Amicus Curiae Brief — Illinois ex rel. Marino v. Ragen

IN THE DEC 1 7 1949

Supreme Court of the United States, ,,... -..-.:

Ocrosper Term, 1949.

Nos. 221 and 222, Misc.

PEOPLE ex ret. TONY MARINO,

Petitioner,

vs.

JOSEPH E. RAGEN, Warpey, etc.,

Respondent,

and

TONY MARINO,

Petitioner,

vs.

STATE OF ILLINOIS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF ILLINOIS,

BRIEF AND ARGUMENT OF AMICUS CURIAE

IN OPPOSITION.

/ Roserr R. CANFIELD,

State’s Attorney of Winnebago

County, Illinois,

Amicus Curiae.

Date F. Conner,

Assistant State’s Attorney,

Winnebago County, Illinois,

Joun S. Guent,

Assistant State’s Attorney,

Winnebago County, Illinois,

Of Counsel.

INDEX

PAGE

SGN TE nc ana acca ctuceaéatecenacned 1

i ns hos een ene vkbeneahhokeneuen 3

PEE a nuic 44054 x00r4nnseeh os haben eenasne 5

I Tr OE, oo 5 ann 6-danekancnecnsacnnsnces 7

| PPPVETTTTUT TTT eT CLT eT rer eter ee 8

EN -x.00 04500404 4062060 GEEKE ETOCS LEER A EEO EAS 13

SEEN Sh Noack dn ccdanucbecesdiwcens) Ocetenkannees 15

TasBLE oF Cases CITED.

Allman v. Aldredge, 65 Ga. 269 ................000. 8

Sean 'W. GRUNT, TOG TF. TE Ge oon cscs ccicncntavces 10

SUE Ci UR, De Bee NE eho e cc valke ceveanece 12

Demaurey v. Swope, 95 F. 2d 839 .................. 9

Due OW. GER, RE Ws GN UE hve vent asecscdcvecenst 10

ee Pe Teer eee 8

mem parte Moan, BAR Hs SD vic icc c cde i ence cicceceds 9

Ex parte Tremper, 126 N. J. Eq. 276 ................ 9

weeeemar w. Wma, GE Be WO on wick cic des cds 12

mn Wy SA, GE RO GR van hove ces ctck do cedawades 9

Magniglia v. Commander of the Guisseppe Verdi, 5 F.

Be GD a vucetenucedudceweiubescaeeabiacesukecwe 9

Pagett v. McCauley, 95 F. 2d 839 .................. 8

eee Wi Ghee Ue Te, Ge in cans anecnccacsedcncs 13

ee Wi. SPONGY I OE nos ca cedencachdaccaucn 12

People v. Jordan, 292 Ill. 514 .............. eer 13

ii

People v. Lieber, 357 Til. 438 2.1... ccc ccccccccccens 12

People v. McCauley, 256 Ill. 504 .................. 12

PORES VW. EUG, SO Ti BE onc sc cncccccecnsnces 12

People ex rel. Niemoth v. Traeger, 339 Ill. 356 ...... 9

People ex rel. Titzel v. Hill, 344 Ill. 264 .............. g

People ex rel. Wakefield v. Montgomery, 365 Ill. 478 .. 9

Remaley v. Swope, 100 F. 2d 31 ............0ccceees +

Salinger ee Ss Se errr 8,9

Sander v. Johnston, 11 F. 2d 509 ................2.. .

Sealfon v. United States, 332 U.S. 474 .............. ll

State v. Hensley, 27 Wash. 2d 938 .................. 12

United States v. DeAngelo, 137 F. 2d 466 .......... ll

United States ex rel. Bergdoll v. Drum, 107 F. 2d 897 8

United States ex rel. Innes v. Hiatt, 50 F. Supp. 756 10

United States ex rel. Mills v. Ragen, 77 F. Supp. 15 9

United States v. Oppenheimer, 242 U. S. 85 ........ ll

Voigt v. Mahoney, 10 Wash. 2d 157 ................ 9

Wells v. United States, 318 U. S. 257 .............. ll

Wells v. United States, 158 F. 2d 833 ................ ll

Wheeler v. Kaeser, 45 F. Supp. 937 ................ 8

Williams v. Lawrence, 193 Ga. 381 ................ 8

Wilson v. United States, 166 F. 2d 527 .............. ll

Wong Doo v. United States, 265 U. S. 239 .......... 8

Wong Sun v. Fluckey, 283 F. 989 .................. 10

ee SA ah. Ge. IE, TIO GT nn a an es cccccnnccdecs ll

IN THE

Supreme Court of the United States

Ocroser Term, 1949.

