Petition for Writ of Certiorari — In re Thurmer

AD AR Se a ty THIN Rae ARN TIT Leet a DG ND ie BES.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No.

IN THE MATTER OF THE APPLICATION OF

RICHARD G. THURMER,

Petitioner,

FOR A WRIT OF HABEAS CORPUS

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

RICHARD G. THURMER

Attorney for himself

820 Chestnut Avenue

Los Angeles, CA 90042

(213) CL 7-1433

ASSISTED BY:

HARLAND W. BRAUN

Attorney at Law

1801 Century Park East

Los Angeles, CA 90067

(213) 277-5800

FRANK O. WALTHER

130 Booth Lane

Haverford, Pennsylvania

(215) MI 9-0542

Attorney for Petitioner

TOPICAL INDEX

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF CALIFORNIA

OPINIONS BELOW

JURISDICTION

THE QUESTIONS PRESENTED

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

l. Denial of Confrontation and

Cross-Examination

2. Denial of Effective Repre-

sentation of Counsel

3. Perjury Knowingly Used by

the Prosecution

CONCLUSION

ORDER DENYING WRIT OF HABEAS

CORPUS filed July 3, 1975

47

61

;

i

;

H

§

TABLE OF AUTHORITIES

Cases Page

Ex Parte Abernathy. (1943)

320 U.S. 219

53

Acorta v. Texas (1957)

355 0.8. 26 54

Adams v. United States

ex rel McCann (1942)

317 U.S. 269,

143 A.L.R. 435 53

Adamson v. California (1946)

332 U.S. 46 55

Alford v. United States,

282 U.S. 687 27, 29, 31, 43

Breithaupt v. Abram,

352 U.S. 432 60

Campbell v. United States,

352 F.2d 359 34, 43, 44

Coleman v. Alabama,

399 U.S. 1 40

Glasser v. United States,

315 U.S. 60 35, 36, 37, 43

Hamilton v. Alabama,

368 U.S. 52 40

Hurtado v. California,

110 U.S. 516 4, $6, 37, $9

Lebron v. United States,

299 F.2d 16 35

ii

Cases

Mooney v. Holohan,

294 U.S. 103

Napue v. Illinois,

360 U.S. 264

Olmstead v. United States,

277 U.S. 438

People v. Steele,

65 N.Y.S.2d 214 53,

Pyle v. Kansas,

317 U.S. 213

Rochin v. California,

342 U.S. 165

Smith v. Illinois,

390 U.S. 129 ats a0e

U.S. ex rel Almeida v. Baldi,

195 F.2d 815

United States v. Price,

383 U.S. 787

Wynn v. United States,

275 F.2d 648

Texts

Black, Hugo, Justice:

A Constitutional Faith

Black, Hugo, Justice:

The Bill of Rights,

35 N.Y.U.L.Rev. 865

iii

32

54

54

59

43

54

35

60

60

PPE RYE em 4

Texts Page

Brant, Irving, The Bill of

Rights: Its Origin

and Meaning 60

Brennan, W., Justice: The

Bill of Rights and the

States, 36 N.Y.U.L.Rev.

761 60

Crosskey, William W., Politics

and the Constitution 57, 58,60

Crosskey, William W., The True

Meaning of the Fourteenth

Amendment 57

Douglas, W.O., Justice: The

Bill of Rights is Not

Enough, 38 N.Y.U.L.Rev. 207 58

Douglas, W.O., Justice: Vagrancy

and Arrest on Suspicion,

70 Yale L. Jour. 1 60

Flack, The Adoption of the

Fourteenth Amendment 60

Kaczorowski, Robert J.

5 Conn. L. Rev. 368 60

Rogge, John O., Searching for

the Intent of the Fourteenth

Amendment 60

Antieau, Rights of Our Fathers 60

Civil Rights and State Non-Action,

34 Notre Dame Law 303 60

seo A ERAT ERS e

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term 1975

No.

IN THE MATTER OF THE APPLICATION OF

RICHARD G. THURMER,

Petitioner,

FOR A WRIT OF HABEAS CORPUS.

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF CALIFORNIA

TO THE HONORABLE, CHIEF JUSTICE OF THE

UNITED STATES AND THE ASSOCIATE JUSTICES

OF THE SUPREME COURT OF THE UNITED STATES:

The Petitioner, RICHARD G. THURMER,

respectfully prays that a Writ of

Certiorari issue to review the order of

the Supreme Court of the State of

California which, on the Third day of July,

1975, denied a Petition for a Writ of

Habeas Corpus. Previous to the denial of

the Petition by the California Supreme

1.

Bu. Pac

Court, a petition for the writ had been

denied by the Court of Appeal of the State

of California, Second Appellate District,

Division One. That application had been

filed in the Court of Appeal on May 2,

1975 and an application for re-examination

and reconsideration was also denied.

Copies of all the records in the action

comprised of Ten Exhibits accompany this

Petition for Writ of Certiorari

OPINIONS BELOW

Copies of two short memorandums issued

by the Court of Appeal, but unpublished

are available. An accurate copy of these

memorandums are appended to this petition

as Appendices.

JURISDICTION

The jurisdiction of this Court is

invoked under 28 U.S.C., §1257(3), §1983,

Title 42, U.S.C., §1343, Title 28, U.S.C.,

§237 of the Judicial Code.

THE QUESTIONS PRESENTED

1. Can a magistrate, presiding in a

Critical preliminary hearing stage in a

criminal case, who blatantly and deliber-

ately ignores the unanimous determinations

of this Court on the right to confrontation

and cross-examination, after the violations

have been brought to the Court's attention

together with the decisions applicable,

still retain jurisdiction to enter a

commitment and call it valid?

2. When two defendants, as here,

appeared before the magistrate in a

critical preliminary hearing on criminal

charges, and both being represented by

joint counsel as an economic necessity,

and the interests of both defendants were

in wide conflict to prohibit a "common

cause", does not such magistrate have a

jurisdictional duty and responsibility to

make an affirmative determination whether

or not these two defendants have knowingly

and intelligently chosen this kind of

representation by joint counsel with the

pitfalls which the joint representation

may bring about?

Pe ee

3. Does not the perjured testimony of

the principle witness for the People,

Jimmy Blair, knowingly used by the prose-

cution not invalidate the commitment?

4. Whether the concept of Hurtado v.

California, 110 U.S. 516 (1884) has been

so eroded by the later cases to warrant

the overruling of that case. It is con-

trary to the concept of Constitutional Law

that a prosecutor may by State statute or

State Constitution waive the constitution-

al right which declares that "No person

shall be held to answer for a capital, or

otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury."

Amendment V, Constitution of the United

States. This would complete the final

phase of incorporating all of the First

Ten Amendments into the Due Process Clause

of the Fourteenth, and which was the in-

tention of the framers of that Amendment

in the first place.

STATUTES INVOLVED

Article VI, §2, Constitution of

United States:

"This Constitution, and the Laws of

the United States which shall be made

4.

in Pursuance thereof; .. . shall

be the Supreme Law of the Land;

and the Judges in every State

shall be bound thereby, any Thing

in the Constitution or Laws of a

any State to the Contrary notwith-

standing."

