Petition for Writ of Certiorari — Waters v. Bensinger

In the

Supreme Court of the United States

Ocroser Term, 1973

UNITED STATES OF AMERICA, ex rel.

GILBERT WATERS AND HENRY WATERS,

Petitioners,

vs.

PETER BENSINGER, Director of Corrections,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

JULIUS LUCIUS ECHELES

CAROLYN JAFFE

35 E. Wacker Drive

Chicago, Illinois 60601

Attorneys for Petitioners

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

Nov3-1564| “*#™

JR.0

INDEX

PAGE

Order below

Jurisdiction

Questions presented

Constitutional provisions involved

Issues presented

Statement of the case

Reasons for granting the writ

1. Petitioners were denied their right to a fair trial

guaranteed by the Fourteenth Amendment to the

United States Constitution when the State Trial

Court refused to instruct the jury as to the law

applicable to their defense of alibi, since due proc-

ess of law requires that the jury be instructed as

to defendants’ theory of the case. The District

Court and Court of Appeals erroneously concluded

to the contrary 5

2. The State Appellate Court’s decision affirming

petitioners’ convictions depended upon giving

retroactive effect to People v. Poe, 48 Ill. 2d 506,

272 N.E. 2d 28 (1971), decided after petitioners’

trial; this deprived petitioners of their funda-

mental right, secured by Fourteenth Amendment

due process of law, to have their cases decided

under controlling law in existence at the time of

their trial 15

oo wo wwne wo

ii

PAGE

3. The District Court and the Court of Appeals used

an improper standard to justify affirmance.

Rather than determining for itself (as it should

have) that under applicable analogous authorities

petitioners’ claim does indeed rise to due process

proportions, because no controlling authority

specifically so ‘ated each court chose not to recog-

nize such rig.., and indulged in the luxury of

declining to dictate its views to the state courts for

the purported reason that petitioners’ claim did

not rise to due process proportions. In the ex-

ercise of its supervisory power, this Court should

review the decision so as to encourage the federal

courts to recognize legitimate due process claims

as such on habeas corpus petitions although no |

controlling authority may at the time so require .._ 19

Conclusion ..........---- 99

Appendix—Order ... App. 1

AUTHORITIES CITED

Cases

Calderon v. United States, 279 Fed. 556 (5 Cir. 1922). 6

Cool v. United States, 409 U.S. 100, 34 L.Ed.2d 335

( = 14

Cupp v. Naughten, —— U.S. ——, 38 L.Ed.2d 368

eR 3, 10, 22

Cutshall v. Tollett, 318 F. Supp. 1330 (E.D. Tenn. 1970) 18

Desist v. Uni*- * States, 394 U.S. 244, 22 L.Ed.2d 248

‘ee 18

Escobedo v. Illinois, 378 U.S. 436, 16 L.Ed.2d 694

| li

—

PAGE

Puller v. Alaska, 393 U.S. 80, 21 L.Ed.2d 212 (1968) .. 17

Gelpeke v. Dubuque, 1 Wall. 175, 17 L.Ed. 520 (1864) .. 18

Goodall v. United States, 180 F.2d 397 (D.C. Cir. 1950) 10

Halliday v. United States, 394 U.S. 831, 23 L.Ed.2d

16 (1969) 18

Higgins v. Wainwright, 424 F.2d 177 (5 Cir. 1970) ..... 12

Holt v. Virginia, 381 U.S. 131, 14 L.Ed.2d 290 (1965) .. 5,

15, 21

In re Winship, 397 U.S. 358, 25 L.Ed.2d 368 (1970) ..3, 21, 22

Johnson v. Bennett, 414 F.2d 50 (8 Cir. 1959) .......... 12

Johnson v. New Jersey, 384 U.S. 719, 16 L.Ed.2d 882

(1966) 17

Kaiser v. New York, 394 U.S. 280, 22 L.Ed.2d 274

(1969) 18

Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576

(1967) sesescnnnnnnnnnnnnnnnn 18

Lee v. Florida, 392 U. s, 378, 20 L.Ed.2d 1166 (1968) 17

Linkletter v. Walker, 381 U.S. 618, 14 L.Ed.2d 601

(1965) 17

Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081 (1961) .... 17

Mathis v. Caldwell, 455 F.2d 979 (5 Cir. 1972) ........ 12

McCarthy v. United States, 394 U.S. 459, 22 L.Ed.2d

418 (1969) 18

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694

(1966) 17

Mullaney v. Wilbur, —— U.S. ——, 39 L.Ed.2d 96

(1974) 6

iv

Naughten v. Cupp, 476 F.2d 845 (9 Cir. 1973) _..........

People v. Collins, 49 Ill.2d 179, 274 N.E.2d 77 (1971) ....8, 16

People v. Lefler, 38 Ill.2d 216, 230 N.E.2d 827 (1967) .8 16

People v. Matter, 371 Ill. 33, 20 N.E.2d 600 (1939) ....... 8,16

People v. Morris, 90 Ill.App.2d 208, 234 N.E.2d 52 (1

Dist. 1967) 8,16

People v. Poe, 48 Ill.2d 506, 272 N.E.2d 28 (1971) ......4,7, 15

People v. Routt, 100 Ill. App.2d 388, 241 N.E.2d 206

(4 Dist. 1968) 8, 16

People v. Scott, 401 Ill. 80, 81 N.E.2d 426 (1948) .....8,15

Screws v. United States, 325 U.S. 91, 89 L.Ed.2d 1495

(1945) 13

Shepherd v. Nelson, 432 F.2d 1045 (9 Cir. 1970) ...... 12

Smith v. Smith, 454 F.2d 572 (5 Cir. 1972) ............ 12, 13, 14

Snyder v. Massachusetts, 291 U.S. 97, 78 L.Ed. 674

(1934) 22

State v. Smith, 321 F.Supp. 482 (N.D. Ga. 1970) ...... 12

Stump v. Bennett, 398 F.2d 111 (8 Cir. 1968) .............. 12

United States v. Barrasso, 267 F.2d 908 (3 Cir. 1959)... 10

United States v. Grimes, 413 F.2d 1376 (7 Cir. 1969) .. 6

United States v. Marcus, 166 F.2d 497 (3 Cir. 1948)... 9

United States v. Phillips, 217 F.2d 435 (7 Cir. 1955) ....6, 11

United States ex rel. Powell v. Pennsylvania, 294 F.