No. 221 Misc.

No. 222 Misc.

PEOPLE ex ret. TONY MARINO,

Petitioner,

vs.

JOSEPH E. RAGEN, Warnden, Etc.,

Respondent,

and

TONY MARINO,

Petitioner,

vs.

STATE OF ILLINOIS,

Respondent.

N PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF ILLINOIS.

BRIEF AND ARGUMENT OF AMICUS CURIAE

IN OPPOSITION.

'0 the Honorable Fred Vinson, Chief Justice of the United

States, and Associate Justices of the Supreme Court of

the United States:

PRELIMINARY STATEMENT.

This brief is submitted as amicus curiae by the State’s

ittorney of Winnebago County, representing the County

f Winnebago, a subdivision of the State of Illinois.

2

The State’s Attorney of said County was amicus curiae

in the lower court decisions sought to be reviewed by this

petition. The State’s Attorney, however, was not officially

notified of this petition and does not have a copy of the

Abstract of Record filed in this Court. The Attorney Gen.

eral of the State of Illinois has consistently confessed error

in every step of the many legal proceedings involving this

petitioner, and in substance did not oppose the petitioner in

the cases sought to be reviewed in this petition. As a

matter of fact, the position of the State’s Attorney was the

one adopted by the Supreme Court of Illinois in their deci-

sions on these cases. The State’s Attorney of Winnebago

County, Illinois has been the only one to oppose this peti-

tioner at any time.

The case arose in Winnebago County and that County is

vitally concerned. In order to insure that there will not

be another ‘‘confession of error’’ in this Court this brief

has been prepared and is submitted.

STATEMENT OF FACTS.

Due to the fact petitioner’s statement of the matters

‘nvolved does not accurately state what has occurred and

is largely argumentative, the following statement is sub-

mitted:

The petitioner was indicted April 17, 1925 by the Grand

Jury for the April, 1925, term of the Circuit Court of

Winnebago County, Illinois, on a charge of murder. On

April 21, 1925, he appeared in open court, was arraigned,

furnished with a copy of the indictment, and a complete list

of witnesses and jurors. On April 23, the record shows

that the Court explained to Marino through two inter-

preters, Daniel Torrisi and Joe Marino, the meaning and

effect of a plea of guilty, and the punishment that the Court

could render in the case. After such explanation, Marino

filed a written waiver of trial by jury and entered a plea

of guilty to the indictment. On April 24, 1925, Marino was

in Court in person, and the Court on its own motion heard

evidence in Mitigation of the offense. On April 25, 1949,

with Marino in court in person, judgment and sentence of

the court was passed and Marino sentenced to life impris-

onment. The record includes the signed jury waiver which

includes a plea of guilty.

After twenty-two years of incarceration without com-

plaint that he was innocent or that he did not have a fair

trial, petitioner filed a petition for writ of habeas corpus

in the Cireuit Court of Winnebago County, Illinois. The

petition was heard and the writ ordered quashed on the

grounds that the Court had no jurisdiction to grant said

writ on the facts disclosed. Thereafter, the petitioner filed

a petition in this Court for a writ of certiorari. The peti-

tioner’s petition was granted and the judgment, upon a

confession of error by the Attorney General of the State

+

of Illinois, vacated and the cause remanded to the Circuit

Court of Winnebago County for further proceedings in

accord with this Court’s mandate. (Marino v. Ragen, 332

U. S. 561, 68 S. Ct. 240, 92 L. Ed. 170.) Subsequently, this

Court was petitioned to clarify its opinion and mandate,

and in Marino v. Ragen, 333 U. S. 852, 68 S. Ct. 729, 92 L,

Ed. 1133, this Court declined to do so, thereby approving

the interpretation of the Mandate by the Circuit Judge of

Winnebago County who had ordered a full hearing.

The Circuit Court of Winnebago County thereupon con.

ducted an extensive hearing into the merits of the peti-

tioner’s contention that he had net had a fair trial, and the

Court found that petitioner’s contentions were without

merit and that his constitutional rights were not violated;

the petition was again denied. The petitioner then peti-

tioned this Court on Writ of Certiorari to review the action

of the Circuit Court of Winnebago County. This Court

denied the petition in No. 30 Misc. Marino v. Ragen, 93 L.

Ed. 862; rehearing denied, 93 L. Ed. 1038. The findings

and order of Honorable William R. Dusher, Judge of the

Circuit Court of Winnebago County, Illinois, which were

sought to be reviewed in the above petition for Writ of

Certiorari, is incorporated in this brief as Exhibit ‘‘A’’.

