Respondents Brief — Adams v. Illinois

Supreme Court brief1972

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Question. Presented .......... 00.000. cr oneeuctieges 1

Statement of the Case & pe seuacetegteeee oe 2

Summary of Argument ee ny snde wns an teeweeeos 1Q

| Argument wing sim ante et ger oy tes ieee ce <asaeeus revee 1S

I. The Application Of Coleman v. Alabama - aan

- Should Be Restricted To Cases In. Which Pre- .

. liminary Hearings avers nen After June 22,

1970 ah SNE Se a ew OS ke Owe «5 SO 4s kee se ee an 13 "

sees Introduction seb eg he nese hdieandsgtoaues 0

“ -B. The purposes served by- the/ right to

counsel at preliminary hearings: do not -

mandate retrospective’ application ' of

Coleman v. Alahama................ ae. 17

C. There was substantial justified. reliance

_ on the proposition that counsel was not

required at preliminary hearings where

neither the acts. nor the. omissions - of

defendant could be used ‘against him at

trial ..........00. Vege en eees Gseyentaea, of

D. The effect on the administration of just-

ice of a retrospective application of.

Coleman v. Alabama would be substant-

ial and highly undesirable Sassesasaees GE

E.° Conclusion Rees i665 <00 4 ct oes ease eeu uss 34

‘ II. Coleman v. Alabama Should Not Be Applied

To This Case Even If It Is Held To Be Fully

Retrospective Shee PEAR GRR OHS bean 4s chess Opes 35

€

Conclusion Use se ioneesageeyewnees thes cn Pitas seaee 36

“ia,

CITATIONS

& ; : Py

__ Casgs:

. Akins v.. State, 243 So. 2d 385 (Ala. Crim. ‘App. 1971) 34 .

Allred v. State, 187 So. 2d 28 (Miss. 1966) : Fo eeeaes 29

Angelet v. Fay, 381 U.S. 654 (1965) .....60..6646- 140

Arsenault v. Massachusetts, 393 U.S. 5 (1968) ..... 16 «

“Ashe v. Swenson, 397 U.S. 436 (1970) ....... a 16

: Augenblick v. Umted States, 393 U.S. 348 (1969) .. 21 —

Berger Ve California, 393 US. 314 (1969) cecxscesse. 10

Billings vy. State, 10 Md, App. 31, 267 A. 2d 808 —

eee (i) eereerrererr erect re ere eer 34

' Branch vy. State, 445 SW. 2 756 (Tex. Crim. App.

OOD exis ve hn Oe 5 cee ans a4 ee 4566ug tana see eess 30

’ Brown v. Craven, 438 F. 2d 334 (9th Cir. 1971) . 34 |

. Butler v. Burke, 360 F. 2d.118 (7th Cir. 1966) ...¢. 31

Clewis v. Texas, 386 U.S. 707 (IDG) dics cane | ¢ ; 21

Coleman v. Alabama, 399 U.S. 1 (1970)..-......J.

peestcoceso cdl, 17, 18,21, 24, 25, 26, 28,.31, B35 34; 35

Coleman v. ‘State, 211 So. 2d 917, 44 Ala. App. 429

» (1968), rev’d, Coleman v. Alabama, . 399 US. 1 a

G1) 28

‘Colling,v. Markley, 346 F.2d 230 (7th Cir. 1965) . 8

‘Commonwealth v. Brown, 217 Pa. Super. 190, 269 A.

2d. 383 (1970) Chokes pease aiieaoes maces eth 30, 35

Commonwealth v. Frye, 433 Pa. 473, 252 A. 2d 580

(1969), cert. denied, 396 US. 932 (1969) ..,..... 29

Commonwealth v. James, 440 Pa. 205, 269 Ko 24 383

(1970) ...005.. Sec aathu plgeseguseysastunes weeee BBS

Gi. |

- Commonwealth v. ‘O'Leary, 347Mase. 387, 198 NE.

Md 403 (1964) occ ccc cece ence deeeeeueeee. 29

Costello v. United States, 350 ‘US. 359 (1956) | ‘acess OO

- Crouch v. State, 24 Utah 2d 126, 467 P.. 2d 43 (1970) 30

- Crow v. Coiner, 323 F. Supp. 555 (N.D.. W. Va. 1971) 34°

Daegele v. Kansas} 375 U.S. 1 (1963) ...... menawy . 13

hail v. United States, 394 US. 244 £1969) as

ee ee ee ae .16, 1, 19, 33, 347

DeStanfano Vv. Woods, 392 US. 631 (1968) Jove wes 16

-DeToro v. Pepersack, 332 F. 2d 341 (4th Cir. 1964) 31

Duffield v. Peyton, 209 Va. 178, 162 SB. 2d 915 |

(1968) ooo i cece e ese lecececbecseueuecececeeeeees 30

Dorrough v. State, 452 P. 2d 816 (Okla. Crim. 1969) 29

‘Douglas: v. California, 372 US. 353 (1963) ......... 13

' Eskridge v. Washington State Board wf Prison Terms |

and Parole, -357 U.S. 214 (EQOO) een steeea sc cetes 13

Freeman v. State, 87 Ida. 170, 392 P. 2d 542 (1964) 29 6

Fuller v. Alaska, 393 US. 80 (1968) ..........:... 16

Gasque v. State, 271 N.C. 323, 156, S.B. 2d. 740, cert. :

denied, 390 U.S. 1030 (1967). ..... eeadectessa ced 29 -

Geordenello v. United States, 357 U.S. 480 (1958) .. 24

Gideon v., Wainwright, 372 U.S. 335 (1963) ...... 18

Gilbert v. California, 388° U:S. 263 (1967) .........10, 25

Griffin v. Mlinois, 351 use (1956) ............18, 38

Halliday v. United States, 394 U.S. 831 (1969) .... 16

Hamilton v. Alabama, 368 U.S. 52 (1961) .. UL, “on, 27

Harris v. Neil, 437 F. 2d 63 (6th Cir. 1974) aeccee OF

Headen v. United States, 115 US. App. D.C. 81, 317

- ad ia (1963) rete eee gteeeeeeceeeeeeetenees BL

cs | ae on S

ai e

|, Hill v. California, 451 U.S. —, 915 8. Ct. 1106 (1971) .16

~ Howard v. Commonwealth, 446 S.W. 2d. 293 {Ky. 4969) 29

Jenkins v. Delwware, 395 U.S. 213 (1969) ........... 16.

.-Johnson-x. Newdersey; 384 U:S: T19°(1966) -——--- se

3 14, 15, 18, 19, 25

Cre New York, 394 U.S. 280 (1969) ......0.. . 16

Katz v. United States, 389 U.S. 347 (1967) ........ 33

Kitchens v. Smith, 401 US.:—, 91 S. Ct. 1089: (1971) 35

K onvalin v. Sigler, 431 F. 2d 156 (8th Cir.:1970)

‘27, 30, 33, 34

Latham v. ‘Crouse, 320 .F? 2d. 120 (10th Cir. 1963),

cert. dented 375 U.S. 959 (1963) ....... eee cece eats 31 -

Lee v. Florida, 392U.S. 378 iy a ea, 16

Linkletter -v. Walker, 381 U.S. 618 (1965) onbeee es 10, 14

Locke v. Erickson, 181 N.W. 2d 100 (S.D. 170). ..30, 33, 35 .

Mackey v. United States, 401 US. —, 91 S. Ct. 1160 .

(1001) anctuseonecamte aoc. Cea ed vases see ceewe 16.

Malignaro v. Balcom, 21 Ga. 150, 143 S.E.. 2d 749

sa . (1965) la Hig Rangeela imei Seta eo 6 beeen eee e ees 29

Mapp v. Ohw, 361 U.S. 643, (1961) aeaae see ao age 10 -

‘Marten v. Coiner, “299 F. Supp. 553 (S.D. W.Va. 1969) 30

McConnell v. Rhay, 393 U.S. 2 (1968) ~ errr re eee 16

” < Merrill v° State, 423 P. 2d 686 (Alaska 1967 > cert.

denied 386 U.S. 1040 (1967) .,.........ceces ee eee 28

Miranda v. Ariaona, 384 U.S. 436 (1966) ..16, 25, 29%) 32

Montgomery-v. State, 176 So. 2d 331 (Fla. can cert.

denied, 384 US. 1S 0S) 29

Nadeau v: State, 232 A. 2d 82 (Me. 1967), vacated on

rehearing, 247 A. wes (Me. 1968) .....:..:. -. 2

—

Noe v. Cox, 320 F. Supp. 849. (W.D. Va. 1970) ..... 34

Olsen v. Ellsworth, 438 F. 2d 639 (9th Cir. 1971) . 34

Pagan: Cancel v. Delgado, 408 F. 2d 1018 flrs Cir. a

.. Paynev>-Warden, Nevada State’ Prison, 85 Nev. 64 |

461 P. 2d 406 (1969) 2.0 ...0eccvecceeeseeeeeee 29.

Pické lsimer v. Wainwright, 375 U.S. 2, 3 (1963) . 13

People v. Bernatowicz, 35, Til. 2d 192, 220 NEL 2d .

TAS (1966) 2... ee ees ecceccecceceeceeceeeeecees 21

People v. Bonner, 37 Ill. 2d 553, 229 N.E. 2d 527°

(1967), cert. denied 392 U.S. 910 (1968) 9, 21, 23, 25, 28

People v. Bryan; 3 Cal. App. 3d 327, 83 Cal. Rpts. -

ZOL~ (1970) anni cc cccccccccccncccccctecssccecces 28

People v. Buzan, 351 Ill. 610, 184 N-E. 890 (1933) 22,

People v. Gerold, 265 Ill. 448, 107 N.E. 165 (1914) . 2

People v: Givane, 83 Nl. App. 2d 423, 228 N.E. 2d 123 ©

(1967) 20... eee We ietee ceteet er sawscamis - 23

People v. Johnson, 31 Dl. 2d 602, 203. .N.E. 2d 399

- (1964) .... peesbeseyesse ee rr err eres ee 22

People v. Jones, 75 Til. -App.. 332, 221 N.E. 2d 29 -

"UADOG) si se ye ace oo Sea wenawssaces sececherees. 23 |

‘ People v. Jones, 19 Ill. 2d 37, 166 N. E. 2d 1 (1960) 23

People v. Morris, 30 Til. 2d. 406, 197 NE. 24 433

(1964) ..... bp eeew asase dae eeeeee = wae suse 8, 23, >

People v. Moses, 11 Ill. 2d ‘84, 142 NE. 2d 1 (1957)...

