Petitioners Brief — Burall v. Johnston

ee Pak eS NS ee ee RL RE TENS, CR NT I ea

In the Supreme Court

OF THE

United States

OcToBER TERM, 1944

No.

Lovts BURALL,

Petitioner, |

Vs.

|

James A. JOHNSTON, Warden, United States |

}

Penitentiary, Alcatraz, California,

Respondent. |

BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI.

IL.

THE JURISDICTIONAL QUESTION.

There would not appear to be much merit in the

Cireuit Court’s assumption that non-compliance with

Rule 1 ‘‘would make it difficult’? for a District Court

to perform its functions ‘‘if numerous petitions were

addressed to one judge of the court’. Since June.

1934, approximately 275 petitions have been filed in

——

18

the District Court here by prisoners confined to Al-

catraz. The yearly average of about 28 petitions

means that each of the four district judges here passes

upon 7 such petitions per year under Rule 1. Were

each of these petitions to be addressed to a specific

judge in lieu of the Court the mathematical law of

averages, expressed in petitioners’ choice, would bring

7 petitions before each per year although the names

of the applicants in a given number of cases would be

different from those which might have resulted had

Rule 1 been applied to all the petitions. Were the

28 to be addressed and presented to one judge at one

time it ought not to take in excess of 2 days for him

to take the initial judicial action thereon required by

28: U. S. C. A, Sec. 455. It is not unusual for a

judge of the District Court here to handle 28 matters

on.a single law and motion calendar at one sitting.

A petition for the writ requires an expenditure of no

more effort and time than does passage upon a

demurrer.

However irksome it may be it is no great burden

for a petitioned judge to read a petition and, if it

be found hopelessly defective on its face, to deny the

application or, if it presents only doubtful issues of

law or fact, to issue a rule (order) to show cause why

the writ should not issue thereon and test such

issues as on demurrer, a practice recognized in Ez

parte Yarbrough, 110 U. S. 651. If convineed the pe-

tition states grounds or ah do so if its defects

appear curable by additional pleadings he issues the

writ, returnable at a specified time. The petitioner

19

may be bailed pending a final decision on the merits.

Thereupon the respondent files a return form to the

writ ‘‘certifying * * * the cause of the detention”

(28 U. S. C. A., See. 457) and the petitioner a tra-

verse (§ 460) thereto. The bailed petitioner there-

after appearing, or the respondent producing the

body of the unbailed petitioner in Court, and the

Court then having custody of his body pursuant to

the command of the writ, the summary hearing on the

merits under § 461 is had to determine whether the

petitioner be discharged from unlawful restraint or

be remanded to his jailor. The question whether the

actual hearing on the merits maybe transferred by

a petitioned judge to the Court or to another judge

after the writ has been issued presents a question

not involved in this case.

The Circuit Court’s panel opinion herein stresses

the importance of the jurisdittion question yet does

not cite any authorities or mention 28 U. S. C. A,

Sec. 455, much less construe its mandate for sum-

mary judicial action of the judge addressed.

Instead it adopts a district judge’s opinion in

Wright v. Johnston, 49 F. Supp. 748, 749, and sus-

tains the refusal of Judge Roche to act on the petition

and his attempt to transfer his jurisdiction on the

same ground of convenience condemned in Holiday

v. Johnston, 313 U. S. 342. The District Court’s

opinion and the Circuit Court’s casual opinion do not

mention Holiday v. Johnston, much less attempt to

distinguish it.

20

The adopted District Court opinion, while setting

forth § 455, nowhere construes its terms. Instead it

refers to § 452‘ giving the petitioner the choice of

eight Supreme Court justices, seven Circuit judges,

four District judges and the District Court. Of that

section the adopted opinion says (p. 749):

“Tt is true that under 28 U.S. C. A. § 452, the

several Judges of this court are empowered to

grant writs of habeas corpus. Jt does not follow,

however, that it is mandatory upon the judge, to

whom a petition for writ of habeas corpus is ad-

dressed, to pass upon such petition; * * **\»

Obviously t does not follow from § 452 that it is

mandatory on the addressed judge to act summarily

or otherwise on the application to him as judge. But

casually to say the same of the words of § 455, that

the judge chosen of the nineteen ‘*‘to whom such appli-

cation is made shall forthwith grant the writ,’’ if

properly applied for, is no more than disposing of

this admittedly important question by stating ‘“‘It is

not so.”’