Supp. 849 (E.D. Pa. 1968), appeal dismissed, 425

F.2d 367 (3 Cir. 1970) 11-12

Vv

Other Authorities

PAGE

American Heritage Dictionary of the English

Language 458 (3rd Printing 1970) 19

Black’s Law Dictionary 675 (4th ed. 1957) ................ 19

F.R.Cr.P. 11 18

Illinois Pattern Jury Instructions, Criminal, LP.I.

Crim. 24.05 11

LaBuy, Jury Instructions in Federal Criminal Cases,

sec. 5.01, at 25 (1965) 9

Mathes & Devitt, Federal Jury Practice and Instruc-

tions, sec. 8.27, at 110 (1965) . 9

Webster’s Seventh New Collegiate Dictionary 290

(1972)

ee

In the

Supreme Court of the United States

Ocroser TERM, 1973

No.

UNITED STATES OF AMERICA, ex rel.

GILBERT WATERS AND HENRY WATERS,

Petitioners,

vs.

PETER BENSINGER, Director of Corrections,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Petitioners, Gilbert Waters and Henry Waters, pray

that a writ of certiorari issue to review the judgment and

order of the United States Court of Appeals for the Sev-

enth Circuit entered in this case.

ORDER BELOW

The order of the United States Court of Appeals for

the Seventh Circuit, an ‘‘Unpublished Order’’ pursuant

to Cireuit Rule 28, is printed in the Appendix (App. 1) to

this petition. The opinion of the District Court for the

Northern District of Illinois is not reported.

i

2

JURISDICTION

The order of the Court of Appeals for the Seventh Cir.

cuit was entered on January 31, 1974. A timely petition

for rehearing was denied on March 28, 1974. This peti-

tion is filed within 30 days of that date. This Court has

jurisdiction under 62 Stat. 928, 28 U.S.C. See. 1254(1).

QUESTIONS PRESENTED

1. Where petitioners presented an alibi defense, and

defense counsel timely requested an instruction as to the

proper consideration of such evidence by the jury, and

where the State Appellate Court originally reversed and

remanded, but later withdrew its opinion, substituting

another based upon an Illinois Supreme Court case adopt-

ing (without statement of reasons) the position of Illinois

Pattern Jury Instructions that no alibi instructions should

be given, may the federal court, on a habeas writ, decline

to interfere with the state court judgment upon the stated

reason that ‘‘federal judges are not the guardians of the

guardians of state law’’?

2. Is not refusal to instruct the jury upon the proper

consideration to be given a defense of alibi tantamount

to leaving the lay jurors free to follow their personal,

possibly misconceived notions regarding this defense, and

does not such refusal, therefore, deprive the accused of

that fair trial required by due proecss of law as guaran-

teed by the Fourteenth Amendment?

3. Is not the right to present one’s theory of defense

to the jury under proper instructions (such as that re-

fused in the case at bar) of constitutional dimension so

as to merit federal protection from state infringement,

whether judged in terms of the reasonable doubt require-

3

ment of In re Winship, 397 U.S. 358, or as required by

“some principle of justice so rooted in the traditions

and conscience of our people as to be ranked as funda-

mental,’ ’’ Cupp v. Naughten, ........ US. ......... 38 L.Ed.2d

368, 375%

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Con-

stitution provides in pertinent part:

‘*... [NJor shall any state deny any person of...

liberty . . . without due process of law.’’

The Sixth Amendment to the United States Constitu-

tion provides in pertinent part:

‘‘In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the wit-

nesses against him... .’’

ISSUES PRESENTED

The questions presented by this petition, which involve

the refusal of a state court in violation of then-applicable

state law to instruct the jury upon defense request upon

the defense of alibi, also invoke the supervisory power

of this Court insofar as the District Court’s and the Court

of Appeals’ refusal to reach the merits is concerned.

STATEMENT OF THE CASE

This petition seeks review of an order of the United

States Court of Appeals for the Seventh Circuit, affirming

the District Court’s dismissal of petitioners’ petition for

a writ of habeas corpus.

In February of 1970, petitioners Gilbert Waters and

Henry Waters (hereafter, petitioners) were convicted

4

after a jury trial. In an opinion filed August 25, 1971, the

Illinois Appellate Court reversed and remanded the con-

victions on the ground that the trial court had erroneously

refused to grant petitioners’ request to instruct the jury

on the law applicable to the defense of alibi. Upon petition

for rehearing by the State, the Appellate Court withdrew

its previous opinion, and substituted therefor another

opinion filed November 18, 1971 (reported at 275 N.E.2d

472) affirming the convictions. Petitioners’ other conten-

tions were adversely decided in both opinions. The basis for

the court’s change of position on the alibi instruction issue

was an Illinois Supreme Court case, People v. Poe, 48 Ill.2d

506, 272 N.E.2d 28 (1971). Although the Illinois Supreme

Court’s opinion in Poe was filed on May 27, 1971, the deci-

sion was not called to the Appellate Court’s attention

until after the first Appellate Court opinion had been

filed. In Poe, the Illinois Supreme Court overruled sub

silentio a long line of prior decisions requiring that an

alibi instruction be given where the evidence warrants

it, thereby adopting the position of Illinois Pattern Jury

Instructions (I.P.I. Crim. 24.05) that no instruction con-

cerning the treatment of alibi evidence be given.