People v. Petruso, "35 Mil. 2d°578, 221 N.E. 2d 276

(1966)... eee ececceecececceecuce. beoseslesevsbers 23

People v. Ritchie, 36 Nl. Od 399, 222 NE. 2d 419

| (1967)... pentedowseunestans becevecseveceins 23

‘Vi.

(1967) Pee eTer TT rere ere ery eee eT Cer T ery 29

. People v. -Veldez, 72 I. App. 2d 324, 214 NE. 2d |

«= 675 (1966) ..... Saaeetedbeveesses sas deteveces os. 23

People v. Watson, 36 mi. 2d 288, 221 N.E. 2d 645 -

CTOGRD cs oi eee cae cose cans cscs tes ceeee ess 20

People v. Wolff, 19 Ill. 2d 318, 167 N.E. 2d 197 (1959). 22

People v.-Zito, 237 Ill. 434 (1908) ..... ees eseuuss Bye

Phillips v. North Carolina, 433 F. 2d 659 (4th Cir.

1970) ..\... ig shapes svt Ssen cans (26, 27, 28, 30, 33, 34

~ Pope v. Swenson, 395 F. 2d 321 (8th Cir. (1968) . 31

Raleigh y. Coiner, 302 F. Supp. 1151 (ND. W.Va.

pt) Vvrrreee rT Per rere rere errr ee reer rere . 80.

Ray v. State, 202 ‘Kan. 144, 446 P. 2d 762 (1968) .. 29 -

Roberts v. Russell, 392. U.S. 293 (1968) bekeyae sence 16

_ Schoomover v. ‘State, 448 S.W. 2d 90 (Tenn. Crim. |

App. 1969) shane eee see dees suetenyeues eso ue ee 30

Speer v. Page, 446 P. 2d 624 (Okla. Crim. 1968) . 29

State v. Callas, 68 Wash. 2d 542, 413.P. 2d 962 (1966) .

cert. denied 390 U.S. 970 (1968) .............4. 30 |

State v. Chapman, 465 S.W.. 2d 472 (Mo. ‘171) Suess 34

State v. Chase, 109 N.H. 296, 249 A. 2d 677 (1969) .. 29.

_ State v. Dutton, 112 NJ. Super. 402, 27¢ A. 2d 593

AIM os Sar cewaw es svenska deetegtencssasuces coon, WH

State v. Gaffey, 457 S.W. 2g 657 (Mo. 1970) eee . 34

| State v. Hale, 45 NJ. 225, 212 A. 3d 146 (1965) es

Appeal. dismissed, cert. dented, 384 U.S. 884 (1966) 29

State v. Jameson, 78 S.D. 431, 104 N.W. 2d 45 (1960)

State v. Miranda, 104 Ariz. 174, 450 P. 2d 364 (1969),

cert. denied, 396 US. 868 (1969) ...... iiaeeensss 28

-) vii. :

State v. Nettis, 78. RI. 489, 82.A.. 2d. 852 (1961) . 29

Stgt@v. Redding, 252 S.C. 312, 166 S:B. 2d 219 (1969), |

cert. denied 397 U.S. 930 (1970) c5:0 - wragetne eames 29

. State v. Riley, 100 Ariz. 318, 475 Pg2d 982 (1970) . .33, 4

State v. Sheldon, 179 Neb. 377, 138.N.W. 2d 428 (1965),

__.. cert. denied, 383 U.S. 980(1966) ............00008. 29

State v. Starratt, 153 N.W. 2d 911 (N,D. 190%) sokees 98 ,

| State v. Ussery, 452 $.W. 2d 146 (Mo. 1970) - woes lees - a

Stovall v. Denno, .

_. 388 US. 293 (196%) eve teow ee AO), 15, 18, 19, 2, 34

Tabor v. Maxwell,’ 3 Ohio St. 24-106, 209.N-E. 2d 206. |

Se 0: 5) pay veate'eee¥s soe ep eigen wee, 29

Tehan v. Shott, 382 U.S) 406 (1966) ....t ssc. 14

Tyler v. State, 5 Md. App. 265, 246 A. 2d-634 (1968): 29

_ @nited States v. Wade, 388 US. 218 (1967) re * . 10, B

United States v. White, 401 US. —, , 915, 8. A ~~

- 3122 (1971) ..... 4 dp toe sda wake dee sins dene usecds 16 --

United. States ex rel Bonner Vv: ‘Pate 430 F. 2d 639 —

(7th Cir, 1969) 2... ccc eee cece cece eee eeees 27, 34

|. United States ex rel. ‘Budd -v. Maroney, 398: F. 24 806

(3d Cir. 1968) ........ 52s Codec ov ses Soacsbases 31

United States ex rel. Cooper v. Reincke, 3 333 F. 2d 608 =

_ §d Cir. 1964), cert. denied, 379-U.S. 909 (1964) .28, 31

United States v. United States Coin and Currency,

_ 401 U.S. —, 915 Ct. 1041 (1971) °... 2.02.2... 16

Waddy v. Heer, 383 F. 2d 789 (6th sia cert. dented,

385 U.S. 885 (1966) 2... cca c cc ee cee eee 31

Walker v. Wainwright, 409 F. 2d 1311 (5th Cir. 10);

cert. denied, 306 U.S. 894 (1969) ....2....5.. 0... ’ 31

Wallace v. State, 9 Md. App. 131, 262 A. 2,789 (1970) 29

. 3

viii,

Williams \ v. United States, 401 US. » Bi: “8. Ot. 1148

nS LEME eee re ee ere oe teed, 15; 16, 18,19

Wilson v. Harris, 351 F. 2a 840 (9th Cir. ste cert. |

. denied, 283 U.S. 951 (1966) ..... Ldeiel sdiaiene. ws SL

Witherspoon .v. Illinois, 391 U.S. 510 (1968) hmesce? ae

White v. Maryland, 873 U:S. 59 (1968) vee el 9.11, 24, 27

| Srarvres

18 U.S.C. §3060 (1968) oo: lee feleeeeeeeetbeece eee Sb

18 U.S.C. 3006 Ab) (1964) .../0......000. faasees 33

" TH. Const. Art. I, Sec. 7 (effegtive July 1, 1971) - . 2B

Tl: Rev. Stat., Ch. 38/ Art. 109 ..5...,5..3- vase es 20

Ill. Rev. Stat.,. Ch. 38, See. 104-2(4) . cetececsececces. QO

‘TIL Rev. Stat., Ch. 38, Sec’ 114-13 CRIT eee

- TIL. Rev. ‘Stat.; Ch. 38, See. THM-2 ...0..03.. sesegerene, 22

IIL Rev.” Stat, Cli, 38, See. 114.9 8.6.......0.. wl. B

Il. Rev. Stat., Ch. 38, See. 11410 2.0.0.

ae cin Rev. Stat., Ch. 38, Sec, 109-3(2) peeee pig attge yen

a nl. Rev. ‘Stat, Ch. 38, | See, 122 ......c. cee eset eee 25

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ABA, Standards Relating fo Providing Defense —

Vices, ‘44 (Approved Draft 1968) ..... acehheases 33°

Committee on the Judiciary of the United States Sen-

ate; Report No. 371, 90th Cong, 1st BOE: ovcascsess 99

Shafer, The Control. of “Sunbursts”: Techniques in

Praspectwe Overruling, 42 N. Y = L. Rev. 631

(3971) « a ok wa baipu eR USS oe sueapsdscdsaveticnkes 318,17.

36 Temp. L. Q: 326 (1962) ........ Pats week engin ae

bts Evidence, See.. 138, 1 n. 4, n. 6, (ard | >

AMO)’ sytdeds shes tous woes freteeeemeteceereees 20

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Supreme Court of the United States

OcTOBER Tena, 1970 |

No. 6048 °. ..

JOHN ADAMS, »

7 Petitioner, |

os Ve 8 —

PEOPLE OF THE STATE OF ILLINOIS,

(On Writ of. Certiorari To The

Supreme Court of Ilinois)

_ BRIEF FOR ee

QUESTION PRESENTED

“Whether Coleman v. Alabama, 399 U.S1 (1970), should

be applied. retrospectively, | and if so, whether it is appli-

cable to a’case where the defendant, while represented

by privately retained counsel, moved prior to trial to

dismiss the indictment for failure of the court to offer

' him appointed counsel at the preliminary - -hearing.

‘ 2

STATEMENT OF THE CASE

The petitioner, John .Adams, was atrested by Officer

Phillip Williams of the Chicago. Police’ Department on

January 4, 1967,. for engaging in the unlawful sale of ”

narcotics, namely heroin.. A preliminary hearing was had

on February 10, 1967, and ‘Adams was bound over to the

Cook County Grand Jury. An indictment was subsequent-

ly returned (R. 3, 4), and Adams’ trial commenced be- |

' fore the Honorable Jaques F. Heilingoetter of. the Circuit

Court of Cook County on May 2, 1967, a jury Teves

ae been. waived (R.-15).

Evidence At Trial And Sentencing

The first witness called by the prosecution was Officer

Willis Nance of the Chicago Police Department. He testi-

fied that on January 4, 1967, he and Officer Williams met

with one Albert Bradley at 1121 South State Street, at -

approximately 1:30 P.M: Bradley was searched and found

“tobe free of money and narcotics (R. 66). He was given

$19 in prerecorded funds, and then driven by Officers

‘Nance’ and Williams to 18th and ‘Wabash in Chicago

where Bradley entered a tavern (R. 66). Bradley re- :

turned to the vehicle five minutes later and. had a con-

versation with the officers (R. 67). He left. ‘again, and

‘moments later, Officer Nance saw Bradley leave the tavern

with ‘the Petitioner, John Adams, and board a bus (R. |

68). Both police officers then proceeded to. Orleans and

Oak Streets in Chicagé in accordance with prearranged -

plans (R. 68-69). When they arrived some 15 or 20 min- °

utes later (R. 88), they saw Adams and Bradley near

a drug store at Orleans and Oak streets, The officers had.

_ arrived at Orleans and Oak before Bradley and Adams

3 . J

(R. 87). Officer Nance remained in’ the equad car and

Officer Williams left the car. and went into the drug

store (R. .69). Officer Williams entered the drug store

perhaps a minute before Adams and Bradley entered. (R.