The opinion of the Circuit Court, in adopting that

in Wright v. Johnston, supra, holds that a petitioner

to a judge for a writ of habeas corpus has no more

right to choose his judge than an ordinary civil liti-

4°§452. Power of judges; place of entering order of Cireuit

judge. The several justices [8] of the Supreme Court and the

several judges of the Cireuit Courts of Appeal ‘here 7] and of the

District Courts [here 4], within their respective jurisdictions,

shall have power to grant writs of habeas corpus for the purpose

of an inquiry into the cause of restraint of liberty * * *”’,

21

gant filing his complaint in the Court.’ The obvious

answer is that Congress in § 452, supra, has given

such a petitioner in the Northern District of Cali-

fornia the choice of nineteen justices and judges.

It is true that in the summary action of the district

judge he has a discretion to issue an order to show

cause Why the writ should not issue and that such

procedure satisfied the requirement of the word

“forthwith,”’ as held in Walker v. Johnston, 312 U. 8.

275, 284. However, nothing in the reasoning of that

case warrants the district judge to whom the petition

is addressed to refuse to take any judicial action at

all.

The adopted district court opinion in support of

Judge Roche’s refusal to act and the substituted

rotative rule of the Court action instead of action

by the addressed judge, states at page 750 that “The

propriety of such action was recognized in Ex parte

Clarke, 100 U. S. 399, 403, * * * See, also, In re

Fitton, C. C., 45 F. 471.”

In adopting these authorities the Circuit Court

failed to hese sinch less comment that in each of these

*An application for the writ addressed and presented to a Court,

as distinguished from one addressed and presented to a single

justice or judge, is to be construed as one signifying an intention

upon the part of the applicant that it be considered by any justice

or judge thereof to whom it may be assigned by the clerk of that

Court pursuant to a rule of Court convenience, its practice or

custom. There is no such election when it is addressed and pre-

sented to a personally selected justice or judge whose personal

original jurisdiction, lodged by § 452, is invoked under § 454 and

’ whose duty it is under § 455 to take immediate judicial action

thereon. There is no authority lodged by Congress in a per-

sonally selected justice or judge to refuse jurisdiction or to shift

or to delegate it, the mandate of § 455 requiring him to take

action thereon himself.

a

22

‘“ases a judge addressed awarded the writ. In Ez

parte Clarke the petition was addressed to all ‘‘the

Judges of the Supreme Court.’’ One of them ordered

the Supreme Court to issue the writ making it re-

turnable to him. The prisoner was brought before

him, taken from the jailor and admitted to bail. The

justice then ordered the case heard by the Supreme

Court, that is before al! the judges to whom the

petition was addressed. Thereafter came the more

deliberative process of considering the merits. The

question here is not whether this is proper procedure,

after the writ is awarded by the judge and issued by

the Court. What is here concerned is the initial action

of the judge under § 455, by which the imprisoned

man is taken out of the custody of the jailor or kid-

naper and into the custody of the judge or Court.

Nothing in these two cases warrants a_ judge's |

refusal to take any action on the petition. On the

contrary, the Supreme Court in Lx parte Clarke (p.

403) states of the judicial action after the justice

awarded the writ and the jailor made his return and

produced petitioner’s body, ‘Of course, under our

system, no justice will needlessly refer a case to the

court when he can decide it satisfactorily to himself,

‘and will not do so in any case in which injury will

be thereby incurred by the petitioner. No injury can

be complained of in this case, since the petitioner

(after he was produced on the awarded writ) was

allowed to go at large on reasonable bail.’’ J

Nevertheless, in reliance on this case, the Cireuit

Court’s opinion says the addressed judge may refuse

to act on the petition and instead file it in the Court,

23

in which it is not entitled, and have the petition acted

upon by a different judge emerging from the hopper

of the rotation rule!