Amendment V. Constitution of

United States:

"No person shall be held to answer

for a capital, or otherwise in-

famous crime, unless on a present-

ment or indictment of a Grand

Jury. « ec

Amendment VI. Constitution of

United States:

"In all criminal prosecution, the

accused shall enjoy the right to

a speedy and public trial, by an

impartial jury of the state and

district wherein the crime shall

have been committed, which district

shall have been previously ascer-

tained by law, and to be informed

of the nature and cause of the

accusation; to be confronted with

the witnesses against him; to have

5.

a

compulsory process for obtaining

witnesses in his favor, and to

have Assistance of Counsel for his

defense."

Amendment IX. Constitution of

United States:

"The enumeration in the Constitution,

of certain rights, shall not be

construed to deny of disparage

others retained by the people.

Amendment XIV. Constitution of

United States:

"Section 1. No State shall make

or enforce any law which shall

: abridge the privileges or immuni-

ties of citizens of the United

States; nor shall any State deprive

) any person of life, liberty, or

property, without due process of

law; nor deny to any person within

its jurisdiction the equal protec-

tion of the laws.

"Section 5. The Congress shall

j have power to enforce by

ae ml

appropriate legislation, the

provisions of this article,"

; 6.

. PETE SENN. ATE EY Y }

Appropriate Legislation: §1983,

Title 42, U.S.C.

“Every person who, under color of any

statute, ordinance, regulation,

custom, Or usage, of any State or

Territory, subjects, or causes to

be subjected, any citizen of the

United States or other person within

the jurisdiction thereof to the

deprivation of any rights, privileges

or immunities secured by the Consti-

tution and laws, shall be liable to

the party injured in an action at

law, suit in equity, or other proper

proceeding for redress,"

Appropriate Legislation: §1343,

Title 28, U.S.C.

"The district courts shall have

original jurisdiction of any civil

action authorized by law to be

commenced by any person:

(3) To redress the deprivation,

under color of any State law, statute,

ordinance, regulation, custom or

usage, of any right, privilege or

immunity secured by the Constitution

of the United States or by any Act

of Congress providing for equal

7.

rights of citizens or of all persons

within the jurisdiction of the

United States."

Appropriate Legislation: §242,

Title 18, U.S.C.

"If two or more persons conspire to

injure, oppress, threaten, or inti-

midate any citizen in the free

exercise or enjoyment of any right

or privilege secured to him by the

Constitution or laws of the United

States, or because of his having so

exercised the same:

"They shall be fined not more than

$5,000 or imprisoned not more than

ten years, or both,"

Interpretation of above laws by the

Supreme Court:

"Under color" of law means the same

thing of section 242 that it does

in the civil counterpart to section

242, 42 U.S.C. section 1983 (1964 ed.)

United States v. Price (1966) 383

U.S. 787, 793 n. 7. "As we have

discussed, its language embraces all

Bie a il sal

of the rights and privileges secured

to citizens by all of the Constitution

and all of the laws of the United

8.

DEINE ITED Lo AIRE OE ENTRY HEN FENOM TLRS HEE SRP AIR REE ENTRAR E: —

States." United States v. Price,

Supra p. 800.

Constitution of California:

Article I, §3

"The States of California is an insep-

arable part of the American Union, and the

Constitution of the United States is the

Supreme Law of the Land,"

Constitution of California:

Article I, §8

“Offences heretofore required to be

prosecuted by indictment shall be pro-

secuted by information, after examina-

tion and commitment by a magistrate,

or by indictment, with or without such

examination and commitment, as may be

prescribed by law. . ."

STATEMENT OF THE CASE

Four individuals ‘are involved in this

case, Blair, Baspous, Keith and petitioner.

The unlawful venture finds its source in

the mind of Blair who was operating a unique

joint venture with law enforcement officers

where he, Blair, would concoct an infamous

ie 19 (fe ties

felony, get others involved in the suggested

killing or assaulting a particular victim,

then going to the proposed victim and ex-

torting money from him to prevent the

9.

—

EF ORE LEGS NY NE PPE LY I OES PN IOP ATEN LIE EOE IE MINE CARPE NAME BE RE REIT EB we gg rd

PEP GR ORIOL AO ERE De ERR SE ee ot nt Bre ~ a)

killing or assault, and then turning in his

associates in the venture to favored mem-

bers of law enforcement. These members of

law enforcement permitted Blair, despite

his violent criminal record of several

felonies, to carry a .357 Magnum pistol,

that he had been working with the police

department as an informer and had always

carried the gun. He claimed that the police

with whom he operated the joint unlawful

ventures would not vouch for him following

any arrest because they feared losing their

jobs. He also claims that when each case

was favorably disposed of, "the police

friends would return and even give him back

the pistol." All of this information is

clearly outlined in a recent probation

report dated July 22, 1975, after Blair

pleaded guilty to extortion in one of his

ventures which backfired on him where the

intended victim beat Blair to the wire

by informing police officer unconnected

with any of Blair's unlawful activities.

The probation report on Blair in this

unsuccessful venture ends with the

recommendation that:

"The fact that he has continued

with this type of activity is

10.

EEE ERE REDE UTE ENGL FE ELITE ION FREER BN VRY B oTPS

frightening. It is felt important

that defendant's violence potential

be evaluated and, if necessary, that

he be removed from the community for

a lengthy period of time."

A copy of this recent probation report

is made part of this record and marked as

Exhibit 10. The transcript of the Hearing

in that case is also part of this record

and marked Exhibit 9. The purpose is to

show the similarity of Blair's operation

in every particular. They are not indi-

vidual crimes but part of a common scheme

and plan which originated in Blair's own

mind, a scheme which he could not operate

without the cooperation of police

authorities,

According to the testimony of Blair in

the Municipal Court, the defendant Baspous

knew Blair as a collector of bad debts,

and Baspous being in the business of real

estate, it was suggested that they cooper-

ate in this kind of a venture to their

economic benefit as Baspous would know

people who were owed money. Without

describing his method of operation, Blair

claimed that he has his own "ways of

ai.

2

5

getting the money." (H.T. 18:5, Exhibit

1). Baspous was willing to cooperate in

the joint venture. He would dig up the

clients, Blair would collect the debts,

and both would profit. Finally Blair

called Baspous on the phone and told him

that he needed money, and suggested that

Baspous bring up a client (H.T. 20).

They set a date for the following night

at the Chef's Restaurant in Los Angeles

(H.T. 20218)

At this meeting Baspous told Blair

that he had a friend who had also a friend

who was owed “a lot of money," some

$250,000 in the nature of old coins.

Only Blair and Baspous were at this meet-

ing and the meeting was at the solicita-

tion of Blair. A meeting was arranged by

Baspous for the following night at the

same restaurant. The defendant Keith who

was supposed to be owed the money and the

petitioner attended this meeting. At this

meeting Keith revealed that one Donald

Benge owed him the money. Blair testified

that there were suggestions at the meeting

that Benge should be robbed and killed.

Keith gave to Blair Benge's name, address

and phone number. Keith said, according

12.

