Application of Cochran
| Decision Date | 12 August 1977 |
| Citation | 434 F. Supp. 1207 |
| Parties | Application of James COCHRAN for a Writ of Habeas Corpus. Application of Norman Wayne COCHRAN for a Writ of Habeas Corpus. |
| Court | U.S. District Court — District of Nebraska |
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John P. Murphy and Ronald A. Ruff, North Platte, Neb., for petitioner James Cochran.
James E. Schneider and James R. Nisley, North Platte, Neb., for petitioner Norman Wayne Cochran.
Marvin L. Holscher and George E. Clough, Deputy County Attys., for Lincoln County, North Platte, Neb., for respondents.
William Glenn Cochran has been charged by the State of Nebraska with the murder of Louis Brigman. William's two brothers, James Russell Cochran and Norman Wayne Cochran, are in custody by virtue of the Nebraska Material Witness Statute, § 29-507, Neb.R.R.S.1943, which states:
"If any witness so required to enter into a recognizance refuses to comply with such order, the magistrate shall commit him or her to jail until he or she complies with such order or is otherwise discharged according to law."
These habeas corpus proceedings challenge the constitutionality of the statutes and assert that the petitioners' being in custody is a denial of their rights under the Constitution of the United States.
William Cochran was arrested on Friday, June 24, 1977. James and Norman Cochran were taken that day to the Lincoln County jail and held there over the weekend. The following Monday they were taken before a judge of the County Court of Lincoln County, Nebraska, where a deputy county attorney orally asserted that James and Norman Cochran were material witnesses to the shooting of Louis Brigman. There was no filing or serving on James and Norman of any document and no evidence was presented. The judge ordered that counsel be appointed and set bond at $25,000 for each of the two witness brothers, with the option to post ten per cent of that amount.
The following morning James and Norman again appeared in the County Court of Lincoln County, this time with their court-appointed attorneys, who moved orally for a reduction of the bonds. Challenge was made to the constitutionality of the statutes under which they were held, as well as to the sufficiency of the evidence of any intention not to appear. The bond was reduced by the county judge to $15,000 with the privilege of depositing ten per cent, pending the preliminary hearing which was scheduled for the next day on the question of whether William should be bound over to the district court for trial for murder.
Upon completion of the preliminary hearing, counsel renewed their motions for a further reduction in the bond and asked that the witness brothers be released. The county judge denied their motions based upon the testimony adduced at the preliminary hearing and the hearing on the motions for a reduction of the bonds, although he did not specify what evidence he found significant or make any findings.
James filed a petition for a writ of habeas corpus in the District Court of Lincoln County and a hearing was held promptly on June 30. The petition was dismissed and thereafter a motion for new trial was denied. James filed in the Supreme Court of Nebraska a notice of appeal on July 25 and an application for an expedited hearing on July 28. The application was denied on July 29.
Norman Cochran, on the other hand, first filed a petition for a writ of habeas corpus in this United States District Court, which was dismissed on July 7 for failure to exhaust state remedies. Norman then sought and was denied a writ of habeas corpus in the District Court of Lincoln County, from which an appeal has been taken to the Supreme Court of Nebraska, which on August 1 denied Norman's motion to advance the cause.
Both petitioners have been notified by the deputy clerk of the Supreme Court of Nebraska that the Supreme Court of Nebraska is in summer recess, that the first session of the court will begin on September 19, and that it is very unlikely that either of the cases will be reached during September or October. Trial of the charge against William Cochran is scheduled to begin on September 6. James Cochran has been released on bond,1 but Norman remains in jail because of a financial inability to post bond.
and says:
"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."
Here, the petitioners have used all available procedures, including appeals to the Supreme Court of Nebraska. The appeals remain unheard because the Supreme Court is in recess and will remain so until two weeks after the trial at which the petitioners are to testify is scheduled to begin. Requests for expedited hearings have been denied and the best information the petitioners have from that court is that a hearing probably cannot be had until after October. It is not that the petitioners or the Nebraska courts have moved slowly. All have proceeded with dispatch. But the timing has been such that the Supreme Court cannot accommodate the petitioners' need for swiftness.
Under these rare circumstances, the procedure of obtaining a decision by the Supreme Court of Nebraska is really not "available" and is "ineffective to protect the rights of the prisoner(s)." Unless the schedule changes substantially, the "functional reality"2 is that the rights of the petitioners will be beyond protection by the time the appeal is heard.3 I am persuaded that there has been exhaustion of state remedies.4
The petitioners' position is that § 29-507 invidiously discriminates against adult men5 and thus collides with the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States, because it places a ceiling of $100 on the amount of any recognizance required of a married woman or minor, but places no ceiling on that required of an adult male. My reading of § 29-507 does not support this interpretation. As I see it, the statute places no limit on the amount of recognizance which may be required of anyone —male or female, married or single, adult or minor. The only limitation is on the amount the magistrate may permit the married woman or the minor personally — as distinguished from a surety — to provide.
The first sentence relates to all material witnesses, including married women and minors:
"When the magistrate is satisfied that any witness against the accused will not appear and testify at the trial, he may ... order him to recognize with sufficient securities."
The second sentence deals with the question of who can "recognize," once a decision has been made to require a recognizance:
"Any person may recognize for a married woman or minor to appear as a witness, or the magistrate may take the recognizance of either in a sum not exceeding one hundred dollars, which shall be valid notwithstanding the disability of coverture or minority."
The common law disability of coverture has remained in effect in Nebraska continuously, except as altered by statute, and not until the enactment of the 1957 amendment to § 42-202, Neb. R.R.S.1943, was the disability fully removed. That disability rendered a wife virtually incapable of making a valid contract6 and limited her powers to control her own property.7 Until 1957, a wife could not be liable as a surety.8
Minority also disables a person from freely contracting or performing other legal acts.9
The words in § 29-507, "notwithstanding the disability of coverture or minority," adopted by the Nebraska Legislature in 1873, reflect a design to limit to the extent stated the disability arising from either condition. Without the lifting, it is doubtful that the magistrate would have been authorized by the statute to permit a married woman or a minor to make recognizance herself or himself—that is, without someone else's supplying the bond or other security. The disability was lifted, however, only to the extent of $100. If a greater amount were required for the release of a married woman or a minor, the first clause of the two sentences applies:
"Any person may recognize for a married woman or minor to appear as a witness . . ."
The Supreme Court of Nebraska has not interpreted the statute, and if there ever was any legislative history, it evidently is no longer extant. No similar statute in any other state with respect to a monetary limitation as to married women and minors has been found.10 So, the Nebraska statute itself must provide the evidence for its construction. The interpretation I have expressed seems to me to be the one which the Supreme Court of Nebraska would probably adopt.
Thus construed, the statute does not discriminate against adult males, whether single or married, but against married women and minors. Put in terms of these cases, nothing in § 29-507 would have prevented the judge's requiring a...
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