Chessman v. Dickson

• Decision Date: 08 February 1960
• Docket Number: No. 16766.,16766.
• Parties: Caryl CHESSMAN, Petitioner, v. Fred R. DICKSON, Warden, Vice Harley O. Teets, Warden, California State Prison, San Quentin, California, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

275 F.2d 604 (1960)

Caryl CHESSMAN, Petitioner, v. Fred R. DICKSON, Warden, Vice Harley O. Teets, Warden, California State Prison, San Quentin, California, Respondent.

No. 16766.

United States Court of Appeals Ninth Circuit.

February 8, 1960.

George T. Davis, San Francisco, Cal., Rosalie S. Asher, Sacramento, Cal., A. L. Wirin, Los Angeles, Cal., Caryl Chessman, San Quentin, Cal. (in pro. per.) for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., State of California, for appellee.

CHAMBERS, Chief Judge.

Chessman is under two death sentences and execution by the State of California will be had on February 19, 1960, unless someone stays it.

Primarily the case is the state's business, but when asked by a habeas corpus petition the federal statutes and United States Supreme Court require the United States district and circuit judges to look into such cases, primarily to see that due process has been had.

On or about June 25, 1948, Chessman was convicted by a jury of 17 counts of 18 counts in two informations. On each of two counts the jury, as permitted by the California statutes, imposed the penalty of death.

Three of the counts (death penalty for one) concern events of a revolting attack he made on January 19, 1948, at or near Los Angeles on a young woman named Regina (last name omitted) and three (also death penalty for one) concern an equally revolting attack made on January 22, 1948, on a young woman named Mary (last name omitted). The death sentences were possible under California statutes because of the element in the case of each girl of kidnapping for the purpose of robbery. A sexual perversion orgy with Chessman was forced on both women at the point of a gun.

But on habeas corpus Chessman says we have no right to know this because he claims there never has been an adequate transcript of the evidence at the trial and thus, he says, we cannot use the usual rule that on appeal after conviction the testimony is taken in the most favorable light in favor of the state (here the People of California).

Due to the exigencies of time the full story of Chessman's many legal excursions cannot be here fully reported. Therefore, for completeness of facts this opinion must assume a familiarity with the following three cases: People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001; Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253, and People v. Chessman, 52 Cal.2d 467, 341 P.2d 679.

It should be recited that one reporter Perry took shorthand notes on the original state trial at Los Angeles before the jury. He was about a fourth or a third through transcribing when he died. Then another shorthand reporter Fraser was employed to finish the transcription. The prosecutor and the trial judge, Charles W. Fricke, played some role in the settlement of the proposed transcript and the record was submitted to Chessman in his prison cell in San Quentin, California. He made certain suggestions for correction, some of which were adopted and some rejected. The transcript was then settled by Judge Fricke. On the automatic appeal required by California, the California Supreme Court in People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001, cited supra, held the procedure and the result were adequate and affirmed the conviction. Eventually the United States Supreme Court in Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253, cited supra, held that the transcript so settled was improper: that under the circumstances Chessman was entitled to a hearing on the transcript. Thereupon, the California Supreme Court vacated its affirmance and a hearing ran intermittently over a period of six weeks with Chessman present before Judge Walter R. Evans of the superior court at Los Angeles who presided. Thus, a new transcript was completed for the purposes of appeal. Generally, it may be said that Judge Evans leaned over backwards in granting Chessman's requests for changes in the transcript. (We also have a third transcript, being the transcript of the hearing to settle the transcript.) The resettled transcript went forward to the California Supreme Court and it again affirmed the conviction, People v. Chessman, 52 Cal.2d 467, 341 P.2d 679, cited supra.

The great hole in Chessman's position is that under the first (Fricke) transcript and the second (Evans) transcript, and under such a transcript as we might have if we accepted all of the rest of his specific trifling objections to this and that in the record, he cannot get away, cannot shake the simple, vulgar, violent story of what he did to Regina and Mary.