After the Appellate Court’s second opinion affirming

petitioners’ convictions, their petition to the Illinois Su-

preme Court for leave to appeal was denied.

Petitioners’ petition for a writ of habeas corpus was

originally dismissed by the District Court on July 31,

1972. Upon their motion for reconsideration, the District

Court on October 31, 1972 adhered to its original order

dismissing the petition.

Petitioners remain incarcerated for 20 to 30 years.

_

REASONS FOR GRANTING THE WRIT

2.

Petitioners were denied their right to a fair trial guar-

anteed by the Fourteenth Amendment to the United States

Constitution when the State Trial Court refused to instruct

the jury as to the law applicable to their defense of alibi,

since due process of law requires that the jury be instructed

as to defendants’ theory of the case. The District Court

and Court of Appeals erroneously concluded to the con-

trary.

Fundamental fairness as embodied in the due process

clause of the Fourteenth Amendment demands that a de-

fendant in a criminal case be permitted to have his theory

of the case properly submitted to the jury for decision.

While not deciding the exact issue, this Court has

spoken on a similar issue, wtih language supportive of

petitioners’ position. In Holt v. Virginia, 381 U.S. 131, 14

LEd.2d 290 (1965), this Court for the first time held

that compulsory process for defense witnesses (an essen-

tial portion of Sixth Amendment right to confrontation)

was required to be provided in state criminal proceedings

as a requirement of due process. As part of its rationale

for so holding, this Court stated:

‘*[D]ue process guarantee[s] a defendant .. . ‘an

opportunity to be heard in his defense — a right to

his day in court — . . .’ The right to be heard must

necessarily embody a right to raise relevant issues.’’

381 U.S. at 136, 14 L.Ed.2d at 293.

ua Si

6

Such a constitutional right to ‘‘raise relevant issues’’ and

‘“to be heard in his defense’’ must necessarily also include

the right to have the finder of fact properly instructed as

to the law applicable to those issues in order fully to

exercise that right.

The fundamental right to have submitted to the jury

any theory of the defense raised by evidence in the record

has long been recognized both by federal and Illinois

decisions.

See, e.g., United States v. Phillips, 217 F.2d 435, 440-41

(7 Cir. 1955). In that case, defendant unsuccessfully

sought to have the jury instructed that if he acted in good

faith, on advice of counsel, the jury should acquit. The

appeals court agreed and reversed and remanded, holding

that where the evidence supports the defense theory, de-

fendant has a right to have the jury instructed on that

theory. In Calderon v. United States, 279 Fed. 556, 558 (5

Cir. 1922), the reviewing court held that where the evi-

dence presents a defense theory and the court’s attention

is called to it, it is reversible error for the court to refuse

to instruct the jury thereon. In United States v. Grimes,

413 F.2d 1376, 1378 (7 Cir. 1969), the court reversed and

remanded where defendant unsuccessfully sought to have

the jury instructed on his theory of the case, which was

the defense of another to justify an alleged assault on a

prison guard. The court held:

‘‘[D]efendant in a criminal case is entitled to have

the jury consider any theory of the defense which is

supported by law and which has some foundation in

the evidence, however tenuous.”’

The questions presented by this petition are indeed the

reverse of the coin of those involved in Mullaney v. Wil-

bev, ... US .— , 39 L.Ed.2d 96 (1974). There, this

7

Court must have recognized that an instruction specifi-

cally not requiring the State to prove malice aforethought

in a murder prosecution, but requiring defendant to es-

tablish lack of malice aforethought, could be violative of

federally guaranteed due process of law. The Court

granted certiorari (under No. 72-1462, on January 14,

1974), and remanded for reconsideration by the Court of

Appeals in the light of an intervening state court deci-

sion explaining the history and meaning of the law in

question.

In the case at bar, the Illinois court’s justification for

failure to give the requested alibi instruction was merely

adoption by Illinois of the Pattern Jury Instructions for-

mulated by a Judicial Committee recommending that no

instruction on the subject be given.

Where, as here, the instruction which was not given

would have clarified to the jury that once the physical pos-

sibility of defendant to perpetrate the offense is put in

question by presentation of an alibi defense, the burden

is on the State to establish his presence at the time and

place of the crime, then failure to give that requested in-

struction amounts to permitting the State to obtain a

conviction without proving an essential element of the

offense—i.e., that it was physically possible for the ac-

eused to have committed the crime. With a defense in

such lay disrepute as ‘‘alibi,’’ we submit, it is essential

that the jury overtly be reminded of this continuing bur-

den upon the State. Failure so to do thus amounts to per-

mitting defendant to be convicted in violation of due pro-

cess of law.

Until the Illinois Supreme Court’s decision in People v.

Poe, 48 Ill.2d 506, 272 N.E.2d 28 (1971), Illinois courts had

recognized a fundamental right to have the jury instruct-

Soe ee

8

ed on any defense theory of the case supported by the

evidence. In People v. Matter, 371 Ill. 33, 20 N.E.2d 600

(1939), the court held:

‘*When there is evidence in the record, . . . the de.

fendant .. . [is] entitled to have the jury instructed

as to the law applicable to any state of facts shown

by the evidence . . . We are not called upon to judge

the weight of the evidence upon this question, as very

slight evidence upon a given theory of the case will

—~ the giving of an instruction.’’ 20 N.E.2d at

In People v. Lefler, 38 Tl.2d 216, 230 N.E.2d 827, 830

(1967), and in People v. Routt, 100 Ill.App.2d 388, 241

N.E.2d 206, 209 (4 Dist. 1968), the courts specifically

recognized that the defendant is entitled to an instruction

on his theory of the case.