In the meantime, petitioner had filed in the Supreme

Court of Illinois a petition for writ of mandamus, a peti-

tion for a Writ of Certiorari, a petition for Writ of Habeas

Corpus, and a petition for writ of error. The petition for

writ of mandamus and certiorari were denied, but the peti-

tioner was allowed to file the petitions for Writ of Habeas

Corpus and for Writ of Error. After consideration of the

above, the Supreme Court quashed the writ of habeas

corpus in People ex rel. Marino v. Ragen, 404 Ill. 35, and

on the writ of error, in People v. Marino, 404 II. 37, affirmed

the Circuit Court of Winnebago County, Illinois. Jt is the

above two decisions which are sought to be reviewed in this

action.

ISSUES INVOLVED.

This petition for writ of certiorari is to review the action

of the Supreme Court of Illinois in the refusal to grant a

writ of habeas corpus and in affirming the original judg-

ment of conviction on the writ of error.

In the petition for writ of habeas corpus filed in the

Supreme Court of Illinois as an original action, the Court

held that since nothing new was presented in the petition

that had not been finally determined in the petition for

writ of habeas corpus filed in the Circuit Court of Winne-

bago County, Illinois, upon which certiorari was denied in

this Court, and since that was a final determination when

this Court refused certiorari that the matter was res

judicata, and therefore the Court quashed the writ. The

only issue before this Court is whether the Supreme Court

of Illinois erred in so disposing of the petition.

The petition for writ of error is somewhat more involved.

There the Supreme Court of Illinois held that the constitu-

tional questions involved in the original proceeding had

been passed upon in the Circuit Court of Winnebago

County in the petition for writ of habeas corpus, which

decision was subject to review only by this Court, and this

Court having refused to grant certiorari that those matters

were res judicata and the Supreme Court of Illinois would

not review them further. That left the contentions by

petitioner that the Grand Jury had not been drawn accord-

ing to Illinois law, and that the State’s Attorney instead of

the judge charged the grand jury, and that two officers

instead of one were sworn to be in charge of the jury. The

Supreme Court of Illinois held that the above objections as

to the assembly, selection and conduct of the Grand Jury

were without merit, and affirmed the judgment of the Cir-

6

cuit Court of Winnebago County. The issue before the

Court is whether the Illinois Court erred in their decisions,

The petitioner has in his petition and brief and argument

attempted to interject into this appeal another review of

the action of the Circuit Court of Winnebago County in

quashing the petitioner’s writ of habeas corpus. Petitioner

has dwelt at length on the proceedings in the hearing before

Judge Dusher on that writ. But it is obvious that that

matter does not properly come into this petition because —

here it is the action of the Supreme Court of Illinois that

is concerned (a) in their quashing a writ of habeas corpus

filed as an original action, and (b) in affirming the 1925

judgment of the Circuit Court of Winnebago County on the

writ of error.

SUMMARY OF ARGUMENT.

Previous denial of a petition for writ of habeas corpus

may be considered and given controlling weight in deny-

ing a subsequent petition.

The petition for writ of habeas corpus now under con-

sideration alleges identical grounds as a previous petition

upon which a complete hearing was had and final decision

made quashing the writ. Therefore, it was proper for the

Supreme Court of Illinois in its judicial discretion to

quash this writ.

The principle of res judicata applies to criminal cases as

well as civil cases.

In the petition for writ of certiorari now under consider-

ation, identical contentions are made which were previ-

ously finally disposed of, and that disposition is res judt-

cata as to those contentions. Under Illinois law objections

to the assembly of the Grand Jury can only be taken by a

challenge to the array or by motion to quash the indict-

ment.

The fact that the State’s Attorney instead of the Judge

charged the Grand Jury does not affect the validity of

the indictment, nor does the fact of more than one officer

appointed in charge of the Grand Jury.

Matters concerning the assembling, and proceedings of

the Grand Jury are matters of Illinois state law with which

this Court has no interest.

ARGUMENT.

I.

We are first considering the petition for writ of certi-

orari on the quashing of the petition for writ of habeas

corpus by the Supreme Court of Illinois (lower court

opinion, People ex rel. Marino v. Ragen, 404 Ill. 35).

Although the law of res judicata has not been strictly

applied to successive petitions for writ of habeas corpus

(except in two cases, Allman v. Aldredge, 65 Ga. 269, 18

S. E. 2d 478, Williams v. Lawrence, 193 Ga. 381, 18 S. E. 24

463), the law is well settled that a denial of a previous

similar petition for writ of habeas corpus may be con-

sidered and may be given controlling weight in denying

a subsequent petition. (Salinger v. Loisel (1924), 265 U.S.