91). Officer Nance saw Adams come out of the drug

store and walk around the, block completely. When he

- . returned to where he had started from, another male —

_ Negro appeared on the corner with him (R. 91). The

two men crossed the street and started walking south on

the east side of the street (R. 71). Officer Nance next

_ saw Adams 45 minutes later after he had been arrested

(R. 71-72). Adams was searched; and no marked money

or narcotics was found on his person (R. 97):

Albert Bradley next took the stand and testified that —

_his real name was Albert-Bradley but that he was also-

known as-Al Nichols (R. 113). He testified that at 1:30

P.M., on,January 4, 1967, he went to 1121 South State

Street and saw Officers Nance and Williams. They had a

- conversation, he was searched and found to be free of

money and narcotics (R. 114), and he was given $19 in

recorded funds (R. 115). They then drove to 18th and.

Wabash and he-entered a tavern called the 57 Club.

He contacted the petitioner, Adams, whom he knew only

as John Earl, by telephone; Adams’ brother placed ‘the

call for him (R. 116). On the telephone, Bradley told

Adams he wanted to'“cop,” and Adams said he would be

right down | (R. 117). Bradley then went back to the

parking lot! where Officers. Nance and Williams were

parked, and told then what he was going to do (R. 118).

He then went back to the tavern to wait (R. 119). Adams

arrived in 15’ minutes (R: 119); Bradley gave him the

- marked money, and they left the tavern and boarded a

bus going to =e Avenue (R. 121). At arenas Ave-

nue, | they transfered over to Orleans, and then’ walked

down Orleans to Oak Street and entered a Rexall Drug

Store (R. 121). Adams. had never left shis presence (R...

121). Officer Williams was. already in the drug store .

when they arrived, and he was standing about a foot

away from Bradley and Adams (R. 122) at an open

telephone booth -(R. 124). Adams, made another tele-

phone™ eall and: said “I’m here,” that’s all (R. 122-123).

- Adams then went ontside and met with another man (R.

124). They crossed the street, and then Adams beckoned

to Bradley (R: 124). Bradley went across the street and

received a small tinfoil package (Ry 125-127). Adams and

Bradley then walked to Chicago Ayenue and Orleans,

where they wére arrested by Officer Williams .as they

were boarding a bus (R. 125).

On cross-examination, Bradley admitted he was a pro-—

fessional informer (R. 151). He said that it. was not a

~ eoincidence that he and Adams had gone to that parti-

cular Rexall Drug Store; that it was a routine thing

(R. 171-172). He- knew that Adams was going to make

a call from that parti lar place because he had done it

the day before, and radley had told Officer’ Williams

this when they were aise at 18th and Wabash (R.

172-173).

_ Officer Williams then testified for the State. His testi-

mony corroborated that. of Albert Bradley and Officer

Nance. He said that he and Officer Nance had gone to

the Rexall Drugs because it was prearranged that this

would be where the informer and defendant would come

(R. 188). He testified that he was in the center of the

Rexall Drug Store when Adams and Bradley arrived, and

that he was standing right next-to Adams when Adams

made the second ‘telephone call (R. 296). He said that

after Bradley and the defendant left the drug store they

started walking south. on Orleans Street (R. 178). As

they. were about to board a bus eastbound on Chicago |

Avenue, Bradley ‘ pave Williams a tinfoil package ‘and

indicated’ he had purchased it from Adams. Williams

then placed Adams under arrest (R. 179). A small tin-

foil: fackage was then marked People’s Exhibit 1-D, and

- Officer ‘Williams identified if as the one he received from

Bradley. It bore Williams’ initials (R. 182). It was stipu-’

. lated that the contents of this package had been tested |

by’ police chemist and found to be heroin’ (R. 183).-It

'. was also stipulated that Adams was 36 years old (R.

189).

Adams then took the stand on his own bebalf and de-.

nied the charge (R..241). He testified that- he saw Albert.

Bradley at 12:00 noon on January 4, 1967, at the 57

Club at 18th and Halsted (R. 243). He said that Bradley |

had called him and told him’ to come over, that:he was

- “spending up” his money and wanted to buy Adams a

_ drink (R. 243-244). Adams’ brother placed the call

for Bradley (R. 267). Bradley ge Adamns to go

to the north side with him to find fe who had left

Bradley after an argument (R. 246). Adams did not

know why Bradley wanted to:look for his wife on the

north side (R. 268). He had nothing. to do, so he went —

(R. 246). They took a bus to Chicago Avenue, where

Bradley left Adams in a drug store so Bradley could go

and “check something out.” (R. 249). Bradley was gone

10 to 15 minutes.’Bradley did not say, where-tie was go-

‘ing, or that he was looking for his wife and Adams

never asked him where he went: (R. 271).. When they

reached Orleans and Oak, Adams said he was.cold, and

Bradley suggested that they go into the Rexall .Drug

Store and get warm (R. 250). They were in the‘store for

Bee.

* 10 minutes, Adams Salled his “wife and told her where -

he was and that he would be home soon (R. 275). Adams — |

was looking out the drug store window when he Saw a

friend of his named Charlie, who also Knew Bradley’s

wife (R. 253). He went out and falked with Charlie, but’.

he. had not seen Bradley’ s wife either (R.. 253). Bradley

did.not leave the drug store to ask Charlie about his

wife (R. 272). Bradley then came out and ‘suggested

fhat they return to the south side (R. 254). Bradley

/went to a nearby gas. station to use the ‘washroom,

* and when he returned they boarded a bus, | but were im-_

mediately arrested by Officer Williams (R. 255). Officer

Williams told him he looked suspicious and was over

here trying to steal something (R. 255). Adams told the

arresting ‘police officers that he was on thy north side

to help Bradley look for his wife (R. 256-287).

The. prosecuting attorney. then offered into eVidence

People’s Exhibit: No. 3, which was proof of the defend- -

ant’s prior conviction for unlawful sale of narcotics (R.

277). : ;

_ Albert Bradley was again called by the State in re-

buttal. He testified that, contrary to what Adams said,

he was not present at the 57 Club between 12:00 and

1:00 P.M. on January 4, 1967, and that he was not buy-

ing drinks, for everyone at the tavern (R. 280). They’

‘left the 57 Club at 2:00 P.M., and Adams never left his

. presence until Adams went out to meet his contact at

Orleans and Oak (R. 281). He -never told Adams about

any quarrel with his wife. He testified that: he had been

in that Rexall. Drug Store with Adams twice before that .

occasion, the last time being on January 3, 1967, the day

before Adams’ arrest (R. 282). Adams never said any-

thing about calling his wife, but merely placed. the’ call

and said, “I’m here. ” (R. 283). Further, Bradley | testi-

fied that he never went: into a gas station when he and ~

Adams were heading back to the south side (R. 283).

| Offlet ‘Phillip Williams was called again by the State

in rébittal (R. 295). He testified that when‘the third

party arrived at the area of the corner outside the Rexall: —

Drug Store, he heard Adams say, “There he is.” (R.

297). He testified that he did’ not tell Adams that he

"was ‘under arrest because he was suspicious looking. and

might be committing’ a theft, but told him he “had a

sale on himi.”. (R. 297). He testified that he never saw

Albert Bradley go into the gas station without Adams

(R. 297). He testified that he did not recall Adams say-

ing, when placed under arrest, ‘that he was on the north

side looking for Albert Bradley’s wife (R. 298).

After final argument by counsel, the court entered. a

finding of guilty (R. 313). The hearing in aggravation

and mitigation disclosed that Adams had®* previously —

been convicted of unlawful sale of narcotics (1956), un-

lawful possession of a hypodermic needle (1960), and

' two Separate offenses of theft (1963, 1965). (R. 314, 315).

_ The court sentenced the defendant to a term of 10.to 13

years in the Htinois State Penitentiary (R. 316).

Pre-Trial Motions

Prior to trial, Petitioner’s trial counsel moved re dis-

miss the indictment against Adams on the ground that

the presiding judge at the preliminary hearing failed -

to.appoint counsel to represent Adams during those . pro-

ceedings’ (R. 11]-11J). During oral argument on this

motion before the trial judge, the prosecution argued

that a preliminary hearing was not a critical stage of

an Illinois criminal proceeding and thus the appointment

Tg i

of counsel was not required, relying on the ease of People

v. Morris, 30 Ill. 2d 406, 197 N.E. 2d 433 (1964). (R.

43). The. trial court agreed, and the motion to dismiss .

the indictment was denied. (R. 12 49).

Petitioner’s -trial counsel also moved prior to trial for

a Bill of Particulars (R. 40). In response, the prosecu-

tion immediately informed defense counsel that the of-

fense occurred at approximately ‘2:30 to 3:00: P.M. on

January 4, 1967; in the area of Orleans:and Clark Streets .

‘in Chicago and that the informer’s true name was Albert

Bradley (R. 41). Thereupon, defense counsel waived the

‘written Bill of Particulars (R. 42-43). This exchange

of information occurred on April 28, 1967, four days

prior to trial. On that same day, the prosecution. made

_ the informer-purchaser, Bradley, available. to defense

counsel. Further, on that same day the defense answered -

“ready for trial” (R. 39, 50). At no time did defense -

counsel request a continuance to investigate further the

informer’s identity or to prepare more “ee his

defense. ;

Appeal To The Tlinois Supreme Court,

On appeal to the Supreme Court of Illinois, petitioner’

_ raised three issues for consideration. He first argued that

the informer-purchaser, Albert Bradley, was intentional-

ly misnamed in the indictment thus depriving him of his

right to be informed of the nature of the charge against

him. Relying on the cases of People v. Zito, 237 Ill. 434 —

(1908), and: Collins v. Markley, 346 F. 2d 230 (7th Cir.

1965) (enbanc), the State argued that the illegal sale—of

naréotics isa “victimless” crime as distinguished from

crimes with specific victims such as murder, robbery or

" Tape. As such, the name of the. purchaser of the nar-

Pay ;

rT.

a ‘cotics is not an sleneat of the crime under Tilinois law, .

and thus the failure to name, or to misname, the pur-

chaser does not result in a technical insufficiency in the

indictment.

Petitioner also argued that it was error for the judge

at the préliminary ‘hearing not to offer him appointed

_ counsel. In response, the State, relying on People v.

