510 F.2d 634 (7th Cir. 1975), 74--1071, United States ex rel. Williams v. Twomey

Docket Nº:74--1071.
Citation:510 F.2d 634
Party Name:UNITED STATES of America ex rel. Countee WILLIAMS, Petitioner-Appellant, v. John J. TWOMEY, Warden, Respondent-Appellee.
Case Date:January 15, 1975
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 634

510 F.2d 634 (7th Cir. 1975)

UNITED STATES of America ex rel. Countee WILLIAMS,



John J. TWOMEY, Warden, Respondent-Appellee.

No. 74--1071.

United States Court of Appeals, Seventh Circuit

January 15, 1975

Argued Nov. 19, 1974.

Rehearing and Rehearing En Banc

Denied March 24, 1975.

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Charles J. Averbook, Chicago, Ill., for petitioner-appellant.

William J. Scott, Atty. Gen., Chicago, Ill., Nolan Lipsky, Asst. Atty. Gen., Springfield, Ill., for respondent-appellee.

Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and WYZANSKI, Senior District Judge. [*]

WYZANSKI, Senior District Judge.

This is an appeal from the District Court's denial after full hearing and findings, of release on a petition for habeas corpus attacking a sentence of imprisonment for ten to twenty years imposed by the Illinois Circuit Court for Cook County following a jury verdict finding petitioner guilty of the crime of burglary of a television set. The principal issue raised here and in the District Court is petitioner's claim that he, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution, was denied the effective assistance of counsel.

In stating the facts, we are mindful of the strictness with which Rule 52 of the Federal Rules of Civil Procedure enjoins us to respect the findings of fact of the District Court unless they are clearly erroneous. Our reading of those findings reveals the following situation.

April 12, 1968, Countee Williams, petitioner, Alonzo Brock, and Juan Costillo were arrested on a charge of burglary of a television set from a furniture store. The arrests were made during the rioting and looting that followed the assassination of Dr. Martin Luther King, Jr., and in the atmosphere, noticed by the District Court, 'of Mayor Daley's order regarding looters and the widespread public displeasure over the destruction following the heinous assassination of Dr. King.'

The state court before which petitioner was immediately brought set bail at $5,000. Not meeting the bail, he was confined in Cook County Jail until the time of the trial.

July 24, 1968, petitioner having meanwhile been indicted for the aforesaid burglary, an arrest warrant was issued against petitioner, and his bail was temporarily increased to $10,000. Due to confusion at the Cook County Jail, the authorities did not locate him there, and his case was removed from the trial call of the Circuit Court. July 31, petitioner was arraigned, his case was assigned to Judge Wilson for trial, and the judge appointed Paul Bradley, Esq., a lawyer on the staff of the Public Defender who handled cases before Judge Wilson, to represent petitioner. On the same day, Mr. Bradley, although he had not then had an opportunity to discuss the case with petitioner, filed pretrial motions. The judge held the case on the trial call for Friday, August 2, 1968.

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On July 31 and continuing through August 1, Mr. Bradley was engaged in the trial of a murder charge against another defendant before Judge Wilson, and seemingly had no conference with petitioner or concern with his case.

August 2, 1968, Judge Wilson called petitioner's case for trial. That was 112 days from the date he was taken into custody. Illinois Rev.Stat. ch. 38, § 103--5(a), (d) requires that a person charged with an offense and held in custody must be tried within 120 days from the date he was taken into custody or he must be discharged therefrom. If a defendant requests a continuance, the 120-day period commences to run again.

When called for trial, Mr. Bradley informed the court that, having been engaged in the murder trial of another defendant before Judge Wilson, counsel had only 'talked to the defendant (petitioner) for maybe ten minutes in the bullpen. And at this time I am not either ready to answer ready or to make a determination of whether there should be a continuance, I would like some time to talk to defendant.' When the prosecutor stated (on what basis we are left to conjecture) that 'the defendant has indicated he wishes to proceed,' Mr. Bradley added, 'The defendant has indicated that but, as you know, I have to make certain determinations as to whether it is in our best interests, and to advise my client.' Then Judge Wilson stated, 'We will pass the case.' Thereupon there was a recess.