= . ecimeemneneen wn ee ee

rs, ee ee Se MOET Nate + Nmettign” | dee Of SIT WelP e -- “ . aie VES term

a ¥

:

to Blair, "Yes, he said he wanted the

money taken. He wanted Benge killed.

And he wanted the records destroyed and

bring in the money, and it would be split

50-50." (H.T. 9:25-28). This meeting

concerned discussions but there was no

agreement,

There was another meeting the follow-

ing evening at Denny's Restaurant in

Los Angeles. The same four people attended

but there was still no agreement on what

kind of action should be taken. Blair's

testimony at the preliminary hearing con-

cerning this meeting indicated no agree-

ment had been effected. He said (H.T.

43:5-14):

"I said well, I need some time,

you know. I got to see where the

guy's business is at, what he look

like and Mr. Keith said he had all

types of safes in the place, and

Mr. Baspous would cut in and say

well, they could be burglarized if

they had a certain combination, é

I_don't remember what else was said. :

He said four or five safes upstairs ;

several safes there altogether." ;

13.

a TPE LIE SLES SIE SEEMED IEE LON INES EEN GTE IEC EAP or _t

"Q. Who said that?

A. Mr. Keith."

At this point and time before any

agreement was effected, the petitioner,

Richard G,. Thurmer faded completely out

of the picture.

When the meeting in Denny's Restaurant

was over, the time had arrived for Blair

to put his own private extortion racket

into operation under "color" of law, and

at a profit which was the original objec-

tive in the first instance. But to be on

the safe side he first wanted to go to

Burbank where Benge resided to ascertain:

"If there really was going to

be a murder, if there was really a

Mr. Benge, if there was $250,000

of coins. I wanted to know if

this was a police set up. I

t - wanted to find out if this was

; true." (H.T. 24:9-12)

Blair went to Burbank in June 1974

after the petitioner had eliminated him-

self from the discussions, Blair met

Benge and told him that he had already

3 been paid to kill Benge. As a result he

wheedled out of Benge the sum of $1,100

14,

with the promise of greater sums in the

future. The Hearing Transcript shows

the following:

"Q. Is that the meeting which you

received $1,100?

A. That's the meeting I borrowed

$1,100 from Mr. Benge to go in my

coin business,

Q. What did you tell Mr. Benge about

your experience in the coin business?

MR. WATSON: I will object to this.

This is irrelevant.

THE COURT: Sustain.

A. Like I say we are going to go

into business together.

Q. Have you ever been in the coin

business?

A. No, I haven't. (H.T. 48)

BY MR. ANDELSON: (To the witness Blair)

"Q. You indicated you took $1,100

and $3,500 to put down on a building?

A. On the lease of a building.

(i.%. i2z2a}*

The testimony given by Blair that the

money paid him by Benge was to put Blair

in the coin business was deliberate

15.

perjury and it was perjury knowingly used

by the assistant prosecutor Watson because

Watson had this story checked and found

it to be false in 1974. Benge gave the

money to Blair to go into the liquor busi-

ness, not the coin business. Moreover,

as recent as July 29, 1975 Burley from the

office of the district attorney again con-

tacted Benge and Benge told Burley that

"JIMMY (Blair) made a statement to the

effect that he could use some money; that

he would like to go into a liquor store

or a coin business. BENGE stated to

BLAIR that it would be impossible to go

into the coin business because he did not

have the background for it nor the

finances. However, BENGE stated that he

would lend BLAIR $1,000 if he would go

into the liquor business,"

Undoubtedly the testimony of Blair

about going into the coin business was

concocted fiction in which official law-

lessness had its part. The prosecution

could not allow testimony by a thrice-

convicted felon that he enter the liquor

business. It is unfortunate that our law

enforcement agencies have become so eroded

16.

through some of the members to the extent

that such ventures are not only permitted,

but encouraged. Cf. United States v,

Archer, et al., (2nd Cir. 1973) 486 F.2d

670. For the purpose of economy and this

petition, the petitioner will not venture

into facts beyond the place and time where

he had abandoned all discussions in the

transaction. At this point petitioner

will proceed with the reasons why this

writ should be granted.

i7.

ee OT i eS

REASONS FOR GRANTING WRIT

l. Denial of Confrontation and

Cross-Examination

The first denial of confrontation and

cross-examination by the Municipal Judge

appears in the record of those proceed-

ings at pp. 33-34. The witness was Blair

who was, in fact, the sole witness in the

case up to the time that the petitioner

abandoned all participation in the dis-

cussions, and at which time no overt act

occurred. The denial was as follows:

CROSS-EXAMINATION

BY MR. VODNOY (Joint counsel for peti-

tioner and Keith)

Q. Mr. Blair, what is your birthdate?

THE COURT: That's irrelevant, counsel.

MR. VODNOY: So I can get a rap sheet.

THE COURT: That's irrelevant, counsel.

MR. VODNOY: I think the background--

THE COURT: That's irrelevant, coun-

sel.

MR. VODNOY: Mr. Blair, where do you

reside?

18.

THE COURT: That's irrelevant.

MR. VODNOY: Where do you work? Where

are you presently employed?

THE WITNESS: I am self-employed.

* * *

pp. 46-47

BY MR. VODNOY:

Q. Was that the meeting Mr. Benge

gave you $1,100?

MR. WATSON: I will object to the

word gave.

THE COURT: Objection to the form

of the question sustained.

Q. Is that the meeting which you

received $1,100?

A. That's the meeting I borrowed

$1,100 from Mr. Benge to go in

my coin business.

Q. What did you tell Mr. Benge

about you experience in the coin

business?

MR. WATSON: I will object to this.

This is irrelevant.

19,

PE OSM eel eS en

th eas

PLL GTR BASEL GF GO

THE COURT: Sustain.

BY MR. VODNOY:

Q. How is it you know Mr.

Burley? (D.A. Investigator)

MR. WATSON: Objection, irrelevant.

THE COURT: Sustain.

BY MR. VODNOY:

Q. Did someone tell you to go

to see Mr. Burley?

A. No one told me to go see

Mr. Burley.

Q. If you were going to wait until

after you talked to Mr. Benge's

lawyer and he said it was all

hogwash, why did you go to see

Mr. Benge?

MR. WATSON: Objection, it's

irrelevant.

aj! gid ry

F THE COURT: Objection will be sus-

tained.

BY MR. VODNOY:

Q. What did you tell Mr. Burley?

20.

%

SERA OIA PET AOD SEBS, PDT PRT, A REE LE

TELLS ES LPO NT ey Ee AEN TN IEE IO ty ee PEI EE PRS

Re RS OO ECE WO) MRR te Fa Yn CD OI Ay seeeenes

MR. WATSON: Objection, hearsay.

THE COURT: Objection will be

sustained.

* * *

pp. 72-73

MR. VODNOY: I have no further

questions other than the questions

that I asked that your Honor had

sustained the objections to.

THE COURT: What is that supposed

to mean?

MR. VODNOY: There is a motion to

dismiss on the grounds I am being

PRS PIT, ET OME

denied my right of confrontation

in regard to Mr. Blair's background.

THE COURT: Counsel, all you have

to do is request the People for a

8 DRI LO LLEP EA LIGNG ESM

rap sheet on this witness, and I

am sure they will furnish it to

you.