224, 68 L. Ed. 989, 445 Ct. 519; Wong Doo v. United States

(1924), 265 U. S. 239; Sander v. Johnston (1926 CCA 9th

Cal.), 11 F. 2d 509; Pogett v. McCauley (1938 CCA 9th

Wash.), 95 F. 2d 839; Remaley v. Swope (1938 CCA 9th

Wash.), 100 F. 2d 31; United States ex rel. Bergdoli v.

Drum (1939 CCA 2d NY), 107 F. 2d 897.)

In determining whether such a prior determination

should be controlling, the cases hold that it is important

to consider whether the grounds of the prior petition are

the same as alleged in the subsequent petition, the full-

ness of consideration which had been given the prior peti-

tion, and the character of the Court to whom the first

petition was addressed. (Salinger v. Loisel, supra, ex

parte Cuddy (1889:CC), 14 Sawy. 171, 40 F. 62; Wheeler

v. Kaeser (1942; DC Mo.), 45 F. Supp. 937.)

In the present case the petition for writ of habeas corpus

now under consideration alleges identical grounds for

—

9

relief as did the petition for writ of habeas corpus which

was addressed to the Circuit Court of Winnebago County,

[llinois. After a complete hearing the writ was quashed,

and upon petition for certiorari direct to this Court, such

certiorari was denied. Under Illinois law habeas corpus

proceedings are not reviewable in the Illinois courts. (Peo-

ple ex rel. Titzel v. Hill, 344 Ill. 264, 176 N. E. 360; People

ex rel. Niemoth v. Traeger, 339 Ill. 356, 171 N. E. 548;

People ex rel. Wakefield v. Montgomery, 365 Ill. 478, 68

N. E. 2d 868; United States ex rel. Mills v. Ragen, 77 F.

Supp. 15.) Therefore, when this Court denied certiorari,

the judgment of the Circuit Court of Winnebago County,

Illinois became final and not subject to review.

Since the judgment of the Circuit Court was final, and

was based on identical grounds as the one in the Illinois

Supreme Court, it is entitled to great weight in the subse-

quent petition. In Magniglia v. Commander of the Guis-

seppe Verdi (1935 DC Mass.), 5 F. 2d 680, the Court was

faced with a petition for a writ of habeas corpus which

was similar to one previously adjudicated and the Court

dismissed the petition stating that while the decision of the

New York Federal Court ‘‘may not be res judicata, it has

long been the established practice that one Court will not

allow a writ when some other judge has refused it unless

a substantial change in the circumstances has intervened.”’

To the same effect is Demaurey v. Swope (CCA Wash.), 95

I’. 2d 839; Ex parte Tremper, 126 N. J. Eq. 276, 8 A. 2d

279; Voigt v. Mahoney, 10 Wash. 2d 157, 116 P. 2d 300;

In re Clyne, 52 Kan. 441, 35 P. 23. In Ex parte Moebus

(1906 CCA N. H.), 148 F. 39, the petitioner had made

two prior applications for the writ, one to a justice of

the Supreme Court and another to the District Court for

New Hampshire, and finally the instant one to the Circuit

Judge, and the Court said in denying the writ that as a

practical matter of administration no judge should allow

a,

10

a writ when some other judge has refused it. See Beard

v. Bennett (1940), 72 App. DC 269, 114 F. 2d 578; Wong

Sun v. Fluckey (1922 D. C. Ohio), 283 F. 989 (aff'd in

265 U. S. 239) ; United States ex rel. Innes v. Hiatt (1943,

DC Pa.), 50 F. Supp. 756.

In Dorsey v. Gill (1945 88 PP. DC 9), 148 F. 2d 857,

the entire subject is thoroughly considered reviewed and

the Court held that the fact that the same issues had been

decided in a former proceeding should as a matter of

judicial discretion be given controlling weight.

In the case a. bar, the hearing in the first petition was

exhaustive and detailed. The findings of the Honorable

William R. Dusher, Circuit Judge of Winnebago County,

Illinois, which are attached to this brief as Exhibit ‘A”,

show that there was a full and complete examination of

the same grounds that are made in this petition and those

grounds were found to be without merit. Certainly that

should be deemed sufficient that in the sound judicial dis-

cretion of the Supreme Court of Illinois when faced with

another petition alleging the same facts it was proper to

quash the writ deeming the previous adjudication to be of

controlling weight.

Il.

As to this petition for writ of certiorari to review the

Supreme Court of Illinois for their action in affirming the

1925 judgment of conviction of Marino (People ex rel.