Bonnet, 37 Ill. 2d 553, 229 N.E. 2d 527 (1967), cert. de-

nied 392 U.S. 910 (1968), and Peoplé v. Morris, 30 Ill. 2d

406, 197 N.E. 2d 433 (1964), again argued that, a re-

liminary hearing in Illinois did not constitute a critical

stage of a.criminal proceeding and thus the failure to.

offer appointed counsel was not error. It, of course, must

be noted that this Court’s decision in Coleman v. Ala-

_- bama, 399 U.S. 1 (1970), had not yet been ‘rendered at.

the time. of the filing of the State’s brief. However, by

the time the Supreme Court:of Illinois rendered its. deci-

sion in the instant case, Coleman had been decided and

the Supreme Court of Illinois specifically held that Cole-

man did. not require retroactive application...

Finally, petitioner argued that his guilt was not-proved ~

_ beyond a reasonable doubt. In response, the State argued»

that the evidence adduced at trial clearly proved Peti-

tioner guilty of the iHegal sale of narcotics beyond~all

reasonable doubt. Not only did the informer, Bradley,

testify ‘to all the events constituting the unlawful sale,

but his testimony was corroborated in all material re- -

spects by the two police officers. The testimopy of these

three witnesses was . contradicted only by the uncorro-.

borated story of the petitioner that Bradley. had asked

him’ to help look for his runaway wife.

| After hearing oral argument, the Supreme Seek of

- Illinois affirmed. petitioner’s conviction. Pedple v. Adams,

‘ .

46 Ill. 2d 200, 263 N.E. 2d 490. (1970): From this deci-

sion, Adams | petitioned this Court for a Writ. of Cer-

Hopari. z : . 6

_ SUMMARY OF aAncuuaner |

This Court’s approach to. the problem of retrospective 7

-. decision: making has gone through a series of evolution-

ary stages beginning «with its holding in’ Linkletter v.

Walker, 381.U.S. 618 (1965), that the exclusionary rule

nazioueosd in Mapp v. Ohio, 367 US. 643 (1961) would

be limited to cases.on direct review, and culminating in

its decision in Stovall v. Denno, 388 U.S. 293 (1967 ).

| where this Court: held that’ the principles announced in

United States v. Wade, 388 U.S. 218 (1967) ‘and> Gilbert

_w California, 388 U.S. 263 (1967) with respect\ to the

right to counsel at pre-trial lineups ‘would be applicable ~

| only to confrontations occurring after the date

sion establishing. the right. The rule announced in’ Stovall:

represents the modern trend in retrospective dec ision,

making and should be applied’in this case. 7 \

7 Though t e relevant standard to be used in determin-

ing the ret ctive application of a newly announced

‘rule of criminal proeedure has changed, the underlying

criteria established in Linkletter for ‘deciding whether a

~ new rule should be” applied retrospectively in the first

place have remained ‘constant. The criteria are three: (a)

the purpose to be served by the new. standards; (b) the

extent. of reliance by law enforcement authorities ‘on the

old standards; and (c). the effect: on the administration ~~

of justice of a retroactive application of the new stand-

; ards.. - : : \

- Application. of the rule annotinced in Stovall v. Denno

a and the criteria. established in Linkletter. v. Walker to

'. E

the instant case dictates that Coleman v. Alabama, 399

US. 1 (1970) should be restricted to cases in which pre- 3

liminary hearings were held after June 22, 1970. ety

9 . In Coleman, it was indicated that the purpose to be

7 oneal by requiring counsel for indigents at- preliminary

hearings was to protect the accused from being im-

properly bound over to the Grand J ury, to secure dis-

covery of the state’s cases, .to fashion an impeachment —

tool for. use at trial, and to make effective arguments on

such matters as an early psychiatric examination or ‘bail.

These objectives do not require the pretest one:

cation of Coleman. - aoa

The prevention of the improper binding. over of an . ”*"

accused to th Grand Jury and the securing of bail bear

no relation to the truth finding process. Furthermore, the ‘i

preliminary hearing in Illinois is not a dependable source *

for discovery, impeachment or preservation of evidence,

nor. does there exist any authority for ordering a’ psy-

chiatric examination at such hearing. | ‘

Nor can there be any, doubt. that there was substantial _ a8

‘reliance on the proposition that counsel was not required :

‘at preliminary hearings where neither ‘the acts . nor

_ omissions of the accused ‘could be used@against him at .

trial. At least thirty-five states and every Circuit Court —

of Appeals i in this country so ‘relied. This reliance on the

old ‘rale was entirely justified in light of this Court’s de-

‘- cisions-in Hamilton v. Alabama, 368 US. 52 (WAI) 's and

White v. Maryland, 373 US. 59 (1963). eo Ea ame a

Furthermore, the effect’ onthe : administration. of justice | ae

| if Coleman were to be applied retrospectively, would be °

su stantial. In Mlinois, alone, literally hundreds of cases

each year | prior to 1970 would be affected. The ‘retro-

| spective sppiieation of Coleman ‘would necessitate. hun-

wf.

tet iongy.s, ;

. \ '

“a9 -

error “was harmless and in many states, such as Illinois,

wy, | ‘transcripts of p = penning? * in most cases will not

can be available. \ Eats |

~ However, even if ‘tis, Court ahoula hold that Liclaeek

“is to be applied retrospectively, it should not be applied —

.to this ease. Petitioner was represented by. privately re: ,

‘tained counsel at” trial and there was no allegation in

; oe ‘this motion to dismiss the: indictment for ‘failure to pro-

vide: appointed counsel at the preliminary: hearing. that

a Pte petitioner .was indigent.. Furthermore, there was no alle-

_ gation of- harm in any. of petitioner’ s pre-trial or -post-.

trial motions. Nor did petitioner ask that the case be

remanded for’ a delayed preliminary hearing. with his

attorney. Rather, he ‘asked that the entire indictment be

dismissed... Under ‘these. circumstances, the trial court

; eannot be ‘faulted for mayne: the motion to ee

; to “determine whather: the ‘Crise

- ARGUMENT

THE APPLICATION OF COLEMAN V. ALABAMA

.. SHOULD: BE RESTRICTED TO CASES IN WHICH

PRELIMINARY HEARINGS* WEES HELD Arlee

JUNE 22, a ;

Introduction.

~The. use e of prospective overruling is a new development

in, érimimal ¢ases. Its use in civil cases, though of more

ancient vintage, is quite sparse.’ Despite this novelty, the

* ules governing, the limited retroactivity of judicial de-

- /-eiSions developed ‘rapidly. .

. On June 7, 1965, the Court made its first ruling that oe

qualified the ‘retrospective application of a new decision.”

1. See eiccralle Schafer, The Control of “Sunburst”:

~ .Teehniques of Prospective es 42 ——— L Rev.

631 (1967). > |

2. The Court had been urged = give full seaite -con-

sideration to“the issue of retrospective application of

Gideon v. Wainwright, 372 U.S...335 (1963) and ‘Douglas

‘v. California, 372 U.S. 353. (1963), but the-Court did not

do so. See Pickelsimer v. Wainwright, 375 U.S. 2, 3

(1963) ; Daegele v. Kansas, 375 U.S. 1 (1963). The same

. is true with respect to the application of Griffin v. Ili- ©

nois, 351 U.S. -12, 25-26 (1956) (concurring opinion); -

Eskridge - v. “Washington State Board of Prison Terms

ion).

and Paroles, 357 ‘U.S. 214, 216 (1958) (dissenting opin

~ In Linkletter v.: Walker, 381 US. 618 (1965), the Court

held that the rule excluding: illegally seized evidence )

was limited to cases on direct. review at.the time the

rule was announced and could not be used in a collateral

attack upon the validity of a final judgment. It is clear

that. no more narrow. standard of retrospective applica. .

tion was before the Court. 381 U.S. at 622. See also, John- °

- son v. New Jersey,: 384 U.S. 719, 732 (1966). The Court

used the same measure of retrospective application in

two other cases. See Angelet v. Fay, 381 U.S. 654 (1965).

(exclusion of illegally. seized evidence) ; Tehan v. Shott, °

382 U.S.. 406. (1966) (prohibition of: comment upon de-

_ fendant’s failure to testify).

On June 20, 1966, the Court considered for the ‘frst.

‘time a more narrow standard. of retrospective application

than that adopted. in Linkletter. In Johnson v. New

Jersey, 384 U.S. 719 (1966) the Court held that new rules

requiring warnings of rights prior to interrogation would

be applicable only to cases in which trial began subse- |

quent to the date the new rules were announced:

_ This new standard of retrospective: application was

not the result of any new found rationale. The criteria

for determining whether a new rule should be’ prospec-

tively applied have remained basicall¥ unchanged since

Linkletter was announced. “The criteria guiding resolu-

tion. of the question ‘implicates (a) the ‘purpose to be

" served by the new standards, {b) the extent of ‘the

. reliance by law. enforcement authorities on the old s§jnd- .

ards, and (c) the effect on the administration of justice —

of a retroactive application of the néw standards.”* The

3. Stovall v. Denno, 388 U: S. 2938, 297 1967); ‘Link.

letter v. Walker, 381. U.S. 618,*636 (1965) ; Williams v.

United States, 401 U.S. —, 91 —_ Ct. 1148, _—

| (971). .

“15

new nitasure of restricted retrospective application in

Johnson was adopted becayse under that measure “law

enforcement officers and trial courts will have fair notice

that statements taken in violation of [the new confession

rules] may not be used.” 384 U.S. at 732. .

The decision in Johnson v. New Jersey seemed oneal: |

ous in one important respect. The act of reliance by law

enforcement officers upon the old rules’ governing con-

_ fessions did not occur at the time of the trial, but rather

at the time. interrogation took place. Certainly the mea-

sure of retrospectivity in terms of the timing of trial or

review created arbitrary distinctions in individual cases

and was largely unrelated to the timing of the act of -

‘reliance by law officers. See Williams v. United States, —

401 US. , 91° Sup. Ct. 1148, 1155 n. 9.

On June 19, 1967, barely more than two years after

Linkletter, the Court adopted a standard of. limited retro-

spective application that was as consistent with the

rationale of prospective overruling as the case or con-

troversy requirement’ would allow. In Stovgll v. Denno,

388 U.S. 293 (1967), it was held that the right to counsel

at pre-trial identification procedures was to be applica- :

ble only to confrontations occurring after the. date of

the decisions establishing the right.

