Wright v. Johnston, 28026.

• Citation: 77 F. Supp. 687
• Decision Date: 23 April 1948
• Docket Number: No. 28026.,28026.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Parties: WRIGHT v. JOHNSTON, Warden.

77 F. Supp. 687

WRIGHT v. JOHNSTON, Warden.

No. 28026.

District Court, N. D. California.

April 23, 1948.

Before William Denman U. S. Circuit Judge for the 9th Circuit.

DENMAN, Circuit Judge.

Wright has presented to me as circuit judge a petition for a writ of habeas corpus, alleging that his is in the custody of the above Warden, who is holding him under a commitment issued by the District Court of the United States for the Eastern District of Illinois on a judgment sentencing him for an aggregate of ten years of successive sentences and a fine of $10,000, for stealing $2.43 from a postoffice in Strasburg, Illinois, breaking and entering the postoffice and conspiracy with three other accused, tried with him, to commit the above offenses.

The petition alleges, and the Warden agrees, that a five year sentence imposed by the same court the same day as the above sentences and included in the commitment has been served as to its imprisonment period.¹

The petition alleges that the ten year sentences were given after a trial set and had one day after his arraignment; that the court at arraignment appointed an attorney for both Wright and the three other accused; that the three others had given statements to the government officials accusing Wright of committing the crimes on which the trial so was set; that Wright's defense was an alibi to be proved by two witnesses whose names and addresses he gave the court in an affidavit on the morning of the trial and that the court denied a motion for a continuance to secure them, though he had had an attorney, so embarrassed, for less than a day to secure them; that Wright's attorney, so representing clients with such conflicting interests, moved for a segregation of Wright for a separate trial, which motion the court denied.

The petition further claims that Wright's trial, in which he was represented by an attorney so embarrassed, was with a denial of the right of effective assistance of counsel given him by the Sixth Amendment to the Constitution, and that the trial one day after arraignment and one day after he first had any assistance of counsel, and then such counsel, is a denial of the due process of law in violation of the Fifth Amendment.

An order to show cause was issued, issue joined and it was held that the petition stated a cause for the issuance of the writ. The writ was issued and served, return made setting forth the above commitment, the petition stipulated to be a traverse of the return, and hearing had.

At the hearing, it appeared from the record and authorities cited that Wright has made motions in the District Court of the United States for the Eastern District of Illinois respecting the judgment of conviction, long after the term of court in which it was entered. The parties agree that the facts are that these proceedings were not in the nature of coram nobis, and I so find. It was also there agreed that if the ten year sentences were invalid, Wright's petition for release should be granted.

Wright there stated he desired no counsel and would conduct his case propria persona. The Warden was represented by Assistant United States Attorney Joseph Karesh. Stipulated evidence was introduced and the case argued and submitted. Upon this evidence I make the following

Findings of Fact.

Prior to the time of his arraignment, Wright, without counsel, had been confined in Joliet Penitentiary, Illinois, on a sentence for a state offense. On the 16th of September, 1930, he was taken to the United States District Court in Danville, Illinois, and arraigned with the three other defendants.

The judge there presiding deposes that Wright (a) had no attorney, and (b) had no funds to hire one, and (c) that he had no means of securing one, and I further so find.

None of the other three accused had counsel, and the court appointed an attorney then in the court room, one J. D. Allen, stipulated now to be deceased, to serve in that capacity for all of them. That judge deposes that he "directed the United States Attorney to give Mr. Allen full access to all of the file, disclosing all evidence against the defendants, and the United States Attorney complied with the request."

Though neither Wright nor any of the three had had counsel theretofore, the court nevertheless set the case for trial for September 17th, the next day after arraignment.

Allen left the court, went to the office of the United States attorney and there discovered that each of three of his clients had given statements in writing, each (a) charging Wright with the crimes for which he was to be tried the next day and also (b) confessing their own participancy in the crimes.