Marino v. Ragen, 404 Ill. 37), the petitioner has again

brought up the same contentions decided in the petition

for writ of habeas corpus decided against this petitioner

in the Circuit Court of Winnebago County, Illinois. (There

are some other contentions to be considered later.) As

to the contentions of constitutional violation by the al-

leged failure to appoint counsel and the alleged absence

of a plea of record, those matters were decided in the

—

11

aforementioned petition for writ of habeas corpus and

are now res judicata, which doctrine applies to criminal

cases as well as civil cases. (Sealfon v. United States, 332

U. S. 474, 92 L. Ed. 180, 68 8. Ct. 237; United States v.

Oppenheimer, 242 U. 8. 85, 61 L. Ed. 161, 37 8S. Ct. 68;

United States v. DeAngelo (CCA 3d N. J.), 137 F. 2d 466;

Wells v. United States (CCA 5th 1946), 158 F. 2d 833.)

This doctrine operates to settle matters conclusively which

were determined in the habeas corpus hearing, which find-

ings are incorporated in this brief as Exhibit ‘‘A’’.

A case which is directly in point on this question of

res judicata is Wilson v. United States (CCA 8th 1948),

166 F. 2d 527. The appellant was convicted on a plea of

guilty and sentenced to ten years’ imprisonment. He had

filed three substantially identical motions in the District

Court to vacate the sentence and correct the judgment. A

full hearing was had in the District Court and his first

two motions overrnled. This case arose when appellant

appealed from a third order denying his motion and the

Cireuit Court of Appeals held that the former judgments

denying the motions were res judicata and it would be

presumed that every issue of law involved in it had been

tried and decided. (See 50 C. J. S. Judgments, Sec. 837.)

Also in Wells v. United States, supra, the appellant had

previously made a motion to vacate his sentence which had

been appealed to this Court (Wells v. United States, 318

U. S. 257, 87 L. Ed. 746, 63 S. Ct. 582) and denied, and the

appellant had unsuccessfully prosecuted two habeas corpus

proceedings of which the Court took judicial notice. In

the second habeas corpus proceeding there was a full hear-

ing and the Court made findings of fact against the appel-

lant. The Circuit Court said: ‘‘We see no reason why the

doctrine of res judicata should not apply to this second

attempt to relitigate the same matters.”

The case above cited is very similar in its facts to the

12

petitioner’s case. Here there has been a previous final

determination of constitutional questions involved and

under the doctrine of res judicata the petitioner is pre

cluded from relitigating the same matters by writ of error

to the Supreme Court of Illinois. See also State v. Hensley,

27 Wash. 2d 938, 181 P. 2d 828, where defendant’s con-

tentions relative to vacation of judgment and sentence were

fully considered on a prior appeal from a decision denying

a petition to withdraw a plea of guilty, and the Court held

the defendant could not have the same contentions recon-

sidered on a motion of coram nobis.

There is no question but what the petitioner has had his

day in court. In fact, he has been to the Circuit Court of

Winnebago County, Illinois twice; he has been to the

Supreme Court of Illinois in four cases, and to this Court

on three previous occasions, not including the petition for

a rehearing. Certainly, there must be an end to this

matter, and since petitioner’s contentions were finally de-

termined once, it is res judicata.

As for the contention of the petitioner that the Grand

Jury was improperly assembled, such objection under

Illinois law can only be taken by a challenge to the array

or motion to quash the indictment. (Bruen v. People, 206

Ill. 417; People v. Liber, 357 Ill. 423, People v. McCauley,

256 Ill. 504, People v. Munday, 293 Ill. 191, People v. Green,

329 Ill. 576.) It will be presumed unless the contrary is

shown that the persons summoned by the Sheriff for

Grand Jury duty were duly qualified; and were selected

from the County; and that the Sheriff did his duty accord-

ing to the Statute. (Fletcher v. People, 81 Ill. 116, Bruen

v. People, supra.) Where there is no showing of a chal-

lenge to the array nor a motion to quash the indictment,

and there is no showing that the people constituting the

Grand Jury were not from the County and duly qualified

to act, the indictment cannot be later attacked.

13

As for the contention that the State’s Attorney charged

ne Grand Jury instead of the Circuit Court Judge, that

oes not affect the validity of the indictment unless the

etitioner could show that he was prejudiced thereby.

People v. Jordan, 292 Ill. 514; People v. Gould, 345 Ill.

88.) The petitioner has not shown that he was prejudiced

n any manner in this regard. The petitioner’s allegation

f error that there was more than one officer appointed

n charge of the Grand Jury contrary to the Statute has

o merit whatsoever. (People v. Gould, supra.)