Stovall v. Denno represents the end point in a aot

but complete evolution of the retrospectivity doctrine in

which the measure of retrospective application was nar-_

_ rowed until it became consistent with the rationale justi-

fying : limited retroactivity. Since Stovall, every retro-

spectivity question before the Court has been resolved in

7 anly one of two ways. Either the new rule has been made

, = TI

- fully retrospective‘ or the new rule has been applied ‘only

to cases where the prohibited act takes place: after the

date of the decision which prohibits if.° .

There have been two exceptions to this consistent vate.

+ tern. One ‘involved rather special circumstances.’ The

other exceptional case did not present for decision a.

— question of retrospectivity, but rather required interpre-

tation of an existing decision. In Jenkins y. Delaware,

895 U.S. 218 (1969), the Court ‘held that Miranda v.

_ Artzona, 384 U.S. 4386 (1966), was inapplicable to a case’

‘being retried after the date of the Miranda decision —

~ where the original trial occurred prior to Miranda. More |

. a

a os Witherspoon Vv. Mliniois, 391. U.S. 510 (1968); Reb-

erts v. Russell, “392 U.S. 293 (1968); McConnell. v. Rhay,

393 U.S. 2 (1968); Arsenault v. Massachusetts, 393 U.S. —

me 968) ;- Berger v. California, 393 U.S.°314 (1969). ‘See

Ashe-v. Swenson, 397 U.S. 436, 487 n.1 (1970). Cf. United

'. States v. United States Coin and Currency, 401 U.S ’

91 Sup Ct. 1041 (1971).

5. .De Stefano v. Woods, 392 U.S. 631 (1963) ; Desist .

United States, 394 U.S. 244 (1969); Kaiser v. .New

York. 394 U.S. -280 “(1969); Halliday v. United States,

394 U.S. 831 (1969); Hill v. California, 401 US. : ’

» 91 Sup.-Ct. 1106 (1971); Williams v. United States, 401

U.S. —, 91 Sup. Ct. 1148/ (1971); United States v.

White, 401 U.S. —, 91 Sup Ct. 1122 (1971); See Mackey

v. United States, 401 U.S... , 91 Sup, Ct. 1160 (1971).

6. Fuller v. Alaska, 393 U.S. 80 (1968) extended ap

plication of Lee v. Florida, 392 U.S. 378 (1968), to evi-

dence introduced at trial after the date of the Lee deci-

sion. Lee, of course, reguired the’ exclusion of evidence —

secured in violation of a federal wiretap law. According-

ly, Fuller v. Alaska was concerned with consequences of

‘acts by: law enforcement officers that had been previously

prohibited ‘by a federal statufe of many years standing.

ah ~ pe

importantly, the Court explicitly recognized that its ap-

proach. to prospective decision making had undergone

poe ,395 US. at 218, n.7; See also Desist v.

nited States, 394,U.S. 244, 252- 53 (1969): The Court

| Stated that the mide recent trend in prospectivity deci-

sions is to select “the date on which the prohibited prac-

tice was engaged in, rather than the date the trial com-

menced, to determine the applicability of newly formu-

lated constitutional standards? (395 U.S. at, 217), and

to regard “as determinative the moment at which the dis-

carded standards were first relied upon” (395 U.S. at —

218).’

It is in light of these now wel established measures

and rationales that the applicability of Coleman v.: “Ala-

bama, 399 U.S. 1 (1970) to this case must decided.

‘The Purposes Served By The Right. To Counsel At.

Preliminary - Hearings Do’ Not Mandate Retrospective

Application of Coleman v. Alabama. :

“Where the major purpose of anew constitutional

doctrine is to overcome an aspect. of the criminal

trial ‘which substantially impairs its truth finding

function and so raises serious questions about the

accuracy of guilty verdicts in past trials, the nowt

rule has been given complete retroactive effect.”

7. The Court also caotes with approval the itt.

ment that “Sound growth can be promoted and erratic

results avoided by focusing attention on the, element. of .

_ reliance that justifies [prospective overruling}”. 395 U.S.

at 218, n.7. ‘The quotation is taken from an article by Mr.

. Justice Schaefer of the Court whose judgment is the pres-

-ent subject of review. See Schafer, The Control of “Sun-

bursts”: Techniques of Prospective Overruling, 42 N.Y.U.

-L. Rev. 631, 646 (1967).

“Williams v. United States, 401 U.S. ——, 91 Sup. Ct.

1148, 1152 (1971). |

In Coleman, the- Court thought that soameel at a pre-

liminary hearing could prevent the unjustified holding

or binding of a case to the Grand Jury and make ef-

fective arguments for. ba; The Court further believed

_ that counsel could, by cross-examination create material

.for impeachment at trial, secure discovery of the state’s

case, preserve testimony favorable to the accused and

obtain ‘early psychiatric examination of the accused. See |

~ Coleman v. Alabama, 399 U:S..at 9.

Obviously, the prevention of- an improper _ holdover

- and the securing of bail have no relation to the truth °

finding aspect of a criminal trial. Indeed, if there were a

‘significant weakness in the state’s case at preliminary _

hearing, defense counsel would rightfully hesitate to .

bring it elearly to. the surface at a preliminary stage. of

the. proceeding for fear that the prosecution .would re-

pair the deficiency and refile or go to the Grand Jury.

The remainder of the purposes served by counsel. at

preliminary hearing may, at least in theory, bear upon

the truth finding-funetion at trial. This fact alone, how-

ever, does not command retrospective application « of the

new rule.

-The standard is whether ‘ar previous sheanes of

a right “substantially impairs [the] truth finding. func-

tion.” Williams v. United States, 401 U.S. at ; 91

Sup. Ct. at 1152. And the extent to which a prohibited

practice. 4nfects the integrity of the truth-determining

-process at trial is a “question of og ag Stovall

v. Denno, 388 U.S. at 298; Johnson v. New Jersey, 384

US. at 729. ‘The Court has also considéred the extent -

to which: alterndtive safeguards éxist to serve the pur-

: rae

poses of the new vale. See. Johnson v. New Jersey, 384

- US. at 729. | :

Obviously there are clear cases on - both ends of the

spectrum. The illegal seizure of evidence does not affect

its _ reliability and new Fourth Amendment rules have

never received full retrospective application. See Desist

v. United States, 394 U.S. at 250. The denial of the right |

~. to counsel at trial, on the other’ hand, must nearly al-

ways raise serious questions about the accuracy of guilty

verdicts.. See. Stovall v. Denno, 388 U.S. at 297-98.

Where the cases are not within these simple areas, 7

this (ourt has weighed the. probabilities and has applied —

prospectively several rults the violation of which might —

have affected the reliability of the determination of guilt.

The -prohibition of comment on the defendant’s silence

and the right to jury trial were both protective, ‘in part,,

of the integrity of the guilt-determination. Yet, despite

explicit recognition of this, neither. appliés retrospec- °

tively. See Johnson v. New Jersey, 385 U.S. at 730. The -

rule requiring warnings of rights prior to interrogation

and the right to counsel at certain identification proce-

- dures had the obvious purpose of ensuring ‘that the ques-

tion of guilt be reliably resolved yet the violation of the

.Tules was held not to create a substantial likelihood that |

the’ results of many trials were factually incorrect. Wil-

liams: v. United States, 401 US. —-; 91. Sap. Ct. at

1153-54, n. 7.

J waged by these rules and proceilonts, the rolé of coun-

sel at preliminary. hearing is not so vital as to require

retrospective application of Coleman.

The most important function to be served by counsel

is the securing of discovery and material for impeach-

ment. The request for a psychiatric examination’ and the

preservation of favorable evidence’ would be rare occur- .

rences even if defendant were represented by counsel. At

the preliminary hearing stages of a ease, defense counsel

usually has no clear notion.of whether psychiatric or any ,

other kind of evidence is likely to be favorable. Even if

he suspects such evidence will be helpful, he would be ~ -

reluctant to commit his client to any particular form .

‘ of defense without making the kind of ‘thorough investi-

gation that would be difficult to complete before prelim-

inary hearing. Finally, even in the rare case where coun-

sel wants to take affirmative steps at the preliminary .

hearing, he would be reluctant to do so for fear of giving

* the state very early notice: of his defense. In any- event,

8. Although the Illinois Courts recognize the right of

indigents to the services of scientific experts (People v.

“Watson, 36 IIL. 2d 288; 221 N.E. 2d 645 (1966) ) the grant- -.

ing of a motion for a free psychiatrist is not automatic

- but rests within the discretion of the court. Furthermote,

there is no provision for such a motion at the prelim-

inary: hearing. Illinois Revised Statutes, Ch. 38, Art. 109.

The motion for a psychiatric examination, if made, is

ordinarily Made after arraignment and then usually un-

der the prfvisions of Ill. Rev. Stat., Ch. 38, Sec. 104-2(d)

which provisions, though applicable to questions of com- -

petency, are used alge ' in cases of gauge insanity de-- -

_. fenses.

S.: Most: slain though ee Illinois, eons for the

preservation of testimony by means of evidence deposi-

tions. See 5 Wigmore, Evidence, Sec. 138, n.4, n.6 and

See. 1401-18 (3rd Ed. 1940) and Note, 36 Temp. L. Q. 326,

331 for a collection of statutes. Tliere are no statistics on

their use but it is generally believed their use is ‘rare.

Certainly reported Gocistons ene evidence oer:

tions are difficult to find.

the .defendant. who can show affirmatively that he was |

‘prejudiced by the loss of favorable testimony or that

early psychiatric examination was vital te his ease and ~

was not performed all because of- the absence of counsel

- at preliminary hearing may raise the question under IIli-.

nois law regardless of the prospective application of Oole-

‘man v. Alabama. See People v. Bernatowicz, 35 Ill. 2d

- 192, 198; -220 N.E. 2d 745, 748 (1966); People v. Bonner,

37 Ill. 2d 553, 561; 229 NE. 2d 527, 532 2 (1087), cert. de-

med 392 US. 910 (1968). .