Until Poe, supra, Illinois courts had specifically applied

the above doctrine to alibi cases; where the evidence sup-

ported defendant’s theory of alibi, a requested instruction

concerning the law applicable to such evidence, particv-

larly concerning the state’s burden of establishing a de-

fendant’s presence at the scene of the crime beyond a

reasonable doubt, was absolutely required.

In People v. Scott, 401 Ill. 80, 81 N.E.2d 426 (1948), the

court reversed and remanded because the trial court re-

fused to instruct the jury concerning defendant’s alibi

defense. In holding that such instruction was required,

the Court stated:

‘‘ [Defendant is] entitled to have the jury instructed

not only as to the law applicable to any state of facts

testified to by him, but applicable to any state of facts

which the jury might legitimately find from the evi-

dence to have been proved.’’ 81 N.E.2d at 429-30.

Accord, People v. Morris, 90 Ill.App.2d 208, 234 N.E. 2d

52 (1 Dist. 1967) ; People v. Collins, 49 Ill.2d 179, 274 NE.

2d 77, 82-83 (1971).

9

The federal courts are similarly in accord with the prin-

ciple that where the evidence raises an alibi defense, the

jury must be instructed as to the government’s burden of

proof concerning the alibi. Both federal manuals on crimi-

nal jury instructions contain such an instruction. Mathes

& Devitt, Federal Jury Practice and Instructions, sec.

8.27, at 110 (1965); LaBuy, Jury Instructions in Federal

Criminal Cases, see. 5.01, at 25 (1965).

In United States v. Marcus, 166 F.2d 497 (3 Cir. 1948),

two witnesses testified at trial that defendant was else- -

where at the time the offense was committed. The court

reversed, holding:

‘‘(I|nstructions on the presumption of innocence

of the accused, and of the necessity of fastening every

necessary element of the crime charged upon the ac-

cused beyond a reasonable doubt, are not enough in

cases involving the necessary presence of the accused

at a particular time and place, when the accused pro-

duces testimony that he was elsewhere at the time. If

the accused requests an instruction as to the burden

of proof on his alibi, an instruction on the subject

must be given so as to acquaint the jury with the

law that the government’s burden of proof covers the

defense of alibi, as well as all other phases of the

ease. Proof beyond a reasonable doubt as to the

alibi never shifts to the accused who offers it, and if

the jury’s consideration of the alibi testimony leaves

in the jury’s mind a reasonable doubt as to the pres-

ence of the accused, then the government has not

proved the guilt of the accused beyond a reasonable

doubt. . . . [Even if defendant’s proffered instruction

was improper], since an instruction on the issue was

requested, it was the court’s duty to itself compose

and give a proper instruction on the subject.’’ Id. at

503-04

10

Accord, United States v. Barrasso, 267 F.2d 908, 910-11

(3 Cir. 1959). Another alibi instruction which has re.

ceived approval is contained in Goodall v. United States,

180 F.2d 397, 401-02 (D.C. Cir. 1950), as follows:

‘“‘There has been testimony to the effect that the

defendant was not present at the time and place when

this homicide was committed. The defense of alibi is

a legitimate, legal, and proper defense. The evidence

adduced in support of this defense, like all the other

evidence in the case, should be given such weight and

such consideration as you may think it entitled to

under all the facts and circumstances of the case.

‘Tf, after a full and fair consideration of all the

facts and circumstances in evidence, you find the Gov-

ernment has failed to prove beyond a reasonable

doubt that the defendant was present at the time and

place of the commission of the offense charged in the

indictment, then one of the essential elements of the

offense is lacking, and it will be your duty to find the

defendant not guilty.’’ Id. at 402.

We are not suggesting that any particular form of alibi

instruction is required by due process. What we are sub-

mitting is that where, as here, evidence of alibi is in the

record, and where, as here, defense counsel requested an

alibi instruction, fundamental fairness requires that such

evidence properly be submitted to the jury as petitioners’

theory of the case, together with a proper statement of

applicable law concerning the prosecution’s burden of

proof as to that issue. To give no instruction whatever

1See Naughten v. Cupp, 476 F.2d 845, 846 n.l (9 Cir. 1973),

reversed by Cupp v. Naughten, ........ ea. sen , 38 L.Ed.2d 368

(1974).

—a

11

concerning alibi where the evidence supports this defense

amounts to denial of petitioners’ due process right to have

their theory of the case properly presented to the jury.

Nor is petitioners’ failure to include a specific requested

instruction fatal to their claim that a proper instruction

should have been given, for the State trial court made it

perfectly clear that no alibi instruction would be given.

When defense counsel requested that an alibi instruction

be given, the court refused to permit counsel to submit

any specific instruction, stating that no instruction on the

subject would be given at all, based upon the Committee

Comments to I.P.I. Crim. 24.05. (Abst. filed in State ap-

peal, p. 27, Trial Tr. p. 351) The court noted that counsel

could argue the matter of alibi to the jury.

However, that counsel was permitted to argue the law

concerning the defense of alibi to the jury does not cure

the prejudice ensuing from the court’s refusal to give an

alibi instruction. Argument unsupported by instructions

from the court lacks that ring of authenticity which am-

plifies argument on a legal issue validated, as it were, in

the mind of the jury by instructions on that issue. This

was recognized by the court in United States v. Phillips,

217 F.2d 435 (7 Cir. 1955), where, in reversing for failure

to instruct on the defense that defendant acted on advice

of counsel, the court stated:

‘“‘An argument to a jury, however, on a legal issue,

unsupported by an instruction to which the defendant

was entitled, constitutes an aggravation rather than a

mitigation of the harmful effect of the court’s refusal

to instruct.’’

Federal habeas corpus is a proper method by which to

test the constitutional validity of a State trial court’s

charge to the jury. In United States ex rel. Powell v.

