# Respondents Brief — Adams v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0366%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1972 - **Citation:** 405 U.S. 278 ## Text #2 fe) ; 7 Pace 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 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 © 4969) ....... et ee ne eee 30 .. 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 30 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 2. ‘? rN | iy fi, i . , y ° wo : , ! ix. ° A 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 . . - al . . . ° ° ry * 4 o wY . . oe . eS 4 . - ” ° ~*~. ‘ ‘ « . . . . . . ° ~e. o 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- 4 nue, | they transfered over to Orleans, and then’ walked down Orleans to Oak Street and entered a Rexall Drug 4 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 ° > 5 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 \ y | 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, ‘ . a? 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, av 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, ; . \ ' er “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 I. THE APPLICATION OF COLEMAN V. ALABAMA .. SHOULD: BE RESTRICTED TO CASES IN WHICH PRELIMINARY HEARINGS* WEES HELD Arlee JUNE 22, a ; 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 14 ~ 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). . e “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 16 - 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.” en 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). 18 “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- nn NX oo 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. ¢ r 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 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)... | Oo "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. _ 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 e inary state: when ‘the right to counsel had not been ex: tended to him. Nor could the States: use his admissions at we ‘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- h~ : 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, 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. . Pa + (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: =». 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 . .§ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0366%3A2. Public record. Not legal advice.