175 F.2d 250 (3rd Cir. 1949), 9471, Johnson v. Dye

Docket Nº:9471.
Citation:175 F.2d 250
Party Name:JOHNSON v. DYE, Warden.
Case Date:May 17, 1949
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 250

175 F.2d 250 (3rd Cir. 1949)

JOHNSON

v.

DYE, Warden.

No. 9471.

United States Court of Appeals, Third Circuit.

May 17, 1949

Argued March 18, 1948.

Reargued March 21, 1949.

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Hymen Schlesinger, Pittsburgh, Pa., for appellant.

Schlesinger & Schlesinger and Samuel J. Goldstein, Pittsburgh, Pa., on the brief, for American Civil Liberties Union, amicus cruiae.

Craig T. Stockdale and Leonard H. Levenson, Assistant District Attorneys, Pittsburgh, Pa. (William S. Rahauser, District Attorney, Leo J. Kelly, Jr., and Louis L. Kaufman, Assistant District Attorneys, Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and MARIS, Goodrich, McLAUGHLIN, O'CONNELL, and KALODNER, Circuit Judges.

BIGGS, Chief Judge.

The Facts.

The petitioner, Leon Johnson, is in the custody of the Commonwealth of Pennsylvania and is presently confined in the Allegheny County Jail, of which the respondent, Charles L. Dye, is the Warden. Johnson was indicted in the Cobb County Superior Court of the State of Georgia for the murder of one Sarah Frances Thompson on December 6, 1942. He was tried by a jury which found him guilty of murder with a recommendation of mercy on January 25, 1943. Under the law of Georgia, Georgia Code Annotated, 1935, Title 26, § 1005, the recommendation of the jury fixed the penalty at life imprisonment. The court thereupon sentenced Johnson to hard labor for life. 1 In June, 1943, the petitioner escaped from a Georgia chain gang and eventually came to Allegheny County, Pennsylvania. Governor Arnall of Georgia dispatched a requisition for extradition to Governor James of Pennsylvania

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who issued an executive warrant under which Johnson was apprehended. We assume that the application for extradition was made pursuant to the Uniform Criminal Extradition Act, Laws of Pennsylvania 1941, July 8, P.L. 288, 19 P.S.Pa. § 191.1. See also the so-called 'Interstate Extradition Act, ' R.S. § 5278-7279, 18 U.S.C.A. § 662-663. So far as appears Governor James did not call on the Attorney General or any prosecuting officer of Pennsylvania as he was authorized to do under the Act to investigate the demand made by the State of Georgia. See Laws of Pennsylvania 1941, P.L. 288, 19 P.S.Pa. 191.4. Johnson petitioned the Court of Common Pleas of Allegheny County for a writ of habeas corpus at its No. 3679, April Term, 1946. There is no copy of Johnson's petition to that Court or the proceedings therein in the record. The Court of Common Pleas apparently 2 refused to free Johnson and discharged the writ. The Court of Common Pleas was under the impression that Johnson had pleaded guilty to the indictment in Georgia. 3 The decision was reviewed by the Superior Court of Pennsylvania which affirmed the judgment of the court below. 159 Pa.Super. 542, 49 A.2d 195. No review seems to have been sought by Johnson in the Supreme Court of Pennsylvania or in the Supreme Court of the United States. On November 14, 1946 Johnson petitioned the court below for a writ of habeas corpus. After the issuance of a rule to show cause on the petition and upon answers 4 filed and after a full hearing the court below filed an opinion, 71 F.Supp. 262, and discharged the writ. Johnson appealed to this court.

We must state at the outset that it is difficult to dispose of the question of law raised by the instant appeal on the record now before us. 5 It appears, however, from Johnson's petition in the court below that the grounds asserted by him for the issuance of the writ were three-fold. He alleged (1) that his constitutional rights had been violated at his trial for murder in Georgia in that 'several witnesses' who testified against him were compelled to do so by 'certain police authorities of Cobb County, Georgia'; (2) that following his conviction he was 'committed to a chain gang * * * and was the victim of cruel, barbaric and inhuman treatment at the hands of his jailors to the extent that his life and health were in grave jeopardy'; and (3) that ' * * * in the event he is returned to the State of Georgia to complete his unfinished sentence his life will be endangered and he fears that if he is returned there is danger that he will meet his death by mob violence and be so brutalized or tortured by his jailors that he will succumb.' On March 14, 1947 Johnson amended his petition by reasserting ground (1) supra in slightly different terms and adding that the testimony of the 'coerced and intimidated witnesses was material, resulted in his conviction and in truth and fact was wholly false and perjured, as the prosecuting authorities well

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knew.' In the view that we take of this case it is unnecessary to pass upon ground (3), supra.