12

Pennsylvania, 294 F.Supp. 849 (E.D. Pa. 1968), app. dis.

missed, 425 F.2d 367 (3 Cir. 1970), the court stated, ‘‘ An

allegation of impropriety in the charge to the jury en.

titles a state prisoner to federal habeas corpus relief only

where it is shown that it constituted fundamental error

resulting in a deprivation of due process.’’ 294 F.Supp. at

851. In that case the court concluded that failure to

charge the jury as to the lesser included offense of invol-

untary manslaughter would constitute such fundamental

error if there had been some evidence to support such a

verdict; however, since the court found no such evidence

in the record, relief was denied. Jd. at 852. Other cases

holding that instructions to the jury are cognizable by

habeas corpus where the error complained of rendered

the trial fundamentally unfair in violation of due process

include Higgins v. Wainwright, 424 F.2d 177, 178 (5 Cir.

1970), and Shepherd v. Nelson, 432 F.2d 1045, 1046 (9 Cir.

1970).

Federal cases granting habeas corpus because of im-

proper instructions to State juries regarding alibi in-

clude Stump v. Bennett, 398 F.2d 111 (8 Cir. 1968) ; John.

son v. Bennett, 414 F.2d 50 (8 Cir. 1959) ; State v. Smith,

321 F.Supp. 482, 488, 490 (N.D. Ga. 1970), Smith v. Smith,

454 F.2d 572 (5 Cir. 1972); and Mathis v. Caldwell, 455

F.2d 979 (5 Cir. 1972).

While these cases granted habeas corpus in state crimi-

nal cases on the ground that the alibi instruction given

may have improperly shifted the burden of proof to the

defendant, they also necessarily recognize that proper

jury consideration of the alibi defense is essential to 4

fair trial.

13

It must be remembered that laymen tend to view alibi

evidence, particularly when testified to by members of a

defendant’s family, with great distrust and skepticism.

Without being advised specifically that the alibi evidence

could be sufficient in law to raise a reasonable doubt of

petitioner’s guilt, the jury may not have realized this.

Especially in such a case as the instant case, where the

nature of the crime charged was repulsive, violent and

malicious, it is of extreme importance that the jury be

properly instructed regarding alibi. (See Point 3, infra)

We submit that in this case failure to instruct on the

defense of alibi at all was as repugnant to due process as

giving such erroneous instructions as were stricken by

the federal courts in the cases cited above. Cf. Screws v.

United States, 325 U.S. 91, 89 L.Ed. 1495 (1945).

Giving no alibi instruction can be just as violative of

due process of law as giving a faulty one, in that the jury

is left to conjecture and surmise as to the treatment it

should afford the alibi evidence, and the defendant’s

theory of the case, which he has a fundamental right to

present to the jury, is in effect not presented at all. Cf.

Cutshall v. Tollett, 318 F.Supp. 1330 (E.D. Tenn. 1970).

Proper alibi instructions are necessary in order to im-

plement the presumption of innocence and the require-

ment of proof of guilt beyond a reasonable doubt. As the

court stated in Smith v. Smith, 454 F.2d 572, 579 (5 Cir.

1972) :

‘‘Habeas corpus will not lie to challenge a jury

charge in the absence of a clear denial of due process

so as to render the trial fundamentally unfair. Higgins

v. Wainwright, 5th Cir. 1970, 424 F.2d 177; McDonald

v. Sheriff of Palm Beach County, Florida, 5th Cir.

1970, 422 F.2d 839. In light of these principles, there

is yet no doubt that a shift in the burden of proof

14

of an essential element of the crime does rise to con.

stitutional proportions and renders the trial funda.

mentally unfair. The presumption of innocence and

the harsh burden of proof placed on the State in crim.

inal prosecutions are two of the oldest and most fun.

damental rights protected by our Constitution. See,

e.g., Coffin v. United States, 156 U.S. 482, 15 S.Ct. 394,

39 L.Ed. 481 (1895). They purport to protect all

citizens from the threat of punishment by mistake,

They are therefore far too important and fundamen.

tal to be classified as less than constitutionally pro-

tected. See Deutch v. United States, 367 U.S. 456, 81

S.Ct. 1587, 6 L.Ed.2d 963 (1961); Speiser v. Randall,

357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958);

Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78

L.Ed. 664 (1934); Cummings v. Missouri, 4 Wall. 277,

18 L.Ed. 356 (1966).’’ (Emphasis added.) |

Although the State in the Smith case had argued that

since the jury had been given a standard ‘“‘proof beyond

a reasonable doubt’’ instruction which, according to the

State, adequately protected these rights, the Court in

Smith decided that it could not ‘‘second-guess”’ the jury;

since no proper alibi instruction was given, habeas corpus

was held to lie:

‘‘As noted by the Eighth Circuit in Stump, this

Court cannot determine with precision where the jury

in any particular case placed the burden of proof.

This does not prevent this Court from exercising its

collective common sense in the instant case. Accord-

ingly, we must presume that prejudice resulted.’’ Id.

at 578.

Cf. Cool v. United States, 409 U.S. 100, 34 L.Ed.2d 335

(1972), where this Court held that an improper accom-

plice testimony instruction rendered defendant’s trial

fundamentally unfair, even though other, proper general

instructions regarding the presumption of innocence and

burden of proof were given.

15

We respectfully urge that the State of Illinois’ decision

not to instruct on alibi evidence, based only upon a Com-

mittee’s recommendation later adopted by the Illinois Su-

preme Court (People v. Poe, 48 Ill.2d 506, 272 N.E.2d 28

(1971)), operated to deprive petitioners of due process of

law in that they were precluded from having their theory

of the defense fairly submitted to the jury. We request

this Court to issue the writ reviewing the order of the

Seventh Circuit, and to direct that court to issue a writ of

habeas corpus and order petitioners discharged unless,

within a reasonable specified time, the State affords them

a new trial at which they will have their day in court (Holt

y. Virginia, 381 U.S. 131, 136, 14 L.Ed.2d 290, 293 (1956))

and an opportunity to present their defense to the jury,

as is their federally guaranteed due process right.

