Callahan v. Lash, Civ. No. 4032.

• Decision Date: 13 September 1974
• Docket Number: Civ. No. 4032.
• Citation: 381 F. Supp. 827
• Parties: Michael T. CALLAHAN, Petitioner, v. Russell E. LASH, Warden of the Indiana State Prison, Respondent.
• Court: U.S. District Court — Northern District of Indiana

381 F. Supp. 827

Michael T. CALLAHAN, Petitioner, v. Russell E. LASH, Warden of the Indiana State Prison, Respondent.

Civ. No. 4032.

United States District Court, N. D. Indiana, South Bend Division.

September 13, 1974.

Terry V. Lehr, Crumpacker, May, Levy & Searer, South Bend, Ind., Ferdinand Samper, Sr., Samper & Samper, Indianapolis, Ind., for petitioner.

Darrel K. Diamond, A. Frank Gleaves III, Deputy Attys. Gen., State of Indiana, Indianapolis, Ind., for respondent.

MEMORANDUM

GRANT, District Judge.

This pro se Habeas Corpus Petition was originally filed on June 14, 1967. Thereafter, appointed counsel advised this court that the petitioner had for many months been confined as a mental patient in the Dr. Norman Beatty Memorial Hospital, Westville, Indiana, and that, in the opinion of the treating physicians, the petitioner was not then capable of intelligently participating in any evidentiary hearing. A full staff report from the hospital reaffirmed these facts and, in light of the suggestion that petitioner's condition might continue for an indefinite period of time, this petition was dismissed without prejudice to reinstatement at such later time as the petitioner "is found to be capable of taking part and assisting in the prosecution of this action . . . ." Following petitioner's subsequent release from said hospital, this action was reinstated, new counsel for the petitioner appointed by this court, and the petition scheduled for an evidentiary hearing on March 21, 1973.

This Habeas Corpus Petition is now before this court for determination on two grounds,¹ (1) that the petitioner was deprived of his constitutional right to competent counsel, and (2) that the publicity and the conditions of the courtroom created an atmosphere that deprived him of his Sixth Amendment right to a fair trial as demanded by the due process clause of the Fourteenth Amendment.

Petitioner was indicted and found by a jury to be guilty of the 1961 murder of Officer Edward G. Byrne of the Marion County, Indiana, Sheriff's staff, in the perpetration of a burglary. Following judgment and sentencing, the defendant (petitioner herein) filed a motion for a new trial, asserting as grounds in support thereof (1) that the finding of the jury was not sustained by sufficient evidence and (2) error of the Court in the conduct and supervision of the trial, and other grounds not pertinent to this proceeding. Following denial of that motion, defendant appealed and the judgment was affirmed by the Supreme Court of Indiana, 246 Ind. 65, 201 N.E.2d 338. Over two years later, Callahan was back before the Supreme Court of Indiana with an original proceeding for Writ of Certiorari to review the action of the Marion County (Indiana) Criminal Court in denying him permission to file a belated motion for new trial. That Petition for Writ of Certiorari was denied. 247 Ind. 350, 214 N.E.2d 648.

The murder of Officer Byrne occurred on a Sunday morning, April 16, 1961. Byrne had gone to the Hilltop Tavern, in the suburbs of the City of Indianapolis, to investigate a report concerning three men who were seen in the vicinity of the tavern under suspicious circumstances. Officer Byrne apprehended the three men in an automobile as they were leaving the tavern. He caused them to get out of their car and approach his patrol car where he, still seated under the steering wheel of his car, proceeded to write down information from the liense of the member of that threesome who was the driver of the get-away car. There was testimony at the trial that during this questioning procedure, Callahan (one of the three) walked to the side of the patrol car, thrust a gun through the open window and fired eight shots at close range into the body of the officer, killing him. The three men escaped and Callahan was apprehended two days later in the attic of a Johnson County farmhouse following an intensive manhunt in that central Indiana area.

As might be expected, this case was the subject of many news stories in the three Indianapolis newspapers, including headlines, pictures, and editorial comment during the several days following the murder, the two-day manhunt, and the funeral of the slain Deputy Sheriff. It should be noted here that the trial in the Criminal Court in Marion County (Indianapolis) did not take place until March 19, 1962 — some eleven months later. At that trial, defendant was represented by retained counsel. Retained counsel, in compliance with Indiana's statutory requirements, filed a notice of alibi and called witnesses to show that the defendant was "elsewhere" than near the Hilltop Tavern at the time of the killing of Officer Byrne. However, both of petitioner's two accomplices in the crime took the stand during the trial and testified that Callahan had killed the Deputy. Several other occurrence witnesses placed Callahan and the other two men at the scene of the crime.