The unfortunate Allen, a reputable colored practitioner, thus found himself within a few hours of a trial with three clients accusing Wright, a fourth client, and the likelihood that his duty to Wright could oblige him to tell the jury that: "You must disregard the statements of my three other clients accusing Wright of the crime. These are statements of dishonest men — scoundrels who have sought to charge an innocent man with participating in a crime which they alone committed. You cannot believe men of such character." At the same time, Mr. Allen might well be compelled to argue on behalf of the three that: "You must acquit these men because they are innocent, honorable, law-abiding men who could not possibly have done any of the violent and criminal things with which they are charged. They have pleaded not guilty, and you must believe them."

In the few remaining hours for the preparation of the several defenses of the four men, no reputable member of the legal profession could proceed with the case without the frustating knowledge he was violating its primary canon — detachment of interest. Conscientious counsel, as Allen is shown to be, so profoundly embarrassed, was not qualified to give efficient representation to any of his clients.

To add to Attorney Allen's confusion and perturbation of mind, he learned from Wright that his defense was an alibi to be established by two witnesses whose names and addresses in Decatur, Illinois, he was given. All this appeared on a statement given by Wright to the investigating officers and in possession of the prosecuting attorney when Wright was arraigned. Allen thus had to prepare the cases of three of his clients on the three serious crimes charged and to seek to make some overnight contact with Wright's alibi witnesses at the addresses given. Decatur, the town of their residence, is 73 miles from Danville, the place of the trial.

In this situation, Allen waited till the next morning when the trial began, when he made a motion for a continuance as to Wright to have an opportunity to seek his witnesses for his only and, if true, his sufficient defense. For this motion he had prepared an affidavit signed by Wright setting forth the facts.²

The court denied this motion for a continuance. On this, the presiding judge later deposed: "The motion for continuance was denied because I thought that no legal ground for continuance existed. The affidavit disclosed that defendant was evidently aware of the indictment against him as he said that he had attempted to write to two witnesses, but that the authorities at the State Penitentiary did not let his letters go out, but he did not show that from the time he acquired knowledge of the indictment up until the time of the trial, he made any other effort or attempt to get in contact with witnesses or arrange for their presence, or subpoena them. He consulted no lawyer; he wrote no lawyer. He did not write the Judge of the United States Attorney, but waited until the time of his trial, and then made an application for continuance. I believed he had not shown due diligence. If I erred, it was because I believed that fact."

With the case not at issue till arraignment, Wright could not know before arraignment the date the trial would be set. It was not till arraignment that the federal trial judge could perform his obligation to advise Wright of his right to counsel to prepare his defense.

To meet the situation of the conflict of interest between his three other clients and Wright, Attorney Allen moved for a severance as to Wright, Wright's affidavit having stated: "This affiant further says that he is informed and believes that the issues involved in this cause will be controverted, and that the evidence relating to such issues will be highly conflicting, as introduced by the respective parties." This the court denied, the judge later deposing that: "As to the motion for severance, I thought that inasmuch as these defendants had been indicted together, as co-defendants, inasmuch as they were charged with conspiracy jointly, the Government should not be put to the expense of more than one trial before one jury. I believed that I could adequately protect the rights of each defendant by my charge to the jury, and this I attempted to do, and, in my discretion, therefore I denied the motion." (Emphasis supplied)

Attorney Allen made no further motion to relieve himself of his dual and conflicting representation, and on September 17th the trial was commenced.

At the trial, what had appeared in the affidavit for severance was further confirmed. The prosecution introduced the statements of Allen's three other clients accusing Wright of the three crimes and also confessing their own guilt. Also was introduced Wright's statement showing his claim of alibi and the names and addresses of his witnesses. The two witnesses to prove the alibi were not procured and the prejudicial inference necessarily arose in the jurors' minds that his failure to produce such clearly exculpating testimony meant there was no such testimony.

As to the statements of the three co-defendants charging Wright with the crimes and also confessing their own participancy therein, the judge deposes that he charged the jury that "no confession was binding on any person other than the...