The State Appellate Court’s decision affirming peti-

tioners’ convictions depended upon giving retroactive ef-

fect to People v. Poe, 48 Ill. 2d 506, 272 N.E. 2d 28 (1971),

decided after petitioners’ trial; this deprived petitioners

of their fundamental right, secured by Fourteenth Amend-

ment due process of law, to have their cases decided under

controlling law in existence at the time of their trial.

After petitioners’ convictions were first reversed, on re-

hearing they were affirmed, based on People v. Poe, 48 Ml.

2d 506, 272 N.E. 2d 28 (1971). Poe was decided on May

27, 1971. Petitioners were convicted in February of 1970.

Pre-Poe Illinois law specifically required that, where

there was any evidence supporting an alibi defense, it was

reversible error not to give an instruction on the subject

of alibi. This line of decisions was consistent for a long

period of time prior to Poe. For example, in People v.

Scott, 401 Ill. 80, 81 N.E. 2d 426, 429-30 (1948), the Dllinois

7

Supreme Court reversed and remanded because the trial

court refused to instruct the jury concerning defendant’s

alibi defense. Accord, People v. Collins, 49 Ill. 2d 179, 274

N.E. 2d 77, 82-83 (1971) ; People v. Morris, 90 Ill. App. 24

208, 234 N.E. 2d 52 (1 Dist. 1967) (Abst. only).

Moreover, under Illinois law (and under federal de.

cisions as well; see Point 1, p. 6, supra), petitioners

are entitled to a ‘‘theory of the case’’ instruction if there

is any evidence in the record which could conceivably sup-

port their theory of the case. People v. Matter, 371 Il.

33, 20 N.E. 2d 600 (1939) ; People v. Lefler, 38 Til. 2d 216,

230 N.E. 2d 827, 830 (1967); People v. Routt, 100 Ill. App.

2d 388, 241 N.E. 2d 206, 209 (4 Dist. 1968).

As was pointed out in Point 1, p. 8, supra, prior to

Poe, under the doctrine of the above-cited cases, where

any evidence supported a defendant’s theory of alibi, an

instruction concerning the law applicable to such evidence,

particularly concerning the State’s burden to prove de-

fendant’s presence at the scene of the crime beyond a rea-

sonable doubt, was absolutely required.

Pre-Poe law, requiring that an alibi instruction be

given, was in effect at the time of petitioners’ trial and

convictions. While not expressly overruling any prior

eases, Poe sub silentio overruled all such cases insofar as

an alibi instruction was concerned. To apply Poe to peti-

tioners’ trial so as thus to condone the trial court’s failure

to instruct on alibi amounts to giving retroactive effect to

Poe. Such effect should not have been given to Poe by the

appellate court. Giving it such effect, by affirming peti-

tioners’ convictions, amounts to depriving defendants of

yet another fundamental right—the right to have their

eases decided under controlling law existing at the time

of their trial?

16

2 This is particularly true where, as here, the “controlling law’

concerned a fundamental right. See Point 1, supra.

—_—

17

We urge this Court to rule that Poe should not have been

given retroactive effect to justify affirming petitioners’

convictions under these circumstances. Giving Poe retro-

active effect to petitioners’ trial and convictions consti-

tutes a further and additional denial of their right to a

fair trial. They were entitled to be tried according to

standards then prevailing in Illinois under decisional law,

and they were not so tried.

Many recent ‘‘overruling’’ decisions—that is, judicial

decisions which, like Poe, overturn a long line of case law

to the contrary—have been held not to be retroactive.

For example Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081

(1961), overruling a long line of cases which had held that

illegally seized evidence was nonetheless admissible in

state criminal proceedings, was held not retroactive in

Linkletter v. Walker, 381 U.S. 618, 14 L.Ed. 2d 601 (1965).

Escobedo v. Illinois, 378 U.S. 78, 12 L.Ed. 2d 977 (1964),

and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694

(1966), overruling a series of holdings and announcing

that confessions taken in absence of counsel or without

giving appropriate warnings concerning constitutional

rights are inadmissible, were held not retroactive (specifi-

cally, held not applicable to trials begun before their

dates of decision), in Johnson v. New Jersey, 384 U.S.

719, 16 L.Ed. 2d 882 (1966).

Lee v. Florida, 392 U.S. 378, 20 L.Ed 2d 1166 (1968),

which overruled earlier cases and held that evidence ob-

tained in violation of a federal wiretapping statute is in-

admissible in state criminal proceedings, was held not

retroactive in Fuller v. Alaska, 393 U.S. 80, 21 L.Ed. 2d

212 (1968).

18

Katz v. United States, 389 U.S. 347, 19 L.Ed. 2d 576

(1967), overruling a long line of cases and holding that

electronic eavesdropping is unconstitutional even without

physical trespass, was held not retroactive in Desist y,

United States, 394 U.S. 244, 22 L.Ed. 2d 248 (1969), and

Kaiser v. New York, 394 U.S. 280, 22 L.Ed. 2d 274 (1969).

McCarthy v. United States, 394 U.S. 459, 22 L.Ed. 24

418 (1969), holding that Rule 11 of F.R.Cr.P. must be

strictly complied with, and failure so to do is reversible

error, overruling prior cases, was held not to be retro.

active (that is, it was held applicable only to guilty pleas

accepted after McCarthy’s decision) in Halliday v. United

States, 394 U.S. 831, 23 L.Ed 2d 16 (1969).

Thus, there is considerable authority supporting the

proposition that an overruling decision affecting substan-

tial rights should not be given retrospective effect.