In contrast ‘to the highly unusual case where a defend-—

ant would require the preservation .of | favorable: evidence

or an early psychiatric, examination, ii may be argued

by petitioner that nearly every defendant would: seek

discovery and the opportunity to create inconsistent state-

ments at the preliminary hearing. aa

Yet the preliminary hearing is not. the est wilde to

achieve these purposes. In explaining 18. U.S.C. § 3060:

(1968), the Committee on the cern of: the. United

States Senate observed that:

' “The preliminary heating: does. not present an ideal

opportunity for discovery. It is ‘designed for another

| purpose; namely, that of determining whether there

is probable bon. to. justify further proceedings

: against an arrested person. Thus, the degree of, dis- -

covery obtained in a preliminary hearing will vary .

oe upon ~ how. much evidence the presiding -

Mm... should be ated that. ooediial ainsi of the

prosecution’s case is not required by the Constitution. See <

Augenblick v. United States, 393 U.S. 348 (1969). 'The

furthest the Court has ever. gone is to indicate ‘a potential

. denial 8f due process in some cases where defendant is - _

refused any pre-trial discovery of his statements to the

police. See Clewis v. _— 386 US. 707, 712,.n.8 (1967).

| judicial officer thinks is necessary to establish prob-

able cause in a particular case. This may be quite a

bit, or it may be-very little, but in either event it

need not: be all the evidence within the possession of

the Government ‘that: should be subject to discovery. _

‘In addition, because it’s fundamental purpose is

to prevent unjustified restraints of liberty, the pre

liminary examination shoyjd be held within a sh

time after an accused is t arrested. Discovery, on

the other hand, can most usefully take place at a lat-

er stage, much closer*to trial, when the evidence’ is

*. more> aad complete and defense counsel is better

-.. prepared ... .’” (Report No. ies 90th Cong. 1st

~ Sess.) .

More importantly, Illinois’ a for many years allowed

| _ exténsive discovery of the prosecution’s case. See Illinois.

_ Revised Statutes, Chapter 38, Section 114-2 (bill of par-

rs ticulars) ; Section 114-9 (list of intended prosecution wit-

nesses); Section. 114-10 (production of confessions and —

lists of witnesses to the confessions); People v. Gerold,

265 Ill. 448, 107 N.E. 165 (1914); People v. Buzan, 351 Il.

610, 184 N.E. 890 (1933). With respect to impeachment.

of state witnesses, the defendant is entitled to all of their

prior statements so long as they are in substantially ©

verbatim form. See People v. Moses, 11 Il). 2d 84, 142

N.E. 2d 1 (1957); People v. Wolff, 19° Ill. 2d 318, 167

-N.E. 2d:197 (1959); People v. Johnson, 31 Tl. 2d 602, a

N.E. 2d 399 (1964)... |

"haces Illinois Revised Statute, h. 38, See. 114.13, :

« ‘tapes Court of [llinois has the’ authority to estab-.’

lish discovery procedures By Rule of Court. It is expected

will be promulgated at either. i June or ees, 1971

Terms of Coart. 7 Bg Nee ee ee

' that a comprehensive and expanded set of discovery rules. _

~~ ee ee

y, ¥

oa 433 (1964) (Schaefer, J. concurring). Probable cause.

‘may be determined on the basis of hearsay: People.v.: - |

pores

23 .

The pretimindey site in. -dilinois has’ been eiatliak ee

arly unsuifable as a consistent means for fulfilling the

. purposes that motivated the Coleman decision. There is

no requirement that preliminary hearings be attended by,

‘ a court reporter or that.a transcript be made.” Péople v.

Givans, 83 Tll. App. 2d 423; 228 N.E, 2d 123 (1967) ; Peo-

ple. v. Ritchie, 36 Tl. 2d 392, 396-97, 222 N.E. 2d 479

(1967). See People v. Morris, 30 Ill. 2d 406,412; 197 NE.

Veldez, 72 Ill. App. 2d 324; 214 N.E. 2d 675 (1966); Peo-

ple v. Jones,’75 Ill. App. 332; 221 N.E. 2d 29 (1966). —

The hearing judge - may terminate the proceedings once

; probable cause is established. People. v. Bonner, 37 Ill.

2d 553, “560,229 N.E. 2d 527, 531 (1967), cert. denied 392

U.S: 910 (1968).:The defendant has no right to have a 3

preliminary. hearing.”* People v. Peiruso, 35 Ill. 2d 578, af

221 -N.E. 2d 276° (1966). Presumably, since the Court can

terminate the proceeding once probable cause is estab-

lished, the defense can be precluded from calling wit-. . *

" messes of its own. In short, the preliminary hearing in. _

. “illinois is not a dependable source of discovery, pa 5

om > Other than in . Cook County, the vast atattee of

‘preliminary. Meri in Illinois are not’ a by court : le

_ Teporters. .

-1 13. The rationale is that alanine is eieiteitihe ~

fore the grand jury is similarly admissible in preliminary

hearings. See People v. Jones, 19 Ill. 2d 37, 166 N.E. 7

" 4. (1960) and Costello v. United States, 350 U.S. 35

(1956) (scope of evidence before grand jury). :

14. The 1970 Constitution’ of the State of ‘Hikstis ( ef-

. feétive: July 1, 1971) does establish a right to. P 2 relim-

uid baat: See Article * Sec. 7.

: tive fortwo reasons.

~in this case was weak. (Petr’s Brief_A, | Par. 18) The rec- |

‘ment or ipkieniovatton of'¢ evidence and there exists no. au-

F “ary he asserts that the evidence |

ord does not, read‘ as a whole, support this' contention.

_ < By ‘resting his argument on tHe particular state of the. ‘

“record in. his case, he teally concedes impliéitly that itis” -

— not the general rule of Coleman he invokes. Rather, peti- :

tioner is‘ ‘saying that his casé ‘\catnnot stand -because, in

the particular circumstances, he was ‘prejudiced by the.

‘. absence of counsel. _This is-not an argument founded on

Coleman v. Alabama but rather on Hamilton v. Alabama, | ~

368 U.S. 52 (1961) and White v. Maryland, 373.U.S. 59

( 1963). That argument must ‘fail, as petitioner well

knows, ‘hecause he never alleged any specific prejudice in” —

the court below and never made, nor sought to -make, any: -

ones of what counsel ‘might neve done at the of pices i

1b. Th one .tespecty the préligthaty “hearing i in Tlinois |

is fairly one snes

. evidence, a: ‘motion not.available in federal cases. Comparé

use the defense can move to suppress _

Ill. Rev. Stat. Ch. 38, Sec. 109-3(e). with Giordenello v.

United States, 357. US. 480, 484 (1958).;In. some cases

- this may lead to some discovery, but most’ often the. evi-

~ . dence. on the preliminary. hearing ‘motion to suppress is

purely hearsay and there is little incentive. to develop the.

issue since the ruling at the preliminary motion has no

’. binding™ effect. See Ill.. Rev.: Stat. Ch. 38, Sec. 109-3(e):

_-Parenthetically, it might be’ noted that the retfospectivity

of ‘all. exclusionary ‘rules affects ‘discovery in a collateral

way. Requirements of standing and the elimiziation of the

- mere evidence rule diminish the necessity of motions to . |

suppress and its attendant élement of discovery: The ap-.

: plication of new exclusionary rules. has the reverse effect.

So -

—_thérity to order. _psychiatrics#xaminations} at atoh a hear-

7 ‘Eis ; :

. inary hearing ts improv his ssentiion at. trial It is man- .

ifest that the particular strength or weakness: of a given

record is irrelevant to the issue of. whether Coleman

‘ should be givgn general :retrospective application, ==

The. etitioner’s second argument is simply that ‘Cole-

man involves the right to counsel. (Petr’s Br. A. ‘par. 4). Pine

Nothing, however, is clearer than the proposition tkat

retrospectivity “is not: automatically determined by the ~

provision of the Constitution on which the dictate is

based.” This clear proposition comes from two. decisions

_ which held, respectively, that. the right to counsel at in-

terrogation and- at line-ups was hot retrospective, See.

Johnson v: New Jersey, its US. at 728; Stovall v. Denno, Be

888 U.S. at 297. 7

By comparison to the purposes served ay. the right to— <a

counsel established in Miranda v. Arizona, 384 U.S. 436

(1966), United States v. Wade, 388 US. 218 Agee and

Gilbert. v. Califérnia, 388 US. 263 (1967), the\ purposes —

served by the Coleman right to counsel are hardly of *

noe | greater significance in relation ‘to the reliability of guilty -

determination. Indeed, there are strong analogies be-

tween the Wade-Gilbert doctrine and the Coleman doc-.

_ 16. The obvious allegation in this regard would con-

cern the lack of cross-examination of the purchaser of. .

narcotics, but the purchaser did not testify at prelimin-

ary hearing and there was no obligation on_ him to ‘do so.’

In any event, Blinois‘has always’ provided a remedy for

any specific prejudice qhown from lack of counsel at the

. preliminary hearing. ( People v. Bonner, 37, Ill. 2d

558, 561; 229 N.E..2d 527, 582 (1967), cert. denied 392 .

-US..910 (1968), and there exists a procedure for estab-

lishing further facts to support the. claim of _—

—— iil. Rev. Stat. Ch, 38, Sec. 122. | |

4 : ae ¥ 3

ogi ec by the Court ieleidah See .

°399 US. at 7. The willingness of the Court to recognize

‘the doctrine of: hariiléss error with respect to violations ___

er Coleman and. Wade is another | common, feature ‘and

_ one that ‘distinguishes. them from other right to counsel -

eases. In Phillips v. North Carolina, 433 F. 2d° 659, 662

(4th Cir. 1970), the Court held: that Coleman was to be

peri prospectively | and stated; + .- ’

to be dare if preliminary heatiig is beld the ae on,

‘cused gains important -rights and advantages that

‘ean be effectively exercised’ only through. his attor-

ney. Counsel’s function, however, differs from’ his

“runction at. trial. Broadly speaking, Ys role at the

. facts, and probe the state’s case: In this respect he ~

_ _ serves: in somewhat the same. os gpd as counsel at

| lineups and interrogations, which are. both pretrial

2 _.. stages of criminal proceedings where the right to

as counsel has not been held retroactive.” (ag

ae The analogy goes further still because a violation’ of:

Coleman like a violation of Wade- Gilbert does not’ neces-

sarily mean .that either the. pr ‘preliminary hearing or the |

ae line-up involved wag, in fact, ‘unfair. The blanket effect ;

* that -Coleman would. have on cases in’ which trial ‘was _

“perfectly fair’ has been a prime factor in persuading |

| courts to ‘decline to apply Coleman polroapectinyy:. See

*. , pages “The: ‘poate: that the truth determining proc- oo

i Searingy in minimal Zh the vast majority of a

. alky not -divailable at-the preliminary. stage of the proceed-—

. ing for counsel to preserve. Discovery is also unlikely at

such an early stage of the proceedings since the Common-

wealth has always been very. reluctant to ‘open its case

before trial.” Commonwealth v. en 217 Pa, 190, 269

4 A 9 383, 886 (1970).

58 Se ghee : : ; -

x . . ‘ . : .