In any case, these matters are strictly an interpretation

f local Illinois law with which this Court has often stated

hey have no interest since there is no constitutional ques-

ion involved.

Conclusion.

It is important that it be kept in mind that this peti-

ion involves a request to review original actions in the

Supreme Court of Illinois. It does not and cannot involve

review of the action of the Circuit Court of Winnebago

Younty, Illinois in denying the petitioner’s application of

. writ of habeas corpus filed in that Court. That case

s finally determined and only comes into this case to show

hat the matters here involved have been litigated once

and settled. Note incidentally, it is the petitioner who has

,dvanced the record of the Circuit Court of Winnebago

County, and he can hardly deny its authenticity.

If it were felt that that action was erroneous, there

were two opportunities to act—once when this Court was

netitioned to clarify its opinion and mandate (Marino v.

Ragen, 333 U. S. 852, 68 S. Ct. 729, 92 L. Ed. 1133), and

a second time when a petition for certiorari was filed and

denied. (Misc. 30, Marino v. Ragen, 93 L. Ed. 862, re-

hearing denied, L. Ed. 1038.) This Court’s opinion in

Marino v. Ragen, 332 U. S. 561, was predicated on a con-

14

fession of error by the Attorney General of the State of

Illinois without any facts having been found and without

the Attorney General being cognizant of the true facts in

the case. As a consequence, it was necessary in obedience

to the mandate of this Court to have a full hearing in the

matter. That hearing in the Circuit Court of Winnebago

County, Illinois, was a minute investigation of the alleged

constitutional errors and found them to be baseless. That

decision stands as a final determination on this matter and

the petitioner does not allege any different facts or any

change in the situation or any reason why this case should

be any different now.

We submit that the petition for writ of certiorari in each

case should be denied.

Rosert R. CanFiep,

State’s Attorney of Winnebago

County, Illinois,

Amicus Curiae,

Date F.. Cone,

Assistant State’s Attorney,

Winnebago County, Illinois,

Joun S. GHENT,

Assistant State’s Attorney,

Winnebago County, Illinois,

Of Counsel.

15

EXHIBIT ‘‘A’’.

Findings and Decision of the Honorable William R. Dusher.

People of the State of Illinois, ex }

rel. Tony Marino,

Petitioner,

Ng

vin No. 54874,.

Joseph E. Ragen, Warden, Illi-

nois State Penitentiary, etc.

The Court: This cause comes on for hearing on the

mandate from the United States Supreme Court filed in

this court on January 26, 1948 wherein it is stated:

‘‘Tt is further ordered that this cause be, and the

same is hereby remanded to the circuit court of Win-

nebago County, of the State of Illinois for appropriate

proceedings, in the light of the confession of error

filed by the Attorney General of the State of Illinois.’’

I have construed that mandate to mean that this court

should have a full and complete hearing of what tran-

spried in the case of the People of the State of Illinois

against Toni Marino, No. 5963 in this court, which I will

hereafter refer to as the Murder case.

Under the law of Illinois, as the court interprets it, this

court has no power to do anything other than remand the

petitioner to the custody of the Warden of the Illinois

State Penitentiary or to discharge him. There is no alter-

native power in the court.

Under Habeas Corpus Act, Chap. 65, Pg. 1901, it states:

‘‘No person shall be discharged under the provi-

sions of this act, if he is in custody either—

By virtue of a final judgment or decree of any com-

16

petent court of civil or criminal jurisdiction, or of any

execution issued upon such judgment or decree, unless

the time during which such party may be legally de-

tained has expired.’’

It doesn’t appear in this case that the time of sentence has

expired. The court therefore finds, under the law of

Illinois that this court has no power to discharge the peti-

tioner.

However, it is the court’s interpretation of the opinion

of the United States Supreme Court that the court should

inquire fully into and determine whether or not the peti-

tioner received a fair trial in the Murder case, or if he was

deprived of any of his constitutional rights. The common

law record, as I understood it, at the time I first went into

this case, included only the record of the clerk. While it

was pending before me, the Supreme Court of Illinois, in

the case of People v. Nierstheimer, 396 Ill. 193, Pg. 197

said that in considering the common law record and what

happened, the court should take into consideration the

trial judge’s docket. Taking into consideration the trial

judge’s docket in the case of the People vs. Toni Marino

the court finds the trial judge made the following entry:

“April 23, 1925.