We believe we have already sufficiently demonstrated

to this Court that failure to give an alibi instruction de

prived petitioners of substantial rights—namely, their

right to a fair trial. We have also demonstrated that,

under state law in existence at the time of their trial, a

alibi instruction was required to be given, and that the

trial court erred, under then existing law, in refusing to

give the alibi instruction to the jury where there was some

evidence of record supporting the defense of alibi. We

further believe that, in addition to those matters already

presented to this Court in support of petitioners’ posi-

tion, petitioners were further deprived of substantial con-

stitutional rights by application to their case by the ap

pellate court of the Poe decision as the sole basis for af-

firmance, where that case had not yet been decided at the

time of their trial, and where it is clear that Poe overruled

a long and unbroken line of Illinois decisional law upo

which petitioners had a right to rely. Cf. Gelpcke ¥.

Dubuque, 1 Wall. 175, 17 L.Ed. 520 (1864).

:

3.

The District Court and the Court of Appeals used an

improper standard to justify affirmance. Rather than de-

termining for itself (as it should have) that under appli-

cable analogous authorities petitioners’ claim does indeed

rise to due process proportions, because no controlling au-

thority specifically so stated each court chose not to recog-

nize such right, and indulged in the luxury of declining to

dictate its views to the state courts for the purported rea-

son that petitioners’ claim did not rise to due process

proportions. In the exercise of its supervisory power, this

Court should review the decision so as to encourage the

federal courts to recognize legitimate due process claims

as such on habeas corpus petitions although no control-

ling authority may at the time so require.

Both the District Court and the Court of Appeals erro-

neously concluded that petitioners’ claim did not rise to

constitutional dimension, i.e., that it did not reach due

process proportions. Petitioners have demonstrated in

Points 1 and 2, supra, that it did.

The Court of Appeals, mistakenly characterizing the

defense of alibi as other than an ‘‘exculpatory defense,’”*

*The court characterized “alibi defense” as not being an “‘excul-

patory defense,” inasmuch as it is merely a method of disproving

the prosecution’s case. (App. 3) But the two (a defense which

is “exculpatory,” and a method of proof which tends to disprove the

prosecution’s case) are not opposites. For example:

“Exculpatory. Clearing or tending to clear from alleged

fault or guilt.” Black’s Law Dictionary 675 (4th ed. 1957).

“Exculpatory—proving or tending to prove guiltless; excul-

pating.” American Heritage Dictionary of the English Lan-

guage 458 (3rd printing 1970).

“Exculpate—to clear of a charge, prove guiltless or blame-

ae

wrongly decided that the state trial court’s failure to in.

struct the jury upon alibi did not deprive petitioners of

any right preserved against State encroachment by the

Fourteenth Amendment. Therefore, while clearly indi-

eating its disapproval of the Illinois procedure of uni-

formly refusing to instruct the jury upon this defense, the

court declined to impose its views upon the State.

20

Because an alibi defense may of itself serve to raise a

reasonable doubt of a defendant’s guilt in the mind of

the trier of the facts, it is essential that the fact-finder

understand its import.

Moreover—and this point was not touched on by the

court, though raised in the Briefs and argued on appeal—

because of the generally unsavory reputation of an

‘‘alibi’? among lay persons, particularly if the alibi is

supported only by the testimony of friends or relatives of

the defendants, it is essential, in order that defendants

may have the jury give due consideration to their alibi

defense, that the jury appropriately be instructed by the

court.

Justifying its conclusion by analogy to Various cases

holding that issues involving state trial court instructions

do not usually involve federal constitutional issues (App.

(Footnote continued)

less; exonerate.” Ibid.

“Exculpatory—tending or serving to exculpate.” Webster's

Seventh New Collegiate Dictionary 290 (1972).

“Exculpate—to clear from alleged fault or guilt.” Ibid.

In other words, an exculpatory defense is one which—like an alibi

defense—tends or serves to clear one from alleged guilt, regardless

of whether or not this is accomplished by tending to disprove the

prosecution’s evidence that defendant committed the offense.

21

9-3), the court ignores the realities of a jury’s considera-

tion of an alibi defense as well as the clear directive that:

‘‘[D]ue process guarantee[s] a defendant .. . ‘an

opportunity to be heard in his defense—a right to his

day in court—. . .’ The right to be heard must neces-

sarily embody a right to raise relevant issues.’’ Holt

yv. Virginia, 381 U.S. 131, 136, 14 L.Ed. 2d 290, 293

(1965).

The Court also failed to grasp the import of In re Win-

ship, 397 U.S. 358, 364, 25 L.Ed.2d 368, 375 (1970), where

this Court ‘‘explicitly’’ held

‘‘that the Due Process Clause protects the accused

against conviction except upon proof beyond a rea-

sonable doubt of every fact necessary to constitute

the crime with which he is charged.’’

As we have demonstrated, where an alibi defense is pre-

sented, the physical possibility of the accused’s presence

at the time and place of the crime necessarily becomes

one such fact, and the jury must therefore be so instructed.

The court’s disapproval of the Illinois procedure of

blanketly refusing to give alibi instructions is clear from

the language of its order; however, believing the matter

not to rise to due process proportions, the court declined

to intervene. (App. 3) When considered in its proper

perspective, blanket refusal to instruct juries upon the

law applicable to the defense of alibi, as is presently prac-

ticeed by the courts of Illinois, amounts to a denial of the

fundamental due process right to be heard in one’s de-

fense.

Under the factual posture of the case at bar, such right

is of constitutional dimension so as to merit federal pro-

tection from state infringement, whether judged in terms

22

of the reasonable doubt requirement of In re Winship,

supra, or as required by ‘‘ ‘some principle of justice so

rooted in the traditions and conscience of our people s9

as to be ranked as fundamental.’ ’’ Cupp v. Naughten, ___

) aio , 38 L.Ed.2d 368, 375 (1974), quoting from

Snyder v. Massachusetts, 291 U.S. 97, 105, 78 L.Ed. 674,

677 (1934).

