Baker v. Hudspeth

Decision Date02 September 1942
Docket NumberNo. 2475.,2475.
PartiesBAKER v. HUDSPETH, Warden.
CourtU.S. Court of Appeals — Tenth Circuit

A. G. Bush, of Davenport, Ia. (Curtis Bush, of Davenport, Ia., on the brief), for appellant.

Summerfield S. Alexander, U. S. Atty., of Kingman, Kan., and Homer Davis, Asst. U. S. Atty., of Topeka, Kan., for appellee.

Before PHILLIPS, MURRAH, and WILLIAMS, Circuit Judges.

MURRAH, Circuit Judge.

The petitioner appeals from an order of the District Court denying a writ of habeas corpus, by which he sought release from custody of the respondent, alleging that he had been deprived of his constitutional right to a fair and impartial trial on an indictment charging violations of 18 U.S.C.A. § 338 (scheme to use the mails to defraud). The indictment containing seven counts was returned against the petitioner in the Eastern District of Arkansas. He was tried, convicted on each of the counts, and sentenced to a term of four years. On appeal the conviction was affirmed by the 8th Circuit Court of Appeals. Baker v. United States, 8 Cir., 115 F.2d 533. Petition for rehearing was denied and the Supreme Court refused to take the case on certiorari. 312 U.S. 692, 61 S.Ct. 711, 85 L.Ed. 1128. He was committed to the custody of the respondent on March 22, 1941.

Petitioner alleges that subsequent to the trial, conviction, affirmance and commitment, he discovered the facts which form the basis for the writ, and which denied him his constitutional right to a fair and impartial trial because: (1) illegal association of jurors with United States Marshal and his Deputies, and prejudicial instructions to the jurors by the United States Marshal; (2) use of intoxicating liquors by the jurors during the course of the trial; (3) he was denied an impartial jury because one of the jurors was disqualified for cause, which fact was unknown to him until after his commitment, and (4) he was denied the right to introduce competent evidence in his defense.

On the return of the writ, the petitioner appeared in person, and by counsel; testimony was offered in his behalf and depositions in behalf of both parties (primarily consisting of members of the trial jury, the Marshal and his Deputies) were introduced in evidence, from which the following facts appear without material dispute. The trial of the case consumed fifteen days during which time the jurors were not permitted to separate, but were furnished accommodations at a local hotel under the constant supervision of sworn bailiffs. At the beginning of the trial, counsel for the petitioner requested the Marshal to take charge of the jury because he wanted it "handled carefully." Whereupon, the Marshal explained to the jury the restrictions to be placed upon them during the trial, telling them it was an important and expensive trial for both parties, and that he did not want a mistrial or criticism of the Marshal's office in the supervision of the jury. The jury interpreted this talk by the Marshal as an explanation for the restrictions and a plea of co-operation on its behalf. The jurors were not permitted to read newspapers, or receive mail during the entire trial which had not been censored for information concerning the trial of the case. They were not allowed to take, or make, telephone calls, or to see members of their families, except in the presence of the bailiff. They were permitted the use of the Barber Shop and to make necessary shopping and business trips, but at all times under the supervision and in the presence of the bailiffs, the Marshal or his Deputies. By permission of the court and by agreement of the parties, they were permitted to go to a basketball game, to church, and on an outing to the zoo. On these trips they were transported in automobiles driven by the bailiff and the Deputy Marshals. On two occasions Deputy Marshals, including two lady Deputies, dined with the jurors in a private dining room used exclusively by the jury, one of the occasions being a birthday dinner for one of the jurors at which small favors were given and humorous talks made. The jurors were also permitted to play cards and dominoes, and on several occasions the jurors were permitted to purchase intoxicating liquors and to use it in their respective rooms, but at no time was any juror intoxicated or guilty of any unbecoming conduct. In fact, there is no evidence from which it can be inferred that the case was discussed among the jurors or with anyone else, including the Marshal or his Deputies, and it is affirmatively shown that no word or act was designed or intended to influence the jury in the consideration of the case.

The trial court, after complete hearing, denied the petition for the writ, finding that the petitioner had a full, fair and impartial trial, and that the jury was not intimidated, coerced, or influenced in any way in the consideration of its verdict.

There is no right more sacred to our institutions of government than the right to a public trial by a fair and impartial jury; no wrong more grievous than its denial, and no greater duty is enjoined upon the courts than to preserve that right untarnished and undefiled. The denial of a fair and impartial trial, as guaranteed by the 6th Amendment to the Constitution, is also a denial of due process, demanded by the 5th and 14th Amendments, and the failure to strictly observe these constitutional safeguards renders a trial and conviction for a criminal offense illegal and void and redress therefor is within the ambit of habeas corpus. Ex parte Hans Nielsen, Petitioner, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; In re Bonner, Petitioner, 151 U.S. 242, 259, 14 S.Ct. 323, 38 L.Ed. 149; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L. Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455, and Huntley v. Schilder, 10 Cir., 125 F.2d 250. Cf. Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406, and Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. ___. This is especially true where, as here, it is alleged that facts relied upon to establish the denial of a fair and impartial trial were discovered after opportunity for presentation to the appropriate trial or appellate court had passed. But, when as here, one charged with an offense against laws of the United States by a valid indictment, is tried in a court of competent jurisdiction, represented by counsel, before a jury of twelve men, under the superintendence of a judge of that court, which results in the conviction, affirmance and a denial of certiorari, it will be presumed in the absence of plain and cogent evidence to the contrary that the petitioner was accorded a fair and impartial trial as guaranteed by the Constitution, and that all rules of due process have been observed.

A "fair and impartial trial" contemplates a trial before a jury of twelve impartial and unbiased men, neither more nor less, in the presence and under the superintendence of a judge having the power to instruct them as to the law and advise them in respect to the facts, and to have his guilt established by a unanimous verdict of that jury. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263. "Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests, and procedure is not chained to any ancient and artificial formula." United States v. Wood, 299 U. S. 123, 145, 57 S.Ct. 177, 185, 81 L.Ed. 78. But, deeply embedded in the right to a fair and impartial trial is the requirement that the jury of twelve men, chosen to sit in judgment, shall have no fixed opinion...

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