

fairness, and conscience A juéement will not be re-

versed because of absence of counsel where there

is no possibility of prejugice to the defendant. People

v. Taylor, 32 Ill.2d 165,°204 N.E. 2d 734; Walton v.

United States, 202 F. 2d 18.’. The pétition for a writ

of habeas corpus is denied.’’ iets

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