The adopted District Court opinion cites cases in

which Cireuit judges have refused to act because of

interference with their appellate functions. Whether

or not the difference in functions warrants the refusal

of a Circuit judge to act judicially on the writ has

not been decided by the Supreme Court, but the rea-

soning in these cases affords no ground for the refusal

to act by the District judge. All are based on the

theory that the petitioned District judge must act

on such a_ petition.®

To the statement of the three-judge panel’s opinion

that the judge to whom the petition is addressed may

die and hence is entitled to ignore the command that

he “‘shall forthwith award the writ,’ it seems appar-

ent that if he be dead he cannot transfer the juris-

diction to another judge.

®In United States v. Hill, 71 F. 2d 159 (CCA-33}, the Court

states “‘28 U.S.C.A. § 452 confers power upon the judges of the

Cireuit Court of Appeals to grant writs of habeas corpus. This

does not mean, however, that a judge of the Cireuit Court of

Appeals is bound to entertain such application when it might have

been made to a judge of the appropriate District Court. In the

instant case there were no circumstances alleged which would

make it necessary for a judge of the Cireuit Court of Appeals

to allow the writ, since the appellant might have applied to either

of two District Judges within the Middle District of Pennsylvania,

where the appellant is confined. Neither is there an allegation in

the petition that an application had been made to either of these

judges. A refusal by Judge Woolley to take jurisdiction did not

deprive the appellant from making an application to a judge of

that district * * *’’ See also, relying on United States v. Aili,

O’Brien v. Swope, reported in 102 F. 2d 471 and Sweetney v.

Johnston, reported in 121 F. 2d 445, through opinions of a Circuit

judge acting singly.

24 .

The opinion of the three-judge panel, in further

justification of a transfer of the jurisdiction from

the addressed judge to another judge, states that ‘‘The

application of this rule (Rule 1 of District Court,

supra), could work no injustice on petitioners for the

reason that any petitioner who is dissatisfied with the

decision of the District Court has recourse to the

right of appeal, which has never been denied him if

made in good faith.”’

That is to say, the right of appeal from a Court

lacking jurisdiction confers that jurisdiction. This

obvious non sequitur further shows the casual con-

sideration of this important question, here presented

for the first time to any Appellate Court.

The opinion of the three-judge panel also states

that it may not be “necessary” to decide whether the

petitioned judge may refuse to act upon the petition

and by the District Court Rule 1 transfer his jurisdie-

tion to another judge or, as here, to a Court. It is

obvious that the Circuit Court, sua sponte, was re-

quired to determine such a jurisdictional question,

whether raised by the parties or not. Here the juris-

dictional question was raised by the parties and in

the Court’s opinion, as in the question stated by the

Circuit Court, supra. -

II.

THE DENIAL OF COUNSEL QUESTION.

A U.S. Commissioner is an adjunct of the Court,

possessing independent, though subordinate powers of

his own. (Grin v. Shine, 187 U. S. 181, 187.) The

25

preliminary hearing before him is a judicial hearing

and an integral and important part of the criminal

prosecution mentioned in the Sixth Amendment. If

he finds, upon examination of both sides, a want of

probable cause justifying the complaint against an

accused he is empowered to dismiss the prosecution

that has been commenced. If he finds probable cause

exists he is empowered to lend impetus to the prose-

cution. He is, in fact, an examining and committing

magistrate whom the Congress has authorized the

District Courts to appoint, the power of appointment

being permissive and not mandatory, (28 U. 8. C. A.

Sec. 526.) Upon acceptance of office he performs the

specific statutory judicial duties which the Courts

must perform if he refuses to act.7. The Courts may

and, if a commissioner be not appointed or refuses to

act, must perform the limited magisterial duties re-

quired of him as incidents to their regular judicial

duties. Without congressional authorization the

Courts would not be empowered to delegate any part

of their judicial functions to commissioners, as held

in Holiday v. Johnston, supra, and of necessity would

perform those functions themselves.