MR. VODNOY: I am not concerned

exclusively with his rap sheet but

his residence address.

THE COURT: Why are you so concerned

about the residence address? y

21.

Rew —

ne ARA ANI RTA TIED I LIN ROARS MONTE PS SEE IIIT OLA NE NI AN Oe IE LC ATR

MR. VODNOY: Smith v. Illinois.

THE COURT: Where he lives?

MR. VODNOY: I don't know if he is

living at the County Jail or at the

-- if the man is a collection man.

I think it makes a difference if he

is living at the Sierra Towers or

in Watts. There are avenues that

can be gone into. The Supreme Court

has made it clear I can't know where

I am going unless I have the answer.

I don't know where Mr. Blair lives.

My concern is only with respect

to perhaps opening an avenue of

inquiry on cross-examination. I

think the Supreme Court has made

it clear that counsel is entitled

to get background information

regarding the defendant because

quite obviously his credibility

is in serious question when it

comes to Mr. Thurmer.

THE COURT: Counsel, this is not

the time for argument.

MR. VODNOY: I am just saying --

THE COURT: The objections were

22.

eee SES PRT ht TE I NRE OS FRR US STURT TUN TS

Eau i es ee ~

sustained. They will remain

sustained.

The motion to dismiss is denied.

MR. VODNOY: All grounds? With

respect to Mr. Benge, my line of

inquiry on cross-examination was 7

curtailed by your Honor.

THE COURT: Motion to dismiss is

denied.

OER ORL ES

MR. VODNOY: Strike the witness'

testimony.

THE COURT: Motion to strike the

witness' testimony is denied.

MR. ANDELSON: For the record,

your Honor, for this proceeding

I would join in the motions.

THE COURT: Motion denied.

* * *

pp. 91, 100-101

BY MR. WATSON:

Q. Mr. Burley, what is your occu-

pation, sir?

A. Investigator for the District

Attorney's Office, Los Angeles County.

23.

¢

*

_——————E

BY MR. VODNOY:

Q. You knew Mr. Blair prior to

the day he came in on the 23rd,

is that correct?

A. Yes.

Q. When was it that you first

became acquainted with Mr. Blair?

MR. WATSON: Objection, it's irre-

levant.

THE COURT: Sustain.

MR. VODNOY: Your Honor, I am

going to make a motion to strike

this witness' testimony on the

grounds I have no right to con-

frontation.

THE COURT: You mumble. I can't

hear you.

MR. VODNOY: There is a motion to

strike the witness' testimony on

the grounds of denial of confronta-

tion. I think this man --

THE COURT: Counsel, you know

what remedy you have from the court's

ruling. The objection was sustained

24.

Secon EALERTS AEN

. Meg

soi chet Spend.

we.

and the motion to dismiss is

denied, and the motion to strike

is denied.

BY MR. VODNOY:

Q. Mr. Burley, did you ever make

any attempt to get in touch with

Mr. Thurmer?

A. What kind of attempt are you

referring to?

Q. Did you ever call him on the

phone?

A. No, I did not call him on

the phone.

Q. Did you ever instruct Mr. Blair

to make any attempt to get in

touch with Mr. Thurmer?

A. Not that I recall. There was

conversation to the effect that we

should have another meeting or

additional meetings.

Q. From the minute you got into

the case until the minute all the

defendants were arrested, did you

ever have any meeting or conversa-

tion with Mr. Thurmer?

25.

A. No, I did not.

Q. To your knowledge Mr. Blair

from the time you got into the

case ever have any meeting or

conversation with Mr. Thurmer?

A. Not to my knowledge, no.

* * *

Se. 223

MR. ANDELSON: My motion goes to

-- the People have not produced

credible witnesses. The court has

been unduly restrictive on the

cross-examination of Mr. Blair.

I move to dismiss.

THE COURT: Motion to dismiss denied

on behalf of Mr. Baspous.

ce) Sep a dat fe oe Be

MR. VODNOY: I make the same motion

on behalf of Mr. Keith.

THE COURT: Motion to dimiss is

denied.

Instead of cluttering up this petition

i with a heavy barage of the decisions of

: this Court to sustain the petitioner's

' plea that the writ of certiorari should

26.

be granted, the petition will merely out-

line and rely on Smith v. Illinois (1968)

390 U.S. 129 and Alford v. United States

(1930) 282 U.S. 687, where in both cases

the facts have a striking similarity to

those in the instant case. Every Justice

in this Court will agree with Dean Wigmore

when he strikingly states the absolute

essentiality of cross-examination when

he wrote that:

"(Cross-examination) is beyond

any doubt the greatest legal engine

ever invented for the discovery

of truth. However, difficult it

may be for the layman, the scientist,

or the foreign jurist to appreciate

this wonderful power, there has

probably never been a moment's

doubt upon this point in the mind

of a lawyer's experience. * * *

If we omit political considerations

of broader range, then cross-

examination, not trial by jury,

is the great and permanent contri-

bution of the Anglo-American system

of law to improved methods of trial-

procedure." (5 Wigmore, Evidence

1367, 3d ed.)

até

The two cases cited above fact-wise

practically identical with the facts in

this case should render it an easy task

for granting this Writ of Certiorari.

The facts in Smith v. Illinois (1968) 390

U.S. 129 which this Court reviewed were

simple. The following is from the record

of Smith:

"MR. PRIDE: (Defense counsel) Is

James Jordan your correct name?

MR. MARWICK: Object.

4

od

a

“”

5

3

a

MR. PRIDE: I have a right to know

if it is his correct name.

| THE COURT: He may answer if it is

his correct name or not.

A. No, it is not.

Q. What is your correct name?

MR. WARWICK: Object.

MR. PRIDE: This is material.

MR. WARWICK: Objection, Judge.

THE COURT: Yes, objection allowed."

Reversing the conviction in Smith v.

Illinois, supra, this Court said:

28.

"In the present case there was

not, to be sure, a complete denial

of the right of cross-examination.

But the petitioner was denied the

right to ask the principal prose-

cution witness either his name

or where he lived, although the

witness admitted the name he had

first given was false. Yet when

the credibility of a witness is in

issue, the very starting point

‘exposing falsehood and bringing

out the truth' through cross-

examination must necessarily be

to ask the witness who he is and

where he lives. The witness' name

and address open up countless

avenues of in-court examination

and out-of-court investigation.

To forbid this rudimentary inquiry

at the threshold is effectually

to emasculate the right of cross-

examination itself."

This brings us to Alford v. United

States (1931) 282 U.S. 687, 689.

29.

MR. FRIEDMAN (Defense Attorney)

"Where do you live, Mr. Bradley?

(People's witness)

THE COURT: I cannot see the mater-

iality.

MR. FRIEDMAN: Why, I think the jury

has a perfect right to know who the

witness is, where he lives and what

his business is, and we have the

right to elicit that on cross-

examination. I may say that this

is the first witness the Government

had called that they have not eli-

cited the address from.

THE COURT: I will sustain the

& objection.

Q. Do you live in Los Angeles?

MR. ARMSTRONG: That is objected

to as immaterial and invading the

Court's ruling.

THE COURT: I have ruled on that

question.