: ° B . Y > sete nd .

TL TT LTC ETE OI LC LR A ON Ae Me Pr ew

ae oe cs ee

Peinipe ware Carolina, 433-F.-24 659, eo (aene.

1970); United States ex rel. Bonner v. Pate, 430 °F. ‘2 ;

639 (7th Cir. 1969); Kgnvalin’v. ‘Bigler, SIF. 2a 156 (Beh ae

Cir. 1970).

\ “s

It. appears ‘that insofar as ““parpose” ‘is concern 4

AA 333

doctrine of Coleman falls well’ within thé Rossin. :

by Stovall defining what doctrines may be applied. pros-

pectively. Beyond’. this, we believe a ‘consideration of the

factors of reliance and effect on* the administration of

justice will show that Coleman = ‘be deat =e

Where w. ‘fubstantia! Justified Relisinse On Tho Prov:

- sition That Counsel Was Not Required At: Preliminary

Hiassige: hash, Melee, Toe: hete\ Men Tame Daeghete OF

Defendant Could Be Used Against Him At Trial

In Hamilton v. Alabama, 368 U.S. 52- (1961), the peck

held ‘that arraignment - in ‘Alabama: was critical because

corti rights must be asserted at arraignment or lost

*.. 6

forever. The Court held that sucha critical proceeding

required appointment’ of counsel. but - recognized that un- —

der the. various state laws arraignment could be gtruc- -

& _ tured 0\ a9 to. be non-critieal, 268 U.S. at 64, N: 4,

: In White v. Maryland, 373 U.S. 59 (1963) the petition. | ;

er's vuncounselled plea of guilty at a preliminary hearing

was used against him at trial and the Court. held. that,.in

such circumstances, the preliminary hearing was: critical

"and counsel was required. See:

crucial factor. 373 U.S. at 60.

Hamilton. end White when read: ‘toesthen sketed a; co. 3

‘ean rule. The States could ‘not bind a defendant at __

ek ee Ce 3

inary state: when ‘the right to counsel had not been ex:

tended to him. Nor could the States: use his admissions at

‘App. 429 (1968), rev’d, Coleman v. Alabama, 399 U.S.1 2%, .

.(1970); Alaska: Merrill -v. State, 423 P, 2d :

1967), cert. denied xm

_ preliminary hearings. Accordingly, it seemed: clear that if

.- The’ nature wf the bandits Hh involved: in Hamilton-

cs hearings : . inWol€man.” Phillips v. North Carolina, 433

” BF. 2d 659, 661 (4th Cir.1970), 9 *® ,

_ proceedings in Hamilton-White and the typical prelim-

.. inary hearing in Dlinois was specifically relied upon by

. cert. denied, 392 U.S. 910° (1968): In ‘ttn, the. oe in

, People v. Morris was relied upon by-the trial cou! urt

trial if they were made at such a preliminary proceeding.

'. The'rule protected defendants from suffering at. trial the

consequences of their yneounselled acts and omissions at. nt

the States created a total insulation -of the preliminary | ber

hearing from. the ial, the peony he, rule would ees,

satisfied. | i Hk 3

White “is fundamentally different. fram the. ie, ll

This clear logical distinction ‘between the sa

the Supreme Court of ois. See People v. Morris, 30

Mil. 2d 406, 410-412; 197 ‘N.E. 2d 433 (1964); People v

Bonner, 37 Til. 2d 553, 558-59, 229 N.E. 2d 527 (1967),

\ Waited ‘States @x rel. Coo v. Reincke, 333: F, 2d 608

os (2d Cir. 1964), cert. denied, 379 US. 209 pnasedy; ‘Florida:

Illinois .was not alone in its reading of the appticabll

standards. Thietat aco jtepatiotions: made similar rul-

: Sy es ;

‘ oe i.

-18,- Alabama: ‘alae v. haste 211.So. 2d O17 44 ‘Als: a

: State ©

104 Ariz. 174, 450 P. 2d (1968), cer

denied 396 US. ‘868 (1969); California: People v, B

3 Cal. App. 327; 83 Cal. Rptr. 291 (1970) ; Connecticut:

oe,

Yes, ‘ o

ay -

ats

Seem

aa oN

: |

_ The petitioner. argues: that such -teliance was ymjusti--

“fied after Miranda ‘v. Arizona, 384 U.S, 436 {1966}. The —

.' .petitioner’s argument is specious, Miranda was fully.in ~~

- accord with the concept. If counsel: was denied_at inter-

rogation, then the. defendant’s, statements could not’ be

used at trial. ‘This sort of rule is completely. consistent

Montgomery v. State, 176 So. 2d .331 (Pla. 1965), ‘cork.

— denied, 384:U.S, 1023 (1966) ; Georgia: Malignaro ‘v. Balk-

com, 221 Ge. 150, 143 B.E. 2d 748 (1965); Idaho: Freeman |

v. State, 87 Ida. eee 392 P. 2d 542 542 (£964); Kansas: Ray .

-. yy, State, 202. 44, 446 P, 2d 762 (1968); Kentucky:

Howard v. Co si th, 446 S.W. 2d 293-(Ky. 1969);

Maine: Nadeau v. M@tate, 232 A. 2d 82 (Me. 1967), vacated.

‘- Om rehearing, 247 A. 2d 113 (Me. 1968 ); Maryland: Wal. -

"Taco v. State, 9 MdSApp: 131, 262 A. A. 24 789 (1970); Tyl-

~er v. State, 5 Md. App. 265, 246 A. 2d 634 (1968); Mas-

snabinastta: Commonwealth v. O'Leary, 347 Mass.. 387, 198

N B35, 308 (1964); Mississippi: Allred v. State, 187 So. -

iss. 1966); Missouri: State v. Ussery, 452. S.W-

(Mo. (1970); Nebras ca‘ State-v. “Sheldon, 179

7 Neb. 7, 138-N. We (1965), _ cert. denied, 383 U.S.

~ 930 (1968); ; Nevada: Payne v. Warden, Nevada : ‘State

Prison, 85 Nev. 648, 461-P. 2d 406: fay Ne Hamp-

shire: State v. Chase, 109 N.H. 296, 249 eet ra!

New Jersey; State v.. Hale, 45 N.J. 225, 212 A. 2d 146.

(1965); appeal dismissed, cert. denied, 384 U.S. 884 (1966) ;

New York: People v. Smith, 29 A.D. 5%8, 285 N.Y.S. 2d

_ +549 (1967); North git ge Gasque v. State, 271 N.C.

323, 156 S.E. 2d 740, cert. denied, 390 U.S. 1030 (

___-North Dakota: Sta y, Starratt, 153 ‘N.W. 2d 311 |

1967); Ohio: Tabor, v. Maxwell, 3 Ohio St. 2d 106, 209.

N.B. 2d 206 (1965); Oklahoma: Dorrough v. State, 452 P.

2d 816 (Okla. Crim. 1969), Speer v. Page, 466°P. 2d mee.

- (Okla. Crim. 1968); Pennsylvania <n . Frye,

433 Pa: 473,;-252--Az 2a $80 (1969), cert. denied, 396. DS. |:

1967);

- 932 (1969); Rhode Island: State v. Metin BS M0 68 ee

JA. 24° 852 (1951); South Carolina: ‘State v. Hota, iB

pes with Meilibinieiia White ‘and there is nothing in Miranda -.

~ to ‘suggest that anything \more than insulating the trial

_ from ‘the products of a ates a eee eri proceeding a

Yo wes required. - iat ‘ |

“ "There was, in short, no. alba diesiidas ibe of the

Coleman rule..No prior decision had announced the rule

in Coleman and the reliance - -on the Hamilton-White rule

“was substantial. ‘Ses Phillips v. North Carolina, 433 F. 2d —

659 (4th‘ Cir. 1970); Konvalin v. Sigler, 431 EF ed 1156 —

_ (8th Cir. 1970); Commonwealth-v. Brown, 217 Pa. Super.

‘190, 269A 2d 383° bile et ad v. priya 181: Sieh 2d

wep 3

ee ~ Finally, it is- clear that the les of the ‘States was.

not. based solely upon State precedents. Every Circuit

Court of Appeals in this country had held that there was

no federal constitutional requirement for counsel at. the -

.° . type of préliminary hearings-where rights cannot be sac-

ene Fificed or lost. sac Cancel v. Delgado, 408 F. bs 1018

oe Sc. 312, 166. SE. 2d 219 (1969), cert. denied: 397 US.

940 4970); South Dakota: Stgte v. Jameson, 78,S.D. 431,

SSW. 2d 45 (1960); Tennessee: Schoonover, v. State,

nae 2d .90 (Tenn. Crim. App. 1969) ;- Texas: Branch

ceases , 445 S.W. 2d 756 (Tex. Crim. App. 1969); Utah:

Viyginia: Duffield v. Peyton, 209 Va.-178, 162 S.B. 2d 915. -

(goa) Washington: State v. Callas, 68 Wash. 2d 542,

«+ MBPS mk (1966), cért.' denied, 390 U.S. 970 (1968);

- "| West > Virgin ere v.. Coiner, 302 F. Supp. 1151

(NLD, W. Va. "" 1969) ; artin v: Coiner, 299 F. Supe. 553

" (S.D. W. Va.'1969). Hee

A survey conducted’ ‘by Respondent of states without,

recently reported cases on the subject revealed that the

_ states of Montana and Arkansas also relied Raed on

. - old rale.

+ (ist Cir: +: 1969); United States en

383 F. 2d 608 (2d Cir. 1964), cert. denied, 379 US. 909;

(1964); United States ox Fel. Budd v. Maroney, 398 F..

806 (3d Cir. - ; DeToro y.. Pepersack, 382 F. 2d 341 .

e Cire 964), cord? deuiil 379 U.S. 909 (1964) ; Walker:

<¥, Wainwright, 409 F. 2d 1311. (5th Cir. 1969), cert. de-

nied, 396 U.S. 894, (1969); Waddy ¢. Heer, 383 F.2d 789% -

(6th. Cir. 1967), cert. denied, 392 U.S: 911 (1968); Butler. .

v. Burke, 360 F. 2d 118 (7th Cir, 1966), cert. denied, 385

_-U,S.'835, (1966); Pope v. Swenson, 395 F. 24321 (8th Cir.