In what the District Judge found must have been the earlier ten minute conference in the bullpen, the petitioner had told Mr. Bradley 'that he had been with others and had just left a tavern prior to his arrest; that he was employed at the time of his arrest; and that he had a criminal record.' The District Judge also found that, it seems, at the hearing before him, the petitioner testified that 'he told Bradley, (it may have been during the recess before the state trial began, but the District Judge does not clarify the point,) about four individuals in whose company he was at the time of the alleged burglary. Petitioner could not give the last names or addresses of these individuals, but testified they were from the neighborhood.'

The District Judge also found that 'Prior to one of the discussions between Mr. Bradley and petitioner on August 2, Mr. Bradley and (the prosecutor) Mr. Friedman discussed (1) the possibility of a guilty plea in return for recommendations on sentencing and (2) the situation with respect to the 120-day term. Mr. Friedman indicated that the state did not know if it could find its witnesses; Mr. Bradley stated that he would convey the plea-sentencing offer to his client and then went to meet with the petitioner.'

'In one of the discussions on August 2, (Mr.) Bradley told petitioner he was not prepared for trial and that a continuance would be needed. Petitioner was unhappy over the prospect of a continuance and he and Bradley discussed the significance of their making a request for one.' (We are not informed as to how long a continuance would have been likely.)

Following one of the discussions between petitioner and Mr. Bradley, the latter indicated that 'petitioner decided to gamble on the fact that the state would not be able to present its witnesses for trial.'

When the trial was reconvened, on this same August 2, Mr. Bradley did not request a continuance, and 'indicated he wants to go to trial today.' On inquiry from the judge, the petitioner confirmed this. If the petitioner had requested a continuance, the judge, under Illinois law, could have postponed the case for 120 days. (But there is no indication how long the delay would actually have been.)

As an ultimate finding of fact, the District Court concluded that the 'petitioner made the decision to go forward with the trial on August 2. . . . When making the decision to go forward with the trial, petitioner was motivated in part by the desire not to spend additional time in Cook County jail while

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awaiting trial, but the principal reason behind the choice was the possibility that the state would, on such short notice, be unable to secure sufficient witnesses to prove its case.'

'Before the trial commenced on August 2, (the prosecutor) Mr. Friedman gave petitioner's attorney the names of the State's three witnesses.' (We are not clear whether this finding is repugnant to the one last quoted. A possible reconciliation between the findings is that the prosecutor withheld the fact that his witnesses were available until the defendant stated his readiness for trial, and this withholding occurred because Mr. Bradley did not again ask about availability of the state's witnesses. We are not unmindful that a reason why Mr. Bradley may not have made a last-minute inquiry is that, as we have already noted, in earlier discussions on the same day, Mr. Friedman, according to an already-quoted finding of the District Court, 'indicated that the state did not know if it could find its witnesses,' and possibly Mr. Bradley regarded that as a continuing representation by the prosecutor which the prosecutor was under a professional duty to amend if he had become aware of a change of circumstances.)

When the case began on that Friday, August 2, Mr. Bradley indicated that he couldn't be present the next week, and that there was present in court another lawyer from the Public Defender's office, a Mr. Cohan. Apparently, Judge Wilson authorized Mr. Cohan to act as a substitute, and appointed him as assigned counsel or co-counsel for petitioner. There is no indication as to whether Judge Wilson knew anything of Mr. Cohan except that he was from the office of the Public Defender. But in his findings, the United States District Judge states that Mr. Cohan 'had been engaged previously in representing defendants at preliminary hearings,' but this was 'Mr. Cohan's first felony trial.' We are not informed as to whether before the trial began, Mr. Cohan had participated in any conference with petitioner. We, however, have been told at our bar that during at least part of the trial proceedings on Friday, August 2, Mr. Bradley was in the state courtroom, although we do not know in what capacity.

The state offered apparently all its case in chief on Friday. The court recessed over Saturday and Sunday. We are not told what Mr. Cohan did during the weekend recess. On Monday, August 5, Mr. Cohan called as his only witness petitioner. Before the District Judge, petitioner testified, apparently accurately in the District Judge's opinion, that before taking the stand he had not been warned that if he took the stand his prior criminal record would be admissible. In any event, after petitioner did testify in the state court, the prosecutor introduced petitioner's conviction record, and also called one of the arresting officers as a...

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