MR. FRIEDMAN: I will temporarily

pass on to something else. I would

like leave to submit authorities

30.

on my right to develop that on

cross-examination.

THE COURT: All right.

In reversing the conviction this

Court said in Alford v. United States,

supra, that:

"The present case, after the

witness for the prosecution had

testified to uncorroborated con-

versations of the defendant of a

damaging character, was a proper

one for searching cross-

examination. The question 'Where

do you live?' was not only an

appropriate preliminary to cross-

examination of the witness with

his environment, to which cross-

examination may always be directed."

The sole purpose of cross-examination,

whether in a preliminary examination or

in a trial court is for the ascertainment

of truth. There is nothing more impor-

tant at either stage of the criminal

proceeding than a thorough cross-examina-

tion. Prosecutors, or even courts who

restrain this truth-finding procedure in

3l.

violation of the Sixth Amendment and the

clear-cut unanimous decisions of this

Court are involved in official lawlessness.

"No distinction can be taken between the

government as prosecutor and the govern-

ment as judge. If the existing code does

not permit district attorneys to have a

hand in such dirty business it does not

permit the judge to allow such iniquities

to succeed." Holmes, J., dissenting in

Olmstead v. United States, 277 U.S. 438,

470. Blair has invented a new breed of

procedures for entrapment. In the ortho-

dox entrapment procedures the scheme

found its origin in the minds of the law

enforcement agents. In this newfangled

type of entrapment the scheme finds its

source in the mind of the informer. In

this way the informer schemes up the crime

he will commit for a cut in the loot and

during the process he will receive from

those he fenagled in as participants some

remuneration. He will then go to the

intended victim of the crime, tell this

intended victim he has been paid to kill

him or blow up his business. The victim

then pays off to be let alone. After the

32.

pay-off he then goes to his friends in the

office of the district attorney, squeals

on them that they had solicited him to

commit the atrocity, the law enforcement

agents allow Blair to keep the money

received from the extortion. In fact as

Burley testified in the instant case, they

do not even question him about it. When

the law enforcement agents give Blair a

gun and one of his schemes fouls up and

he gets arrested by police other than

those who are willing to participate in

the joint venture, after the matter has

been disposed of, the law enforcement

agents gives him the gun back. In fact

in some instances leniency has been recom-

mended by the assistant district attorney.

In the instant case and in others the

deputy district attorney claims that Blair

is not even an accomplice despite the fact

that the atrocity finds its source in

Blair's distorted mind.

33.

2. Denial of Effective Representa-

tion of Counsel

When the petitioner and defendant

Keith appeared before the judge in the

municipal court represented by a single

counsel, the court had a constitutional

duty and responsibility to make an

affirmative determination as to whether

these two defendants or one of them had

intelligently chosen to be represented by

the same attorney. This duty is no less

mandatory in such a case than if the

' defendants appeared without counsel at

§ all. in failing this duty and constitu-

tionally imposed responsibility, the muni-

cipal court lost its standing as a court

re

TAS

of competent jurisdiction. This duty was

thoroughly exemplified by the opinion

written by Judge Washington in Campbell

and Glenmore v. United States (1965) 352

F.2d 359. Judge Washington was joined in

that unanimous opinion by Judge Wright

and the now Chief Justice of the United

_ States, Mr. Chief Justice Berger where

_ it was said that:

Ste cet RRC RS AS

4 Pye

"When two or more defendants

are represented by a single counsel,

34.

s

the District Court has a duty to

ascertain whether each defendant

has an awareness of the potential

risks of that course and never-

theless has knowingly chosen it.

"The Supreme Court has

stressed the importance of having

separate counsel representing

co-defendants where their inter-

ests may not coincide. Glasser v.

United States (1942) 315 U.S. 60,

81. In our opinions we have sug-

gested that co-defendants are

‘entitled to be represented by

separate counsel. ... (if) there

was some inconsistency in joint

representation." Lebron v. United

States (1955) 299 F.2d 16, 20,

cert. denied, 351 U.S. 947 (1956).

We have also noted that defendants

are unlikely to be sufficiently

aware of their rights to object to

a possible conflict of interest.

Wynn v. United States, 275 F.2d

648, 649 (1960). And the Supreme

Court has stated that the trial

judge bears 'the duty of seeing

35.

ee Ma eee

sett gb edad

VE hana tana ab erie Bat teas Ot

te

that the trial is conducted with

solicitude for the essential rights

of the accused,' specially the

right to effective assistance of

counsel. Glasser v. United States,

315 U.S. at 71. The judge's

responsibility is not necessarily

discharged by simply accepting

the co-defendants’ designation of

a single attorney to represent

them both. An individual defen-

dant is rarely sophisticated enough

to evaluate the potential conflicts,

and when two defendants appear

with a single attorney it cannot

be determined, absent inquiry by

the trial judge, whether the attor-

ney has made such an appraisal or

has advised his clients of the risks.

Considerations of efficient judi-

cial administration as well as

important rights of defendants are

served when the trial judge makes

the affirmative determination that

co-defendants have intelligently

chosen to be represented by the

same attorney and that their

36.

decision was not governed by

poverty and lack of information

on the availability of assigned

counsel. We must indulge every

reasonable presumption against the

waiver of the unimpaired assistance

of counsel. Glasser v. United

States, supra, at 70. ...If

Glenmore had been represented by

his own counsel, for example, he

might well have cross-examined

Campbell on his assertions that he

was with Glenmore all through the

evening of the robbery.

"We are not setting up a rule

that each co-defendant must be inde-

pendently represented in every case.

We hold only that a trial judge has

a responsibility to assure that

co-defendants' decision to proceed

with one attorney is an informed

decision. Since the trial judge

herein apparently failed to fulfill

this responsibility and Glenmore

was clearly prejudiced by the fact

that he shared an attorney with his

co-defendant, his conviction must

37.

ae

oe wey Be acne Wl

be reversed." (Underscoring

supplied)

Ground for conflicts of interest in

the case at bar were not only potential

but actual, and this was well known by

the prosecution and the counsel who repre-

sented the defendants jointly. We are

confronted here with a situation where

the evidence as to Keith did "disclose

his participation." This was a statement

by the attorney for both defendants, and

he was aware of this before any hearing

was had. He had the facts from the defen-

dants. The transcript of the Hearing at

page 112, Exhibit 1, reveals the follow-

ing:

"His (petitioner's) role, if

any, was a mere preparation. Just

conversation, and I don't think

there is any demonstration here

that Mr. Thurmer has continued on

with the conspiracy.

"I also represent Mr. Keith.

I do not make that argument in

his favor because I think the

evidence at this stage does

38.

disclose his participation. I

simply don't see there is evi-

dence other than one meeting prior

to the police coming in and prior

to any tapings."

The point is that Attorney Vodnoy

knew of this conflict when he took on the

case as both defendants told him of the

roles they occupied. The prosecutor knew

also. The glaring point in the case was

and is that petitioner left the stage long

before any overt act was committed. Lis-

tening to discussions does not constitute

an overt act and Mr. Vodnoy and the prose-

cutor know this. It was subsequent to

petitioner's abandonment of participation

in the discussions that an overt act was

committed, such as renting a truck to

carry away the loot sought to be seized.