‘‘Defendant in Court in person. Court explains

fully to said defendant thru interpreters Daniel Tor-

risi & Joe Marino meaning & effect of entry of plea

of guilty & punishment Court can render in a case of

this character. After such explanation, defendant files

written waiver of trial by jury & enters plea of guilty

to charge in the indictment.’’

On certiorari, in the United States Supreme Court, that

court said in part:

‘<Tt does not appear, however, that an attorney was

appointed to represent him. The waiver was not in

fact signed by him, and no plea of guilty was entered

at the trial.’’

——

—_—

17

This conclusion was correct, under the confession of error

and the admission by the attorney general However,

after a full hearing and I don’t think there is any question

about it, the evidence, in the opinion of the court, proves

by a clear preponderance of the evidence, even beyond any

reasonable doubt, in the court’s mind, that Tony Marino

did sign this jury waiver; that he was advised of its con-

tents and in it there is a plea of guilty. That Marino tes-

tified falsely when he said he did not sign this waiver of

jury.

The next point mentioned by the Supreme Court is that

no plea of guilty was entered at the trial. The common

law record, together with the judge’s docket shows that a

plea of guilty was entered and that Marino was advised

of his statutory and constitutional rights. Under the law

of Illinois the record of the trial court imports verity and

cannot be changed or altered by parole testimony.

The only thing that does not appear in the common law

record, taken with the judge’s docket, is that no lawyer

was appointed for the defendant in the Murder case. That,

I think is the principal point involved in this case before

the court. Under the law of Illinois it seems to me that

before a defendant in a criminal case can raise the question

of whether or not he was represented by an attorney and

had the benefit of the advice of counsel he must appear be-

fore the court and ask for the appointment of a lawyer or

state facts to the court that would indicate that he was

indigent and could not employ a lawyer.

Now, what are the facts concerning the question of

whether or not Marino was advised by counsel? Obvi-

ously there isn’t any record of the appointment of

a lawyer for him, but was he advised by counsel?

Shortly after he was arrested, within a matter of one day,

I think, after he was taken into custody his friends re-

tained a lawyer for him. They retained Harry B. North,

18

one of the best and most prominent lawyers in the northern

part of Illinois. Mr. North went to the jail with an inter.

preter, on February 28th and on that day he spent two

hours and a half with the petitioner. The petitioner denied

this—denied he ever saw North. I can’t believe this denial.

I think it is a falsehood. Manalli, the interpreter, said he

was there with North at that particular time and inter-

preted from English to Italian and from Italian back to

English. The court did not permit any disclosure as to

what actually transpired between the two—the attorney

and client or the attorney and client and the interpreter

or anything that was said. Again, on March 2nd, the same

thing occurred. North spent two hours with the inter-

preter Manilla in the county jail and conferred with

Marino. It is the opinion of the court that the disclosure

of the time that was spent with Marino was proper for

North to testify about. The rights of the petitioner were

safeguarded in not permitting any disclosure to be made

by the attorney or interpreter as to what the conversation

was at the time of those conferences. This was entirely

proper and violated no confidences and it wasn’t any

breach of confidence or any violation of ethics on the part

of Mr. North.

Then with respect to the statement made by Marino last

Saturday, that he didn’t shoot Patterson. I think that

statement is a false statement. The evidence concerning

that statement was permitted to be put in by the respond-

ent to test the veracity and credibility of the petitioner. It

was not for the purpose of determining in this case whether

a crime was or was not committed—because I am confining

myself entirely to whether or not a fair trial was had by

Marino in the Murder case, under the mandate of the

United States Supreme Court. The testimony, in my opin-

ion, shows, without any question that North remained

under the retainer that had been paid to him until the day

—7—~™~"

19

that Marino had his hearing on Mitigation and Aggrava-

tion. It is not disputed—the petitioner doesn’t deny it,

that some time before that hearing Marino said he didn’t

want a lawyer, that he wanted to plead guilty and throw

himself upon the mercy of the court and that is just what

he did. In my opinion, he had the benefit of counsel and

advice of counsel. I think it is a fair inference that when

a lawyer of Mr. North’s standing and reputation talked

to Marino, once for two and a half hours, and again for

two hours, a defendant who was charged at that time with

murder (he hadn’t been indicted but he must have been

charged) at least that is what he was held for—a fair

inference would be that Mr. North would inquire as to

why he was held and that that question must have been

discussed. The court isn’t permitted to go into that dis-

cussion. The petitioner didn’t want it gone into. I think

his veracity is broken down on his statement that he didn’t

shoot Patterson, the first time he said it, according to the

evidence and the record, in 23 years. The first time he

was up for parole before the Board he said he did shoot

Patterson—shot him three times. Then in April, 1947, he

told the examining officer of the Division of Correction

that he didn’t remember. With anybody who has been

around a courtroom a while and listened to witnesses’ tes-

timony, when they say ‘‘I don’t remember’’ that isn’t very

convincing to a court or to an examiner of facts. In that

statement I can’t think his veracity held up. Also, under

Respondent’s Exhibit 1 Tony Marino in effect admitted it

in writing to the state’s attorney of this county. In that

letter he said:

‘T have served more than a half of my entire life

for a crime which was not vicious enough to warrant

a life sentence. I was sentenced to life imprisonment

because I had no one in this country who could advise

me what to do with the court’s proceedings, and be-

cause I was a young boy without any criminal knowl-

edge.”’

