Brownstein v. DIRECTOR, ILLINOIS DEPT. OF CORRECTIONS

Citation594 F. Supp. 494
Decision Date24 September 1984
Docket NumberNo. 83 C 3477.,83 C 3477.
PartiesRonald BROWNSTEIN, Plaintiff, v. DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS, et al., Defendants.
CourtU.S. District Court — Northern District of Illinois

Kenneth N. Flaxman, Chicago, Ill., for plaintiff.

Mark L. Rotert, Asst. Atty. Gen., Chicago, Ill., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SHADUR, District Judge.

Ronald Brownstein ("Brownstein") has petitioned pursuant to 28 U.S.C. § 2254 ("Section 2254") for issuance of a writ of habeas corpus against the Director of the Illinois Department of Corrections and the Illinois Attorney General (for convenience, but without any Eleventh Amendment implications, collectively the "State"). After the State had sent Brownstein on a procedural wild goose chase described in greater detail below, his case ultimately ended up before this Court for a hearing (as required by Section 2254(d)) on the question whether Brownstein had been denied his right to a jury trial. For the reasons set forth in these Findings of Fact ("Findings") and Conclusions of Law ("Conclusions"), found and stated in accordance with Fed.R.Civ.P. ("Rule") 52(a), Brownstein's petition is denied.1

Findings of Fact
History of the Case2

1. Brownstein was originally charged with four offenses involving possession of controlled substances. In a bench trial commencing May 28, 1980 (hereinafter simply "May 28"), Cook County Circuit Judge Michael Close found Brownstein guilty as charged and sentenced him to six years' imprisonment. Brownstein (represented by new counsel) then moved for a new trial, asserting he had never signed a jury waiver form or otherwise waived his right to a jury trial. Despite the silence of the transcript as to any such waiver, Judge Close refused to convene an evidentiary hearing and denied the motion based on (1) the court clerk's entry on the half-sheet for the critical date, indicating Brownstein was advised of his right to a jury and waived that right, and (2) Judge Close's own stated recollection of Brownstein's express waiver. Brownstein then filed a motion for reconsideration, also offering affidavits from his trial counsel to negate the jury waiver, but the judge then found he no longer had jurisdiction over the case and declined to evaluate the motion.

2. Brownstein appealed his conviction, specifically raising his Sixth Amendment claim.3 In affirming Brownstein's conviction, the Illinois Appellate Court rejected that argument:

We believe that the trial court's finding regarding defendant's waiver is not against the manifest weight of the evidence.
People v. Brownstein, 105 Ill.App.3d 459, 463, 61 Ill.Dec. 352, 355, 434 N.E.2d 505, 508 (1st Dist.1982), cert. denied, 459 U.S. 1176, 103 S.Ct. 826, 74 L.Ed.2d 1022 (1983). Both the Illinois Supreme Court and the United States Supreme Court denied review.

3. When this action was first filed, Opinion I dismissed Brownstein's petition based on the State's Attorney's assertion Brownstein had state remedies available under the Illinois Post-Conviction Act, Ill. Rev.Stat. ch. 38, ¶¶ 122-1 to 122-7. Yet when Brownstein then sought post-conviction relief under that Act in the state court, the State's Attorney reversed the State's position and argued the Act was not available to Brownstein. At that point the state judge hearing the petition agreed with the State's new legal stance and refused to consider Brownstein's petition.

4. Understandably frustrated by his ride on the State's procedural merry-go-round,4 Brownstein returned here. This Court then reinstated Brownstein's federal court petition under Fed.R.Civ.P. 60(b)(3) on the ground the previous judgment in the State's favor had been procured by its "misconduct." Then the State moved to dismiss Brownstein's petition, claiming Judge Close's factual determination that Brownstein had waived his right to a jury trial was entitled to deference under Section 2254(d) because it resulted from an adequate state court hearing. That position represented yet another volte-face by the State — totally contrary to its earlier position before this Court that Brownstein had post-conviction state remedies available because (Opinion I, 565 F.Supp. at 109) "Brownstein clearly did not have a meaningful opportunity to introduce his currently-tendered evidentiary support for the claim" before Judge Close. Opinion II denied the State's motion to dismiss, concluding consistently with Opinion I that Section 2254(d) did not preclude habeas review because no adequate hearing had occurred at the state trial court level. Brownstein's petition was set for hearing, and an evidentiary hearing was held May 10 and 11, 1984.