This second question concerning the

effective representation of counsel is

inextricably bound with that of the first

question in the foregoing. This Court has

held that a person accused of crime

"requires the guiding hand of counsel at

every step in the proceedings against

him." Powell v. Alabama, 287 U.S. 45, 69;

39.

—

Nos neoaeGa

Coleman v. Alabama (1970) 399 U.S. l.

"It calls upon us to analyze whether

potential substantial prejudice to defen-

dant's rights inheres in the particular

confrontation and the ability of counsel

to help avoid that prejudice. United

States v. Wade, 388 U.S. 218, 227.

Applying this test, the Court has held

that ‘critical stages' include the pre-

trial type of arraignment where certain

rights may be sacrificed or lost, Hamilton

v. Alabama, 368 U.S. 52, 54." Coleman v.

Alabama, 399 U.S. 1, 8. It has been well

established that the guiding hand of

effective counsel at the preliminary hear-

ing is essential to protect the accused

against an erroneous or improper prosecu-

tion as in the instant case exists. Re-

ferring again to Coleman v. Alabama, supra,

_ at 9, the Court said:

"First, the lawyer's skilled

examination and cross-examination

of witnesses may expose fatal weak-

nesses in the State's case that may

lead the magistrate to refuse to

bind the accused over. Second,

in any event, the skilled interro-

gation of witnesses by an experienced

40.

lawyer can fashion a vital impeach-

ment tool for use in cross-examina-

tion of the State's witnesses at the

trial, or preserve testimony favor-

able to the accused of a witness

who does not appear at the trial.

Third, trained counsel can more

effectively discover the case the

State has against his client and

make possible the preparation of a

proper defense to meet that case at

the trial. Fourth, counsel can also

be influential at the preliminary

hearing in making effective argu-

ments for the accused on such

Matters as the necessity for an

early psychiatric examination."

We are confronted with a situation

here where the petitioner had on two

occasions was present and probably to

some extent participated in-some conversa-

tions concerning the collection of alleged

debts, but where no overt act existed in

the suggested process of collecting these

debts, and at which point the petitioner

faded out of the picture and this is even

admitted by the testimony on the witness

41.

Blair. On the other hand we have a defen-

dant Keith who continued with the discus-

sions after petitioner had abandoned the

proposition, and continued in an active

participation of the proposed scheme. It

was after the petitioner had abandoned

the discussions that Blair went to see the

intended victim, took from this intended

victim a large sum of money and then

reported the entire matter to his friends

in law enforcement as he had intended to

do in the first instance as the scheme

originated in his mind. In so far as

Blair was concerned his plan was a success

as intended at the outset. He had accom-

plished the efficient result of the plan.

On the other hand the transaction was a

dismal failure to Keith and Baspous.

Under the circumstances in this case

where the petitioner who had abandoned

the early discussions in the matter, and

where Keith continued not only in the dis-

cussions but in the implementation of what

was agreed as the plan, that these two

defendants could be effectively repre-

sented on a criminal trial concerning the

matter would be a preposterous, monstrous

42.

PRG SAMS IIE NG BY NETBALL NAIR REN

and absurd conclusion. There is not now,

and there never has existed in this coun-

try any lawyer who could rightfully carry

on such joint representative where such

wide conflicts of interests existed

between two defendants in the same case.

This case reveals far more conflict

of interest that the decisions of this

Court or law requires to warrant the

granting of a Writ of Certiorari. In

fact the conflict is so glaring that the

writ could be granted and the judgment

reversed and the petitioner ordered dis-

charged without the submission of briefs.

On the confrontation and right to cross-

examination question there is no escape

from the decisions of this Court in Smith

v. Illinois (1968) 390 U.S. 129 and Alford

v. United States (1931) 282 U.S. 687. on

the question raised in this second con-

sideration there is no escape from the

decision and rulings in Glasser v. United

States (1942) 315 U.S. 60 and the case

which is practically identical with the

instant in Campbell and Glenmore (1965)

352 F.2d 359 in which the Chief Justice

of this Court participated in.

43,

is es DAS

The law does not require the showing

of an actual conflict. It is enough that

the potential for conflict exists because

the conflict could be latent as innumerable

intangible factors remain unseen. The

petitioner can find no case where two co-

defendants, even where they were brothers,

with economic substance have ever been

represented in a criminal case by the same

counsel. Counsel for each defendant can

employ tactics in the best interest of his

defendant, including assault on the other

defendant, but he cannot do so if he has

to consider the interest of such defendant.

Invariably where a potential conflict

exists between two defendants represented

by the same counsel, especially where

conspiracy is charged, it is not what the

lawyer does is the vice but what he cannot

do is the danger. In Campbell v. United

States, 352 F.2d 359, if Glenmore had been

represented by independent counsel that

attorney, by the very nature of the charge,

_ would have cross-examined Campbell on his

assertions that he was with Glenmore all

through the evening of the robbery. But

' the defense counsel, because of the con-

flict potential was precluded from arguing

44,

that Glenmore's participation was not

proved lest it appear that he was entering

a claim conceding the guilt of Campbell.

Mr. Vodnoy in the instant case dared not

make any substantial effort to disassociate

the petitioner from the defendant Keith,

against whom counsel conceded a more suf-

ficiently legal case. In the case of Keith,

there was ample corroboration as required

by the accomplice California statute, but

in the case of the petitioner there was

no such corroboration.

The joint counsel in the instant case

was obviously unwilling to stress the

differences cited above. Moreover, the

judge in the municipal court was deter-

mined to protect his scoundrel Blair to

keep his whereabouts secret as discussed

in the first consideration here. Many

illustrations of counsel's dilemma are

apparent. It would have been impossible

for the attorney for both defendants to

suggest that statements allegedly made by

petitioner were, in fact, actually made by

Keith, and therefore that the petitioner

was neither solicitor of the criminal acts

nor a conspirator. The record shows that

45.

Blair was a perjuror. He claimed that

Benge gave him a large sum of money to go

into the coin business while in truth the

money, according to Benge, and the district

attorney's investigation, was for the pur-

pose of going into the liquor business,

and this perjury was knowingly used by

the deputy district attorney Watson.

Further, it could not be anticipated that

the same counsel would have presented a

defense in behalf of petitioner when it

would in all likelihood strengthen the

case against his other client, Keith.

For all these reasons, the petitioner was

deprived of the effective assistance of

counsel, and the commitment order was

void and of no force.

46.

3. Perjury Knowingly Used By The

Prosecution

Unquestionably, the deputy prosecutor

and Blair's investigator friend, Burley

were fully aware of Blair's extortion

racket. Burley had arrested Blair some

two and one-half or two years earlier.

But when the defense attorney pursued this

further the court struck the record. It

went as follows:

BY MR. ANDELSON: (Defense attorney)

"Q. Mr. Burley came in at that last

meeting; when did you first meet

Mr. Burley?

A. I don't know, two-and-a-half,

three years ago.

Q. Did Mr. Burley arrest you at

that time?

A. Yés, he did.

MR. WATSON: I am going to make a

motion to strike for the purposes

of an objection. It is irrelevant.

THE COURT: Motion to strike granted.