At the hearing on February 5, counsel for Chessman were asked to state the story of the events concerning the two girls according to the last (Evans) transcript. This they declined to do. Thereupon, it was necessary to ask counsel for the warden to do it. Counsel for the warden stated it in all of its unlovely details pursuant to my insistence. That statement is appended hereto for the permanent record. Counsel's assertion that the story would be the same under either the Evans or Fricke transcripts was not questioned. And after extensive examination of the transcript of the resettlement proceedings, I am convinced the story would always be the same — unless Chessman can void the whole transcript as resettled. To this, counsel for Chessman virtually agreed.

At the Evans resettlement hearing there was testimony that Fraser, the transcriber, who finished up for the dead Perry, was incompetent mentally and technically. Thus Judge Evans could have voided all effort to produce a transcript, but on an issue of fact he concluded that a fair transcript could be produced. And one eventuated.

Recently on a supplemental petition for habeas corpus at a hearing thereon before the Chief Judge of the United States District Court for the Northern District of California in San Francisco, Chessman made a broadside attack on the ultimate Evans transcript. And even there he attempted to impeach with further evidence the character and work of Fraser. Such evidence was rejected together with all other legal contentions.

Chessman seeks to appeal to our Court from the decision denying him the great writ. Before he can do so, he must get a certificate of probable cause for appeal. If granted, it would necessarily follow that a stay of his impending execution should also be entered. His applications for such orders were before the aforementioned chief judge of the district court who rejected them. Now such applications are before me.

If there is any substance at all to Chessman's contentions in his last petition before the district court, I must grant the certificate. The test is not whether I might ultimately agree with the contentions.

While I shall list most of the contentions and make some brief observations, at the threshold, I now state, in my view, the petitioner has just run out of points. Petitioner is represented by able counsel and one must give them a grade of "A" for ingenuity, but such ingenuity just doesn't put water in the bottom of the well where there is none.

Seriatim below are listed the purported issues raised by Chessman, together with my answers:

1. That the chief judge of the district court misconstrued the Supreme Court's mandate. See 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253. Answer: The district court properly construed the mandate. It was not required to do anything more than see that California gave Chessman a hearing on the transcript. It did.

2. That at the district court hearing Chessman was not permitted to produce evidence to attack the transcript and to show the prejudice of Justice Schauer of the Supreme Court of California. Answer: Chessman had a fair hearing before Judge Evans on the transcript. Judge Evans suffered with patience and interminably all sorts of irrelevancies and worse, at Chessman's hands. As to Justice Schauer, I do not believe he has to be tried for his alleged prejudices.

3. That the law under which the death sentences were imposed was repealed before the California judgment was final. Answer: This has no merit and is adequately answered in the opinion in 341 P.2d 679.

4. That the last proceedings in district court were commenced before the official state records were available. Answer: If the records were needed, they were available before the hearing was completed.

5. That at the last proceedings in district court Chessman was not permitted to represent himself and also have counsel represent him. Answer: He was permitted to take his choice. He chose to represent himself with counsel at his side for advice. There is nothing wrong with this.

6. That at the last district court hearing he was not permitted to call Arlo Smith, deputy attorney general, as a witness. Answer: There was no reason to call Mr. Smith as a witness.

7. That at the last hearing he was not permitted to call other witnesses and subpoenas were quashed. Answer: There just was no triable issue of fact.

8. That at the last hearing the chief district judge refused to examine Chessman's cell. Answer: There was no reason to examine the cell.

9. That at the last hearing the chief district judge refused to answer certain questions asked by Chessman. Answer: The questions required no answer.

10. That at the last hearing the chief district judge refused to appoint a shorthand expert to examine the Evans transcript. Answer: The transcript was not being retried and there was no right to a retrial.

11. That at the last hearing the district judge erred in failing to release Chessman because he has been confined in a death cell for eleven and one-half years, thus he has been subjected to cruel and unusual punishment. Answer: It may show a basic weakness in our government system that a case like this takes so long, but I do not see how we can offer life (under a death sentence) as a prize for one who can stall the processes for a given number of years, especially when in the end it appears...