Events of May 28

5. Brownstein's May 28 state court transcript shows no jury trial waiver by Brownstein. It does reflect that when Brownstein's case was called Brownstein's attorney Steven Silets ("Silets") immediately moved for a continuance on the ground Brownstein had suffered injuries (torn ligaments of the rib cage) in an auto accident some days before and was under medication for that condition. Judge Close denied Silets' motion. It was not Silets but one of Brownstein's other attorneys, Herbert Abrams ("Abrams"), who was to try the case.5 Because Abrams was not present, the court recessed while Silets called Abrams and Abrams made his way to court. When Abrams arrived and Brownstein's case was recalled, the transcript shows Abrams immediately raised his concern as to his inability to obtain a transcript of some testimony Abrams hoped to use for impeachment purposes. After discussion of that concern, one of the prosecutors requested and obtained a five or ten minute recess for an apparently unrelated purpose. Brownstein's case then went promptly to trial before Judge Close, commencing with opening statements. Thus the transcript reflects neither (a) a colloquy in which Brownstein waived his right to a jury trial nor (b) any recess or off-record discussion during which Brownstein could have discussed his right to a jury trial with Judge Close.

6. At this Court's May 10-11, 1984 hearing, Nikki Whittingham ("Whittingham"), Judge Close's court reporter on May 28, as well as Brownstein and Abrams all testified that the transcript accurately depicts what occurred at the beginning of Brownstein's trial. According to those three witnesses Brownstein did not waive his right to a jury trial during any court recess of May 28, and the transcript accurately shows Judge Close did not go off the record to discuss such matters with Brownstein. Whittingham was particularly convincing because she had no motive to misrepresent the events of May 28 intentionally, and her clear memory of details not appearing in the transcript (such as Brownstein's appearance on that day and which persons ordered that transcript) demonstrates she also is unlikely to have forgotten those events or to have misrepresented them unintentionally. Accordingly this Court credits the testimony of Whittingham, Brownstein and Abrams as corroborated by the official transcript. It concludes Brownstein was not admonished of his right to jury trial by Judge Close on May 28.

7. Judge Close's testimony is to the contrary.6 Judge Close testified he presided over more than one bench trial in which Brownstein was the defendant, and he specifically recalled that on May 28 he admonished Brownstein as to his right to a jury trial, received a signed jury waiver from Brownstein through Abrams and discussed with Brownstein the seriousness of a Class X felony charge. Although this Court does not find Judge Close intentionally misrepresented the events of May 28, his testimony simply cannot prevail over the combined weight of the testimony of the other three witnesses and the corroborating transcript. Obviously this Court must find someone is mistaken about what took place. Four factors compel the rejection of Judge Close's testimony on whether Brownstein was admonished as to his right to jury trial:

(a) By Judge Close's own estimate he has disposed of about 700 or 800 criminal cases from May 28, 1980 to the time of his appearance at this Court's hearing May 10, 1984. Unless a jury trial actually is requested, each defendant must be apprised of his or her right to a jury trial. That makes the jury-trial-admonition process tremendously commonplace to Judge Close. This Court knows how difficult it is to recall a particular day's proceedings years in the past — that same effect must take its toll on the recollection of Judge Close, especially when the proceedings in question are not particularly novel.
(b) In contrast to Whittingham, Judge Close accurately recalled few details surrounding the proceedings of that day. He was very tentative about testifying to any such details, and on those occasions when he ventured a cautious opinion about background facts or events he was often wrong.7
(c) No written waiver (which Judge Close maintained Brownstein executed) was ever produced or has ever been found.
(d) Most importantly, Brownstein had appeared before Judge Close as a defendant in a bench trial (represented by the same counsel) a few months earlier. In that earlier case Brownstein was charged with a Class X felony.8 Thus that case very likely involved an admonition by Judge Close to Brownstein about his right to jury trial and the seriousness of a Class X felony charge, and perhaps involved a written waiver by Brownstein as well. Taking all the evidence into account, the best reconciliation of the conflicting testimony is that Judge Close was probably thinking of that earlier proceeding when he mistakenly testified he remembered the May 28 events in his courtroom.

8. True enough, a statement in the state trial court's half-sheet entered by Judge Close's clerk Evelyn Walton indicates Brownstein was advised of his right to trial by jury and waived that right. However that entry could have been made as a matter of course regardless of what occurred (indeed when Brownstein...

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3 cases
  • United States ex rel. Bradley v. Hartigan
    • United States
    • U.S. District Court — Central District of Illinois
    • 24 Junio 1985
    ...5 (7th Cir.1983); United States ex rel. Williams v. Franzen, 687 F.2d 944, 951 (7th Cir.1982); Brownstein v. Director of Illinois Department of Corrections, 594 F.Supp. 494, 500 (N.D.Ill.1984) aff'd 760 F.2d 836 (7th Cir.1985). Federal habeas corpus relief is precluded, however, where the s......
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