20

The facts also show that from the second day he was in

the county jail there were numerous Italian persons who

called on him. At the time of his confession there was

Corado, manager of the telephone company, there was a

young man named Greely, or something, Joe Marino and

Manilla and some other Italian; there were four or five

Italians all present. The court is not unmindful thet when

one of their friends get into difficulties, the Italians are

solicitous of his welfare. I am satisfied he was not denied

friends visiting him.

In my opinion, as I stated during the course of the argu-

ment, the question that is involved in this case is whether

or not, under the circumstances of this case, Marino had

the advice of counsel. That is the first question to be deter-

mined as a matter of fact. In my opinion, he did have the

benefit of the advice of counsel. I don’t think any other

fair conclusion could be reached, from what transpired,

with his friends putting up their money for the purpose of

hiring a lawyer and the conferences that were had. He

denies that he talked to North but I don’t think there is

any question but what he did. I am not just exactly clear

on it but at least a statement was made by Marino—and

my recollection is it was in open court—that he didn’t

want a lawyer, that he wanted to throw himself on the

mercy of the court. There isn’t any question in my mind

but that Judge Reynolds was very zealous to protect the

rights of this defendant. They had a hearing on Mitiga-

tion and Aggravation and 66 pages of testimony were

taken before the court. Further than that, there was a

written confession made by the defendant, with four or

five or six Italian people standing around at the time

it was made.

I feel he was fully advised at the time he made the

confession. In my opinion he knew absolutely all of his

rights and that he did just exactly what he said he wanted

~7~_”™

21

to do—he wanted to plead guilty and put himself on the

mercy of the court and I think he understood and compre-

hended just exactly what he did.

It does not seem to me that the exact question before

this court has been passed on by the United States Supreme

Court: Every trial judge knows that when a defendant

appears before the court with his lawyer, that it is pre-

sumed by the court that his lawyer has explained to him

all of his rights under the law and under the constitution.

The actual appearance in court with a lawyer is in large

measure a formality after the lawyer has advised the

defendant concerning his rights. It seems to me that the

vital thing is whether or not a defendant has had the

advice of counsel previous to a plea of guilty. It does

not seem to me that it is vital to the rights of the defend-

ant that his lawyer actually stand with him in court before

the judge at the time a plea of guilty is entered or at the

time of sentence on a plea of guilty. So in this case, there

is no question in my mind but what Marino had been fully

advised of his rights, under the law and under the consti-

tution, by Mr. North and that when he stood before the

trial judge in the Murder case he had been fully advised

and had the benefit of the advice of counsel at the time he

plead guilty.

I am not unmindful, in a case of this kind there is a lot

of maudlin sentimentalism that creeps into it but on the

other hand, society must be protected. If a man is put in

the penitentiary, the State of Illinois has provided, through

its legislature, the manner in which he shall be discharged.

They have created the Division of Correction, commonly

known as the Parole Board and it is to that Board a pris-

oner must address himself, in the manner prescribed, if he

complains his sentence is too long.

I am of the opinion that all of the constitutional rights

of the defendant were accorded him.

22

It is the order of the court that the writ of habeas corpug ~

heretofore issued be and the same is hereby quashed and

the Petitioner remanded to the custody of the Respondent, ©

Joseph E. Ragen, as Warden of Illinois State Penitentiary ~

at Joliet, Illinois.

I, William R. Dusher, Judge of the Seventeenth Judicial

Circuit of the State of Illinois do hereby certify that I

was the presiding Judge in the above entitled cause and

that the above and foregoing is a full, true and complete

report of the proceedings in said trial, including the tes-

timony, rulings of the Trial Judge and all matters upon

which rulings were made and other proceedings as shown

therein.

Given under my hand and seal, at Rockford, Illinois,

this 17th day of May, A. D. 1948.

Wituum R. DusHer,

(SEAL) Judge.

Filed May 17, 1948. Paul N. Wilson, Clerk.