The right to be represented by counsel would be of

little significance if the denial thereof did not operate

to deprive the Court wherein the cause was pending

of jurisdiction to proceed whether the deprival was

occasioned by a commissioner or a judge. It is of

little importance whatever if it may be taken away

‘These powers are set forth in: 28 U.S.C. A., Sees. 526, 529,

530, 758, 18 U.S.C. A., Sees. 591, 594, 596, 611, 614, 615, 627,

and 8 U.S.C. A., Sees. 45, 49 and 50,

“a

at one stage of a criminal prosecution and restored |

at another. It might as well be dispensed with en-

tirely. If a district judge is precluded from depriv-

26

ing an accused of counsel during the progress of a

criminal prosecution, a commissioner, acting at the

preliminary hearing stage of the prosecution as a

substitute for the judge, likewise is precluded from

depriving an accused of his right to counsel.’ The

violation, being enjoined by the Constitution, is one

of a jurisdictional nature causing the Court to lose

jurisdiction to proceed until the defect is corrected.

The right to representation is not a mere matter of

grace or simple privilege—but a fundamental sub-

stantive right that extends to ‘every step in the pro-

ceedings”. (Johnson v. Zerbst, 304 U.S. 458, 463, and

Powell v. Alabama, 287 U.S. 45, 68, 69. Also com-

‘The criminal prosecution of the petitioner took place in Il.

linois, (R, 4.) Under 18 U.S. ©. A., See. 591, a commissioner per-

forms the magisterial duties of an examining.or committing magis.

trate, the same powers being lodged in him as in a district judge,

state judge or justice of the peace. The commissioner who is al-

leged in the petition for a writ of habeas corpus involved herein

to have conducted petitioner’s preliminary hearing, exercised the

magisterial powers which a judge or justice of the peace in Il-

linois was authorized to exercise. See Illinois Criminal Code,

Ch. 38, Sees. 687, 688, 697, 698, 703 and 706. There being no

federal statute expressly requiring a commissioner to notify an

accused of his right to counsel or authorizing him to deprive an

accused of such representation the law of Illinois is automatically

invoked and becomes applicable under 28 U.S.C. A., See. 725. It

is significant that its Criminal Code, Ch. 38, See. 754, provides,

‘‘Every person charged with crime shall be allowed counsel, and

when he shall state upon oath that he is unable to procure coun-

sel, the Court shall assign him competent counsel, who shall con-

duct his defense. In all. cases counsel sha!! have access to per

sons confined, and shall have the right to see and consult such

persons in private.’’ The 6th Amendment also appears to guar

antee the right to counsel from the time an accused is charged with

crime. t

27

pare Pierre v. Louisiana, 306 U. S. 394.) If violated

with impunity it would lose its organic character,

ceasing to be a rule of substantive constitutional law

and becoming converted into a mere rule of adjective

law which might be ignored or be presumed to be

waived. This Court has declared, however, that the

Courts must ‘‘indulge every reasonable presumption

against waiver’’ of fundamental constitutional rights.

(Aetna Insurance Co. v. K ennedy, 301 U. S, 389, 393.)

It has also declared that they ‘do not presume ac-

quiescence in the loss of fundamental rights’. (Ohio

Bell Telephone Co. v. Public Utilities Commission,

301 U. S. 292, 297, and Johnson v. Zerbst, supra.)

If a commissioner may deprive an accused of the

services of counsel he can act as a Star Chamber, can

exact confessions and declarations against the interest

of an accused, by unlawful methods, and these could

be used against the accused at the trial.