Had the District Court and the Court of Appeals inde.

pendently searched its collective conscience, they would

have determined that despite the absence of any authority

expressly requiring such holding, petitioners’ claims did

indeed rise to constitutional dimension and due process

proportions. Such determination is clear from the preced.

ing arguments in this Petition.

In the exercise of its supervisory power, this Court

should review the instant decision so as to encourage the

lower federal courts to recognize legitimate due process

claims as such on habeas corpus petitions although no

controlling authority may at the time so require. The

decisions of the District Court and Court of Appeals in

the case at bar demonstrate that those courts declined s0

to act.

While jurisdiction must be present, courts should not

bend over backwards to decline to find it when it is there

Petitioners’ claim in the case at bar is within the federal

jurisdiction, and should have been recognized and vindi-

cated.

CONCLUSION

For the reasons set forth above, a writ of certiorari

should issue to review the order of the Court of Appeals

for the Seventh Circuit.

Respectfully submitted,

Juuus Lucius EcHELEs

CaRoLYN JAFFE

Attorneys for Petitioners

APPENDIZ

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

Heard October 15, 1973—Decided January 31, 1974

Before

Hon. Roger J. Kiley, Senior Circuit Judge

Hon. John Paul Stevens, Circuit Judge

Hon. Charles E. Wyzanski, Jr., Senior District Judge*

UNITED STATES OF AMERICA, Ex. Rel. GILBERT

WATERS and HENRY WATERS,

Petitioners-Appellants,

No. 72-1966 vs.

PETER BENSINGER, Director of Corrections,

Respondent-Appellee.

Appeal from the United States District Court for the

Northern District of Dllinois, Eastern Division.

No. 72 C 1297

James B. Parson, Judge.

ORDER

Appellants seek reversal of the district court’s denial

of their petition for a writ of habeas corpus. They un-

successfully claimed in the district court that their rights

under the due process clause of the Fourteenth Amend-

ment were denied by the Illinois state trial court which

had convicted them of armed robbery. Appellants’ prin-

*Senior District Judge Charles Edward Wyzanski, Jr., of the

District of Massachusetts, is sitting by designation.

App. 2

cipal ground for seeking reversal is that the state court

refused their request to instruct the jury on their defense.

Appellants’ subsidiary point is that in their case the state

court changed the judicial rule with respect to alibis, and

in their view this constituted a constitutionally impermis.

sible retroactive law.

In the state criminal trial court, appellants offered with.

out let or hindrance evidence respecting an alibi and also

arguments to the jury in support of their defense of an

alibi. But the trial judge, though asked to do so, did not

instruct the jury on the defense of alibi. The Illinois ap.

pellate court, as a matter of state law, first reversed the

convictions because of the trial judge’s failure to give an

alibi instruction, but that court on rehearing withdrew its

opinion and affirmed the convictions. People v. Waters, 2

Ill. App.3d. 429, 275 N.E. 2d. 472 (2d Dist.. App. 1972)

The initial question is whether there is any merit to the

suggestion that a state violates the due process clause of

the federal constitution when it changes the rule of sub-

stantive law by a judicial opinion contrary to the state

court’s earlier judicial views. Such a change is not a retro-

active law of the type prohibited by the federal constitu.

tion, and the state is as free by judicial opinion to change

its criminal as its civil law, irrespective of the effect of

the change upon cases pending in a lower state court. Cf.

Linkletter v. Walker, 381 U.S. 618, 629 (1965); Great

Northern Ry. v. Sunburst Oil & Refining Co., 287 U.S 358,

364-365 (1932)

The second and main question is whether as a matter

of federal constitutional law the Illinois state convictions

deny due process because the state judge failed to give an

alibi instruction. No authority precisely in point has been

drawn to our attention. But as a matter of principle, and

as a matter of analogy, we are clear that the failure of

the state court’s trial judge to give the alibi instruction

App. 3

does not involve a point of such fundamental nature in

the pursuit of justice as to merit protection by the Four-

teenth Amendment. ‘‘Normally . . . instructions to the

jury on state trials are matters of state law and procedure

not involving federal constitutional issues.’’ Grundler v.

State of North Carolina, 283 F.2d 798, 802 (4th Cir., 1960)

See Kearney v. Peyton, 360 F.2d 589 (4th Cir., 1966);

Greyson v. Com. of Kentucky, 333 F.2d 583 (6th Cir.,

1964); McDonald v. Sheriff of Palm Beach County, 422

F.2d 839 (5th Cir., 1970) There is no reason in this case

not to follow the cited analogies. Logically, an alibi is

not an exculpatory defense; it is merely a method of dis-

proving the prosecution’s case. Some have thought it

dificult to frame instructions on the alibi defense without

confusing the jury on the major principle that the govern-

ment has the burden of proof of every essential element

of the crime charged. Indeed the Illinois Judicial Con-

ference [Illinois Pattern Jury Instructions, Criminal,

94.05 (Chicago, 1968) ] seems to have had this view. While

we as federal judges may not be overwhelmingly im-

pressed with this Illinois state view, it is not our direct

concern to tell state judges how to instruct juries. Rea-

sonable differences in state practice, whether founded on

confidence or lack of confidence in the capacity of trial

judges and juries, are permissible under the federal con-

stitution. Except in extreme cases we federal judges are

not the guardians of the guardians of state law.

Ex majore cautela we observe that, unlike Stump v. Ben-

nett, 398 F.2d 111 (8th Cir., 1968) Johnson v. Bennett, 414

F.2d 50 (8th Cir., 1969), and Smith v, Smith, 454 F.2d 572

(5th Cir., 1972), this case does not present the question

whether it is constitutionally permissible to instruct the

jury that the defendant must bear the burden of proving

an alibi—an instruction which has the effect of shifting

from the prosecution to the defense the burden of proof.

Judgment affirmed.

Petition for Rehearing denied on March 28, 1974.