We turn first to the allegation that the publicity and the conditions of the courtroom created an atmosphere that deprived petitioner of his Sixth Amendment right to a fair trial as demanded by the due process clause of the Fourteenth Amendment.

As noted above, this case was the subject of many news stories in the three Indianapolis newspapers, including headlines, pictures and editorial comment during the several days following the murder, the two-day manhunt and the funeral of the slain Deputy Sheriff. In fact, fifty of the 118 news articles which were collected and admitted herein as Court's Exhibit No. 1, were published in the two-week period following the murder, i. e., between April 16th and April 30th, 1961. During the eight-month period that followed, i. e., from June, 1961, and continuing through the month of January, 1962, there were a total of only thirteen articles in all three Indianapolis papers combined. Based upon that eight-month interval in time, and if petitioner's subsequent trial had been conducted in an atmosphere of "judicial serenity and calm to which petitioner was entitled,"² we would find it difficult indeed to make a finding of prejudice resulting from pre-trial publicity because, as the Second Circuit spoke in United States v. Bowe:³

The importance of this time-lag cannot be overlooked. Both the Supreme Court and this court have indicated that the length of time between the publication of adverse publicity and the empaneling of the jury is a significant factor in assessing claims of prejudice resulting from pretrial publicity. (Cases omitted.) Since the articles involved here were twelve weeks old at the time the jury was empaneled, it is highly unlikely that they were retained in the memories of the jurors. As Judge Weinfeld has pointed out, it is a fact that "frequently in this large metropolitan district, prospective jurors show little recall of past widely publicized matters * * *."

We stated above that the publicity of April and May, 1961, standing alone, would not be sufficient in our judgment, to support a claim of a denial of procedural due process at the March, 1962, trial. However, when viewed as a part of the totality of circumstances surrounding the March, 1962, trial, it becomes quite another matter. That publicity "must now be considered against the setting in which the trial was held".⁴ That trial, if it can be so termed, took on the atmosphere of a circus and by the prominence given the trial by the number of newsmen, including cameramen, who roamed the courtroom, apparently at will, all those headlines, pictures, and editorial comments of April, 1961, came back to life in the minds of the jurors and the community from which they were drawn.

The testimony of witnesses at this habeas corpus hearing together with the 100-odd news stories admitted into evidence as Court's Exhibit No. 1, disclose the following:

There was uncontroverted testimony at the hearing that there were from 10 to 20 armed guards in the courtroom — many of them in uniform. The guard standing at the main entrance into the courtroom carried a shotgun; others wore side arms. It was testified that other armed guards stood "one at each end of the jury box, one at the rear door behind the judge's bench, then the one at the front door with the shotgun, and then, if I recall, there was one on the other wall behind the defense table".

When asked how many TV stations had cameras in the courtroom, it was testified, "I couldn't say for sure, but there was — there is only four channels down there and there was more cameras than that. So evidently some of them had other cameras for different profile shots or something".

There was testimony of "flashbulbs popping" and photographers moving around "behind the jury" and "behind the judge's bench there was room and they would use that as a place to change their positions". Further, that scenes from the courtroom were being shown on TV news programs on "just about every channel . . . . It was the number one thing on the news program."

Court's Exhibit No. 1, supra, includes the following articles written during the trial — each carrying pictures taken in the courtroom during the proceedings:

March 9, 1962 — Indianapolis News (Front page of news section) — Article showing full-length picture of petitioner with handcuffs and leg irons as he was brought back from the Indiana State Reformatory to the Marion County jail to begin his trial for the slaying of the Deputy Sheriff. During the first three days of trial, while the jury was being empaneled, the petitioner was brought into the courtroom, in the presence of the jury, shackled with handcuffs and leg irons. All of this in view of the news and TV cameras hereinabove referred to.⁵ (Exhibit #54.)

March 19, 1962 — Indianapolis News — Front page — Picture of jury and counsel as Deputy Prosecutor "questions prospective jurors". (Exhibit #92.)

March 19, 1962 — Indianapolis Times — In a two-column news story headed "Two Oppose Death at Callahan Trial" appears the following:

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