Objection sustained."

BY MR. ANDELSON:

"Q. Have you been convicted of any

felonies, Mr. Blair?

47.

EEL NTR ALITA LEME DE LILLE NED LE II EI NILE RE CAEL Ge SAI Ssh , pe ee OTE lk Ne Sanaba 2 rs G83

be

ay

+

a

4

A. Yes, I have.

Q. One or more?

A. More.

Q. What felonies have you been

convicted of?

A. Robbery, second degree, carry-

ing concealed weapon. Those are

the ones I have been convicted of.

Q. And was that in this state,

California?

A. Yes, it was.

Q. Were you arrested under the name

of Jimmy Blair?

A. Yes, that's correct.

Q. Do you recall at the last court

appearance when the case was con-

tinued to today that you saw me

walking out of the courtroom and

had a conversation with me?

A. Uh-huh, that's correct.

Q. In that conversation did you

tell me that you were mad because

Mr. Benge hadn't paid you the

$5,000 he promised to pay you?

A. No, sir, I did not state that

to you.

Q. Did you tell me about the $1,100

at that conversation?

48.

4

i

4

i

i

AGRE TI SOLE ARMOR TE PPT PAR RIE Oe PRAT SL TaN

2 Se EERE

|

(

A. No, I didn't mention any money.

I said that I was bored with coming

to court. I was mad because we

didn't get in court. It was not

the mention of any money.

Q. Have you received any money from

Mr. Benge in the last five days?

A. Have I received any money from

Mr. Benge?

Q. Yes.

A. No, I haven't.

Q. Did you tell me at that conver-

sation that Mr. Benge promised you

$5,000 to put Mr. Baspous, Mr. Keith,

Mr. Thurmer away?

A. Would you repeat that?

Q. Did you tell me that Mr. Benge

promised you $5,000 to put Mr.

Baspous, Mr. Keith, Mr. Thurmer away?

A. No, sir, I did not state that.

THE COURT: That conversation were you

wired, Mr. Andelson?

MR. ANDELSON: I wish I was, your

Honor."

The deputy prosecutor Watson objected

to this line of questioning and as usual

49,

" ; ier eT EER

‘ie pte Aegina bn GTI Smisek

Si eid he tts

the court sustained the objection. (H.T.

pp. 29-30, 31)

Throughout all of the direct and cross

examination of the People's witness Blair

in the Municipal Court, Blair was obliged

to stick to the absurd concocted story

that the money he received from this Benge

and what Benge promised him would be later

received was to enable Blair to go into

the "coin business" of which Blair was

completely ignorant (Exhibit 1, Hearing

Transcript, pp. 25, 27, 47, 53, 54). But

absurd as this story was, it served the

prosecution better for the purpose of in-

justice than the truth. But now when

Blair has been convicted for extortion in

a similarly concocted transaction, and it

is laid on the record that Blair has been

confessed to a series of planned unlawful

atrocities in cooperation with state

agents as evidenced from his probation

report completed on July 22, 1975, out-

lined in pages 9 and 10, Exhibit 10, the

prosecution should change the concocted

"coin" story and substitute it with a

"liquor business" story that:

50.

Petrie nusn

HO. 3

"Benge stated to Blair that it

would be impossible to go into the

coin business because he [Blair]

did not have the background for

it nor the finances. However,

Benge stated that he would lend

Blair $1,000 if he would go into

the liquor business."

Here we have an instance where the

investigator for the prosecution impeaches

the prosecutor's own witness. The point

is that the prosecutor knowingly used the

perjury in the first instance. Blair's

police friend Burley was expressly sent

to Benge to procure such an impeachment

when it became inevitable that Blair was

going to state prison for a long spell

despite the recommendations of the deputy

prosecutor Watson. Blair can now insti-

gate a "Watergate" in his own small way.

It is inherent in his very character and

background to so do. Ultimately he will

expose all of his joint illegal ventures

with the law enforcement officers. The

process has already begun in the probation

reports. Only the names of the partici-

pants are omitted. If we take this recent

evidence as true, then Blair's testimony

51.

SASS LAI CPN LEE NE ANDES INE RO a

during the Hearing in the Municipal Court

was perjury, and it was perjury knowingly

used by the prosecution. The “coin busi-

ness" story was absurd in the first in-

stance. The "liquor business" story which

now replaces the "coin busines" one is

equally absurd as by no stretch of the

imagination could Blair with several fel-

ony convictions legally operate any

"liquor business." The true facts might

have been adduced, and the perjury exposed,

if the judge in the Municipal Court had

not hamstrung the efforts of the defense

counsel on cross-examination. It is a

peculiar quirk this case has taken that

officer Burley, the friend of Blair, be

sent out to Benge so that Benge could im-

peach the prosecutor's only witness

against this petitioner. The new state-

ment taken from Benge is contained in the

record herewith and marked Exhibit 1, at

pages 84-85 for this Court's Examination.

There can be no doubt that the facts

’ already available places this case within

the purview of Mooney v. Holohan, 294 U.S.

+103 (1935), that a violation of due pro-

i cess has occurred where perjured testimony

52.

PEF EI GE ILO DIES EE PEGI LES EDL AINE DE EINES 5 OEE IN RE BS SOR ES a

PITA yeas.

¥ Te geet IGE top

Re eet Ae ee Se tk re ir ee Sees en > eS tee ee Une a Seg ema et ee nee ed ee

was knowingly used by state officers in a

criminal trial. The fact of this new turn

of events only occurred on July 29, 1975,

the same day that Blair was arraigned for

sentence on the extortion charge. For

that reason this matter was not brought

before the Supreme Court of California

when a petition was made for the writ.

However this Court "may issue all writs

necessary or appropriate in aid of [its]

jurisdiction and agreeable to the usages

and principles of law." (Section 1651,

Title 28, United States Code. Adams v.

United States ex rel. McCann (1942) 317

U.S. 269, 143 A.L.R. 435; Ex parte

Abernathy (1943) 320 U.S. 219.

People v. Steele (1946) 65 N.Y.S.2d

214 is illustrative of the finding that

perjured testimony was knowingly used by

the prosecution officer. The court found,

as is quite evident in the instant case,

that the assistant district attorney know-

ingly misled the court to believe that at

the time he had seen the witness she was

at his office; whereas in fact he had met

her in the Hotel Edison. The court held

that if these facts had been adduced, the

53.

:

é

é

3

credibility of that particular witness

and other witnesses might have been af-

fected by her answers and this hamstrung

the efforts of the defense on cross exam-

ination. The Court said: "The defendant

was deprived of his right to a fair and

impartial trial. Due process of law,

which the Constitution guarantees, was

denied him." People v. Steele, 65 N.Y.S.

: 2d 241, 221 (1946). See, also Alcorta v.

) Texas (1957) 355 U.S. 28; Napue v. I1li-

_ nois, 360 U.S. 264 (1959). The use of

4 false testimony is by nature the suppres-

sion of truth. United States ex rel.

- Almeida v. Baldi (1952) 195 F.2d 815, 33

_A.L.R.2d 1407; Pyle v. Kansas (1942) 317

fu.S. 213.