In the court below the petitioner supported the allegations of ground (1) by his own testimony and those of ground (2) by his own testimony and by that of other witnesses, all of whom, save one, were escaped convicts from Georgia who happened to be lodged in the Allegheny County jail. The remaining witness was a former officer in the Army of the United States who had spent a portion of his service in Georgia and who was then confined in the Allegheny County jail having previously escaped from detention in Pittsburgh following his arrest for an alleged felonious assault. The testimony of these witnesses as well as that of the petitioner established that it was the custom of the Georgia authorities to treat chain gang prisoners with persistent and deliberate brutality at or about the time the petitioner was suffering punishment and for some years thereafter, certainly as late as May in the year 1946. There was also evidence which showed that Negro prisoners were treated with a greater degree of brutality than white prisoners though it is difficult to make fine distinctions as to degrees of brutality. A copy of the magazine 'Life', issue of November 1, 1943, in particular an article entitled 'Georgia Prisons, ' with a subtitle 'State Abolishes Old Abuses, ' pp. 93-99, and a copy of the magazine 'Time', issue of September 13, 1943, in particular an article entitled 'Prisons' with the subtitle 'Georgia's Middle Ages, ' pp. 23-24, were introduced in evidence. Certain other newspaper articles were introduced also but these with one exception, 'PM's Picture News, Magazine Section, ' November 2, 1947, which reports in full the Report of the President's Committee on Civil Rights, are not in the record. 6 Several of the petitioner's witnesses in support of the petition for habeas corpus testified that the conditions described by the articles in 'Life' and 'Time' correctly represented certain conditions but the witnesses stated in substance that the articles did not go far enough. Irrespective of whether or not articles in magazines of national circulation are admissible as evidence, the contents of the articles referred to were employed by some of the witnesses as a basis of comparison for conditions in Georgia camps personally known to them. Because of this we may consider the contents of the articles as did the court below. Counsel for the respondent urged in the court below that the article in 'Life' proved that the abuses of the Georgia prison system had been obliterated by the Georgia Act of 1943, Special Sess., page 5; but this assertion, as we have stated, was contradicted in major part by certain of the petitioner's witnesses. No testimony was offered on behalf of the State of Georgia or by the respondent.

The Law.

As to the Alleged Coercion and Intimidation of a Witness or Witnesses.

The court below in its opinion reviewed the proceedings for habeas corpus had on behalf of the petitioner in the Pennsylvania State Courts and, with a reference to the limited jurisdiction conferred upon the justices and judges of the United States to enlarge a prisoner by writ of habeas corpus under Sections 451, 452 and 453 of Title 28 U.S.C.A. (now superseded by Sections 2241, 2242 of Revised Title 28 U.S.C.A.), and to the cases of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; and Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61, concluded that if the facts as alleged in the petition were shown to be true, Johnson 'would be entitled to the remedy set forth in Mooney v. Holohan' (71 F.Supp. 262, 265). The learned trial judge stated, however, 'There is no evidence in his case that witnesses, who testified at his trial in the State Court in Georgia, were compelled to do so; that these is no evidence that they gave perjured testimony, nor is there any evidence that the State of Georgia or its officers or agents, knew that perjured testimony was used against the relator.' This statement of the trial court was erroneous. There was Johnson's own testimony to support his contentions in regard to the alleged perjured, coerced testimony of a

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witness at his trial for murder and to the knowledge of the State of Georgia through its officers in this regard. The court below may have found Johnson's testimony incredible but the learned trial judge did not say so. But in the view which we take it is unnecessary to resolve the question whether a witness was intimidated at Johnson's trial in Cobb County, Georgia.

As to the Application of the Eighth Amendment of the Constitution of the United States by Implementation Under the Fourteenth Amendment.

As to the second ground raised by Johnson the court below stated, 'There is evidence that Johnson received cruel treatment after he had been convicted of murder and while he was serving his sentence therefor. However, such treatment would not entitle him to his liberty as it does not constitute a custody of relator in violation of the Constitution or laws of the United States. 28 U.S.C.A. §...

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