430 F.2d 978 (6th Cir. 1970), 19912, Woodards v. Cardwell

Docket Nº:19912.
Citation:430 F.2d 978
Party Name:John Elmer WOODARDS, Petitioner-Appellee, v. H. J. CARDWELL, Warden, Ohio Penitentiary, Respondent-Appellant.
Case Date:August 17, 1970
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 978

430 F.2d 978 (6th Cir. 1970)

John Elmer WOODARDS, Petitioner-Appellee,

v.

H. J. CARDWELL, Warden, Ohio Penitentiary, Respondent-Appellant.

No. 19912.

United States Court of Appeals, Sixth Circuit.

Aug. 17, 1970

Page 979

Leo J. Conway, Columbus, Ohio (Paul W. Brown, Atty. Gen., Columbus, Ohio, on the brief), for appellant.

Niki Z. Schwartz, Cleveland, Ohio (Bernard A. Berkman, Cleveland, Ohio, on the brief), for appellee.

Before WEICK, CELEBREZZE and BROOKS, Circuit Judges.

BROOKS, Circuit Judge.

This is an appeal by the respondent-appellant, H. J. Cardwell, Warden, Ohio Penitentiary, who has custody of John Elmer Woodards, petitioner-appellee, a convicted murderer, who, following an evidentiary hearing in the District Court, has been granted a writ of habeas corpus.

In 1963 petitioner was convicted of first degree murder of a woman 83 years of age. The jury verdict was without a recommendation of mercy and under Ohio law, Ohio Revised Code § 2901.01, a mandatory death penalty was imposed. The conviction was affirmed, State v. Woodards, 6 Ohio St.2d 14, 215 N.E.2d 568 (1966), cert. denied, 385 U.S. 930, 87 S.Ct. 289, 17 L.Ed.2d 212 (1966).

At the trial two prospective jurors were excused for cause when they expressed some objection to the imposition of the death penalty. 1 This was error.

Page 980

The rule is clearly set forth in Witherspoon v. Illinois, 391 U.S. 510, 521-523, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) as follows:

'Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.'

The District Court correctly interpreted the rule in holding that the death sentence imposed by the improperly selected trial jury could not be executed. Witherspoon, however, does not invalidate the guilty verdict. It holds only that the death sentence imposed by an improperly selected jury cannot be executed. Witherspoon v. Illinois, supra, p. 523, n. 21, 88 S.Ct. 1770. The respondent argues that we cannot reach the Witherspoon issue raised by the petitioner as the petitioner has not exhausted state remedies as required by Title 28 U.S.C. § 2254(b)(c). Petitioner did appeal his conviction to the Ohio Supreme Court but the Witherspoon issue was not raised. State v. Woodards, supra. However, it is provided by Title 28 U.S.C. § 2254(b) that state remedies need not be exhausted where 'there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.' This Court has on several occasions considered this point with regard to Ohio appellate procedures. See, Allen v. Perini, 424 F.2d 134 (6th Cir. 1970); Coley v. Alvis, 381 F.2d 870 (6th Cir. 1967). In light of the Ohio Supreme Court's decision in State v. Duling, 21 Ohio St.2d 13, 254 N.E.2d 670 (1970), we hold it would be futile for petitioner Woodards to have proceeded through the State appellate process again.

The other crucial contention advanced by the petitioner is that it was error of constitutional proportions for the trial judge to compel him to be handcuffed and shackled throughout his trial. The District Court, following a full evidentiary hearing, held that the shackling was a violation of petitioner's constitutional rights under the due process clause of the Fourteenth Amendment and concluded that he was denied a fair trial. We agree.

It is undisputed that petitioner was shackled, by handcuffs around his wrists attached to a restraining belt around his waist, from the beginning to the end of his...

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