4. Right to be charged by presenta-

; tion or indictment of a grand jury

instead of information is a privi-

lege guaranteed by the Fifth Amend-

ment of the Federal Constitution.

4

%

Since the California Constitution,

Article 1, section 3, adopts the

Constitution as "the supreme law

of the land," to pass constitu-

tional muster we must read into

54.

Article 1, section 8, which provides

that "Offenses heretofore required

to be prosecuted by indictment shall

be prosecuted by information" that

a waiver of the Federal right must

be express or implied on the record.

Otherwise this part of Article l,

section 8, of the California Consti-

tution is void and of no force. The

petitioner advances the same claim

here in the instant case as did Mr.

Justices Murphy and Rutledge when

dissenting in Adamson v. California

(1946) 332 U.S. 46 at 124-125:

"I agree that the specific guarantees

of the Bill of Rights should be car-

ried over intact into the first sec-

tion of the Fourteenth Amendment.

But I am not prepared to say that

the latter is entirely and neces-

sarily limited by the Bill of Rights

Occasions may arise where a proceed-

ing falls so far short of conforming

to fundamental standards of proce-

dure as to warrant constitutional

condemnation in terms of a lack of

55.

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te CA et

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due process despite the absence of a

specific provision in the Bill of

Rights."

In Hurtado v. California (1884) 110

U.S. 516, this Court held that the Due

Process Clause of the Fourteenth Amendment

did not even require "indictment or pre-

sentation of a Grand Jury," in a state

prosecution for murder in the first degree.

The amazing character of this holding is

apparent when one considers what was com-

prehended by the "Due Process" guarantee

in the Fifth Amendment in 1791. In 1786,

before either this amendment or the Con-

stitution had been drawn up, Alexander

Hamilton observed of the phrase "the law

of the land", in the thirteenth article

of the Constitution of New York then in

effect, that "the best commentators' ex-

plained this phrase as meaning ‘due pro-

cess of law;*that is, he said, ‘by indict-

ment or presentment of good and lawful

men; and trial and conviction in conse-

quence." Hamilton IV, 231-32, The Fed-

eralist. Hamilton derived his idea from

Sir Edward Coke, one of "the best commen-

tators" he mentioned. It was recognized

56.

then, as it is today that Coke's identi-

fication of "due process of law" with the

phrase the "law of the land" in Magna

Carta, and his definition of both phrases

had the significance that Hamilton quoted.

See, Politics and the Constitution, Vol.

2, by Crosskey 1104-1105. Chapter XxXxXI,

The True Meaning of the Fourteenth Amend-

ment. Moreover, Rawle, Kent and Story,

writing in the 1820's and 1830's, had also

recognized that "indictment or presentment

by a Grand Jury" was part of the content

of the phrase "due process of law," em-

ployed in the Fifth Amendment. The dis-

tortion by Justice Matthews in his opin-

ion in Hurtado was long and labored; for,

after all, it is not an easy task to prove

what is not true. Both the Fourteenth

and Fifth Amendments were component parts

of the same instrument, so the presumption

of continuity in meaning and terms in the

exact same document was not rebutted. No

plainer case subject to the same elemen-

tary principles of Supreme Court construc-

tion which it had avowed repeatedly, could

not then have been imagined. So Justice

Matthews took, and the court majority

57.

slavishly accepted. This was a case

where the Supreme Court of the United

States was at the lowest ebb in its his-

tory, and at its worst. Crosskey,

Politics and the Constitution, Vol. II,

Chapter XXXII, The Supreme Court's Trans-

formation of the Fourteenth Amendment.

Mr. Justice William O. Douglas, if

not the greatest, one of the greatest

that ever sat in the Supreme Court of the

United States or in any court in the world

for that matter, posed the question very

clearly in 38 New York University Law

Review 207, 219 (1963) where he wrote The

Bill of Rights is Not Enough. The Justice

said:

: "The First Amendment is said to

| be incorporated into the Due Process

Clause of the Fourteenth Amendment.

So are the Fourth Amendment, the Just

Compensation Clause of the Fifth

Amendment; and so are the right to

a public trial, protection against

cruel and unusual punishment, the

right to be free of coerced confes-

sions, and the right to counsel in

the more serious criminal cases.

58.

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What justification can be made for

this selective picking and choosing,

bringing some guarantees into Due

Process and leaving others out? No

convincing answer has yet been made

to the position of the first Mr.

Justice Harlan in Hurtado v. Cali-

fornia 110 U.S. 516, 541 (1884),

that what is Due Process in terms

of the Fifth Amendment should be

Due Process in terms of the Four-

teenth.

"Due Process, to use the vernacular,

is the wild card that can be put to

such use as the judges choose.

Those who use it as the wild card

often deny doing so, saying that

Due Process is not subjective, that

it has roots in civilized ideas of

ordered liberty. Yet no matter what

the judges say, Due Process, as it

is presently employed, is fickle and

capricious. Its highly subjective

and personal character is illustrated

by Rochin v. California, 342 U.S. 165

(1952) holding that evidence obtained

39.

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by forcible use of a stomach pump on

a suspect violates Due Process, and

by Breithsupt v. Abram, 352 U.S. 432

(1957) holding that evidence obtained

by taking blood from an unconscious

person does not."

See, also, Douglas, Vagrancy and Ar-

rest on Suspicion, 70 Yale L.Jour. 1

(1960); Mr. Justice Brennan, Jr., The Bill

of Rights and the States, 36 N.Y.Un. L.

Rev. 761, 778 (1961); Mr. Justice Black,

The Bill of Rights, 35 N.Y.Un. L.Rev.

865-881 (1960); Id. A Constitutional

Faith (1968); Alfred A. Knopf, New York;

Flack, The Adoption of the Fourteenth

Amendment (1908); Brant, The Bill of

Rights. Its Origin and Meaning; Crosskey,

Politics and the Constitution; Rights of

Our Fathers, Antieau; Civil Rights And

State Non-Action, 34 Notre Dame Lawyer,

303-334; The First and The Fifth, Rogge,

O. John; Searching For The Intent of the

Framers of the Fourteenth Amendment,

Kaczorowski, Robert J., 5 Connecticut L.

Rev. 368-398.

60.

PR sede — |

THE WRIT OF CERTIORARI SHOULD BE GRANTED,

CONCLUSION

September 29,

Respectfully Submitted,

RICHARD G. THURMER

Petitioner

Attorney for himself

820 Chestnut Avenue

Los Angeles, CA 90042

(213) CL7-1433

ASSISTED BY:

HARLAND W. BRAUN

Attorney at Law

1801 Century Park East

Los Angeles, CA

(213) 277-5800

FRANK O. WALTHER

130 Booth Lane

Haverford, Pennsylvania

(215) MI9-0542

Attorney for Petitioner

1975

61.

APPENDIX

ORDER DENYING WRIT OF HABEAS CORPUS

Criminal No. ..... 8762

IN THE SUPRE « COURT OF THE STATE OF CALIFORNIA

IN BANK

ee eo z= SS

In re. THURER donde =

on Habeas Corpus.

Petition for writ of habeas corpus DENIED.

SUPREME COURT

FILED

ue $= 1975

@. 8. niSheL, Clerk

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