1968); Wilson v. Harris, 351 F. 2d 840 (9th Cir. 1965),

cert: denied, 383 U.S. 951, -(1966); Latham v. Crouse, 320

F.. 2d 120 (10th Cir. 1963), cert. denied, 875 US. 959,

- (1963); Headen vx. United States; 115| U.S. App. D.C. 81,

i i

«B17 F. 2d 145 (1963).

‘Under ‘these circumstances, the contention that. the

ey) ‘State ‘trial courts. should have known that counsel at pre-

liminary hearing. ‘was an — a UTES is meri

less. 3 ; aa

ree ‘iy, WA Datbabecs

“The Effect On The Administration Of Justice Of A aoe

‘Retrospective Application Of Coleman ¥. Alabama Would ee

‘Be Eubstantial And Highly Undesirable. :

In. the third section. of his‘ brief, petitioner virtually:

concedes that application of Coleman. v. Alabama should

have only limited retrospective | application. He argues

that Coleman should be applied. only to cases in which

defendants objected to the absence of counsel at prelim. —

. inary hearing: prior to: ttial. He states bluntly that “all

other ancien oF perenne to trial with a wari :

’ ite 9%

“i SER

4 : = : 32 % . 4 : ° : g :

H ’ ’ “- “ . t

waived athe point,”3" Then petitioner concludes that, ‘view- ~

‘ed in. this perspective, Coleman's effect on past cases is.

‘minimal, Petitiqner'has been able to find only Bix cases 7

vother than his own where the issue was raised in the trial 3

ne ‘court in Illinois.

ee The petitioner's attempt to limit the reirompectife effect

~ of Coleman proceeds from his realization ‘that ‘to. advo- ~

" gate fall -retrospectivity is to advocate chaos. His .argu-

ment is, of course, inconsistent with his confident claim

that after Miranda v. Arizona, 384:U.S. 436 (1966) the

ae. right to counsel at preliminary hearings was ,perfect- .

: ly clear. Obviously, it was not so very clear for if it were,

: petitioner would find far more than six reparted cases

. where the issue was raised in the trial court. - :

_ Unfortunately, the 3can be no.measure of the number ,

_ of cases which’a fully retrospective application’ of Cole-

man would affect in Illinois: The reason for -this is the |

"variation in local practice. Illinois, like many other states, . i a

provides counsel at, preliminary hearings on an irregular

and unpredictable’ basis. ‘There ‘is a-wide variation among ~-

the counties on the appointment of counsel and, even

* within single counties, the practice may vary. There

swould be hundreds of cases for each year in Illinois prior

“to 1970 in which counsel was not provided at preliminary ee

ER eae yoet,: the. larie the

19, The stearate for the respondent are ‘also’ sess

for the wardens of the various state penal See hraal

"and bear the responsibility for responding. to petitions

for habeas sorpus relief. Tt is more than slightly témpt-

ing to indorse ‘petitioner's “waiver” rule if there. were any

Tenia oe ee ee

of state a

; 3 8 ; : te

‘Mads, of otha recently as 1965 sapbcetuuaty a

thirds \of the states did not uppoint counsel for prelim-

- “Hiary hearings ABA, Standards Relating ‘To Providing

Defense Services, 44 (Approved Draft 1968). Untjl-1964,

the federal courts: did not provide: counsel. See 18 US.C..

- 3006 .A(b) (1964). There can hardly be any question that

the effect of a retrospective application of Coleman

‘would affect far more cases than would ‘the. retrospective

application of Griffin v. California, 380 U.S. 609 (1965)

or Kate v. United. States, 389 U.S. 347 (1967). See Desist :

v. United States,.39@ U.S. 244,.251- (1969). ‘In several .

_ jurisdictions, the gravity of a retrospective application | : :

has been explicitly recognized. See Phillips v. ‘North Caro-

lina, 438 F. 2a 699, 663 (4th Cir.19Y0); State v. Riley,

- 100 Ariz, 318, 475 . 94 932 (Arms. 1970); Locke. v.1 rick-

80m, 181 NW. 2d (SD, 1970). One Court of

has said that a retrospective application of -C

-. “ywoyld be -the genesis for. literally hundreds i catia.

_.viction evidenti hearings: which in sheer numbers

would. virtually. r the bounds of. reality.” Konvalin:

ve Sigler, 431 F. 2d 1156, 1160 (8th Cir. 1970).

The retrospective. application of. Goleman “would: pre- oe

_ gent farther special problems, If Colewen, welt ta be ap-

plied to all past’ éases, it would reqnire ‘that evidentiary.

hearings be held to determine whether the Coléman errot.

‘ was harmless. Coleman v. Alabama, $99 U.S. at 1041. In _—-

. ‘

ee a es oe 2

preliminary hearing will be available. See Phillips v

North Carols: 433 F. 2d 659, 663 (4th Gir. 1970). even

* where the record was available the issue could ziot be re-

ae solved by ¢onsidération ‘of ‘the record alone. Fact deterniv

. inafions. coneerning ‘matters transpiring years’ earlier

would be required frequently." And there would be. the

further eapered ‘of Geb — in High, of du-

Ae ary hearing “tainted” the trial. .

34 o

a ‘ues sinennicmeet of Sachin Aine

pwned on the necessity for requiring: such De ll

. subtle ‘resolutions of taint issues years-after the fact. See

\* Desist .v. United States, 394 U.S; 244, (1969); Stoval v.

Deno, 505, 0-5, AR 500 camcal

“E.Wonelusion.

.& The failure to provide cine at the peelinitaaiy assis. .

ing Below did not, of: course, constitute knowingly dncon- |

.. «8titutional conduct. There is therefore no reason to apply

4 Colema v. Alabama to this. case merely because it is pend- -

ing on direct review. See “Desist v.' United States; 304

: “applic able only to those cases in which the pre

_ " eare in this case petitioner does not challenge, held that

Coteman v. Alabama should notxgpply. retrospectively. Its

ae judgment ‘in this. regard lias ‘been echoed by every court —

‘ that. has had to decide the issue. See. Olsen: ‘vy. Ellsworth,

: 438 FP. 2d 630 (9th Cir, 1971); Brown v. Craven, 438 F. 2d

_. 384.(9th Cire 1971); Phillips. v. North Carolina, 433 F.

2d 659 (4th Cir. 1970); Harris v.. Neil, 487 F. 2d 63 (6th

Cir. 1971); Konvalin v.. Sigler, 431 F. 24 1156 (8th Cir. .-

aan United States ex rel. Bonner v. Pate, 439 F. 2d

639 (7th, Cir:1970); Noe: v, Coz, 320 F. Supp. 849 (W.D. *.

Va. 1970); Crow vy. Weiner, 323 F.Supp. 555 (N.D. W, Va.

1971); Aline ¥. State, 243 ‘So. 24.385 (Ala. Crim. App.

1971); Stddewv. Riley, 196 Aris, 318, 475 P. 2d 932(1970);

_ Billings ¥. @tate, JO Ma. App. 81, 267 .A. 2d 808' (1970);

‘State .v.. Gaffey, 457 BIW. 2d 65T (Mo. 1970); -State-v. a

| Chapman, 65 BAW. 24:72: (Mo. 1971); State ¥, Dutton,

SAti 34S

Ta pt Sis

‘The Supreme Court of Illinois, whose thoroughness and

. wa :

112" NJ. — 402, 271 A 2d 593 (1970);

Locke y. Erickson, 181. N.W.. 2d 100 (SD 1970).

We ask that its + dateeat now be affirmed. ;

11.

COLEMAN V. ALABAMA SHOULD NOT BE APPLIED |

7 en com Soe

woe

LY RETROSPECTIVE.

* The protection of Coleman v. Alabama, -399 US: 1 (1970)

‘is intended for the indigent defendant who is. unable to_

realize on his own the advantages of an attorney’s as-

_ sistance. 399 U.S. at 9-10. The petitioner in this case was : ie

’ represented by privately retained counsel. It was only for -

purposes, of appeal and, of course, after trial that peti-

tioner availed himself of the-right to appointed counsel. °”

Further, the petitioner’s motion. to’ dismiss the indictment,

drafted. by his attorneys, did -not allege indigency. Un-.-

der these conditions the petitioner has not sustained his

burden of proving his inability to’ hire an attorney at the -

preliminary heating. It is clear that petitioner must meet

-. y. Jamés, 440 Ra. 205, 269 A! 24 383 (1970); Common

wealth v. Brown, 217 Pa. Super. 190, 269 A. 2d 383 (1970); ae

this burden: See Kitchens v. Banith, an: Us. ——} 91 Sup. ae

Ct, 1089, 1090 (1971). |

Furthermore, the petitioner never = an inigitten of."

‘ harm either in\his pre-trial motion to dismiss®or in his °

‘post trial ‘motions. Surely if any harm had occurred, it _..

| would have been ‘most apparent and easiest to prove at .

’ that time. unjustifiable absence of any allegation of .

harm ‘at the trial level should Sone the granting of

relief under Coleman.

' . indictment without - -any showing of harm. Under the cir-

| 36

~ Finally, the poi dter sought an eiinegiten remedy, ;

to ‘wit, dismissal of the indictment. At ‘best, petitioner’

ing or to a hearing to show irreparable harm. He sought =

neither, but instead asked the trial court to dismiss the

cuinstances, the ‘trial court wonage: be faulted for Sarin deh ge

he, motion $0 dismiss. a : Oe key

prenatal gate nt Rio, obi aioe a rae a ! |

ts dee OOIOIINION pc eS

The State of Illinois respectfully requests that the a 7

judgment of the Supreme Court of Illinois be affirmed. — -

: Respectfully submitted, . “ea

Wituam J. Soorr,

& | oe Attorney General of the State of Minals, |

First Assistant Attorney General,

James B, seed |

| ‘188 West Randotpe Street (Suite 2200), ,

>=». Chicago, Dlinois, 798-2570,

a : A ac for Respondent.

James R. STREICKER, Seay ua ate

Assistant Attorney. General, nae e323 . ron

Of Counsel. 3 oa .

, ty . .§

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