In U. S. v. Bollman, Fed. Cas. No, 14,622, which

altered the earlier rule announced in In re Bates

(1858, D.C.), Fed. Cas. No. 1099a, it was decided that

an accused is entitled to the services of counsel at his

preliminary hearing. (See, also, Wood v. U. S., 128

Fed. (2d) 265, 271.) The great weight of authority

in the several state jurisdictions is in accord. (See

summaries and citations in 84 L. Ed. 390-396.) In

Avery v. Alabama, 304 U. S. 444, this Court declared

that the denial of ‘“‘any representation of counsel at

all” would invalidate the criminal prosecution. In

Anderson v. Treat, 172 U.S. 24, the question whether

a deprival of the right to counsel at a preliminary

ery

a5

iS -

Ae ini SRE RH a yagR EY RENIN DRI, LINE ER TOPOL OL y

28

hearing before the commissioner deprived the trial

Court of jurisdiction over the cause and invalidated

the proceedings from that point on was recognized as

posing a substantial federal question but was not de-

termined because the record disclosed the accused had

waived that hearing. The precise question does not

seem to have been passed upon by any appellate

tribunal except the Circuit Court below in the un-

precedented decision in the instant case

The Sixth Amendment does not confine the right of

an accused to be represented by counsel to the time

of arraignment for plea before the Court and to the

trial. It expressly guarantees the right in all criminal

‘“‘proseeutions’’, a term seemingly embracing and in-

tended to embrace every stage of the prosecution from

the lodging of a complaint te the passage of sentence,

The Court has jurisdiction over the cause and over

the person of the accused from the moment a com- .

plaint is filed and the defendant is arrested and taken

into custody. The right is not restricted to actual ap-

pearances by counsel in a courtroom but includes the

accused's right to full representation and consultation

at any and dp Bowen Sere within and outside

the courtroom, from the ti ¢ the complaint is lodged

until sentence is passed and the prosecution is termi-

nated. If the right includes such services at the pre-

liminary hearing and also at times prior thereto dur-

ing the progress of the criminal prosecution, as rec-

ognized in Anderson v. Treat, supra, it would seem

that a deprivation of the right would deprive the

Court of jurisdiction to proceed in the absence of

29

a deliberate waiver upon the part of the accused. The

corrective method to restore to the Court the lost juris-

diction would be to vacate the proceeding and proceed

anew with the prosecution from the point where the

jurisdiction was lost. This may be accomplished by

a direct attack upon the judgment by a motion to

vacate instituted by the defendant or the Court, or

by appeal or by collateral attack through the medium

of an application for a writ of habeas corpus.

It is significant that eases in which a commissioner

fails to inform an accused of. his rights are rare—

and cases wherein he denies an accused the right to

be represented by counsel, as alleged in the petition

presented to the district judge below, are even rarer.

Rule 5b of the Federal Rules of Criminal Procedure

which has been submittéd by this Court to Congress

for approval provides:

“The commissioner shall inform the defendant

of the complaint against him, of his right to re-

tain counsel and of his right to have a preliminary

examination. He shall also inform the defendant

that he is not required to make a statement and

that any statement made by him may be used

against him. The commissioner shall allow the

defendant reasonable time and opportunity to

consult counsel and shall admit the defendant to

bail as provided in these rules.’”’

When the proposed rules are enacted into law we

believe that commissioners will be able to ascertain

their duties concerning the right of representation

With greater ease than heretofore when they were

. * ™ > Lion

- ———

30

compelled to examine not only the Constitution, f

eral statutes and decisions, but also state law and

common law for light upon the subject. When

new rules become effective commissionérs will be a

to offer no excuses for violations of the rights

accused persons to counsel.

If the alleged deprivation of the petitioner’s ri

to counsel at his preliminary hearing by the com

sioner were to be declared as having no effect u

the validity of the judgment of conviction the*sa

guards of the Sixth and Fifth Amendments wo

lose much of their significance and the right to co

would be destined, in the future, to be more hono

in the breach than in the observance.

For the foregoing reasons we believe that a writ

certiorari directed to the Ninth Cireuit Court of

peals should be granted.

Dated, San Francisco, California,

April 23, 1945.

Respectfully submitted,

Wayne M. Cours,

Counsel for Petitio

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