Clark v. Warden, Maryland Penitentiary

• Decision Date: 06 November 1961
• Docket Number: Civ. A. No. 12613.
• Citation: 199 F. Supp. 29
• Parties: Joseph Henry CLARK v. WARDEN MARYLAND PENITENTIARY.
• Court: U.S. District Court — District of Maryland

199 F. Supp. 29

Joseph Henry CLARK v. WARDEN MARYLAND PENITENTIARY.

Civ. A. No. 12613.

United States District Court D. Maryland, Civil Division.

November 6, 1961.

Daniel H. Honemann, Baltimore, for petitioner.

Thomas B. Finan, Atty. Gen. of Maryland, Robert F. Sweeney, Asst. Atty. Gen., for respondent.

CHESNUT, District Judge.

On November 3, 1960 the above named petitioner, Joseph Henry Clark, then an inmate of the Maryland Penitentiary under sentence of imprisonment for an aggregate of 25 years for two separate cases of assault, filed his petition in this court for release under a writ of habeas corpus, alleging (1) exhaustion of all State remedies and (2) lack of federal due process under the 14th Amendment in the trial of his case resulting in his conviction and sentence of imprisonment.

The defendant did not take a direct appeal to the Maryland Court of Appeals from his trial, conviction and sentences; but he did apply for relief under the Maryland Post Conviction Act (Md.Code of 1957, Supp. Art. 27, § 645A et seq). That petition was considered and dismissed in an original and supplemental opinion by Judge S. Ralph Warnken, then an Associate Judge of the Supreme Bench of Baltimore City, without hearing the petitioner, and a petition to appeal therefrom was denied by the Maryland Court of Appeals. 222 Md. 634, 160 A.2d 780. On reading the petition filed in this court, I dismissed it without hearing because I understood that the Maryland Courts had dismissed it because, while the petitioner alleged perjury in the trial of his case, he did not sufficiently charge State participation therein.

The petitioner then took an appeal to the Court of Appeals for the 4th Circuit where, after hearing the parties, the Court reversed the order of dismissal on the ground that the petition for habeas corpus in this case, although inexpertly drawn, did sufficiently charge knowledge and participation of the State in the use of perjured testimony. Clark v. Warden, 293 F.2d 479. Shortly thereafter I appointed counsel, Daniel H. Honemann, Esq., a competent and active trial lawyer in Baltimore City (formerly an Assistant United States Attorney for the District of Maryland) to represent the defendant and set the earliest practicable date for the hearing of the petition in this court. This hearing has now been held on October 27, 1961, at which time the testimony of at least seven witnesses, including the plaintiff, was heard and after argument of counsel the case has now been submitted for decision by this court.

The petitioner's principal complaint, as indicated in the opinion of Chief Judge Sobeloff of the Court of Appeals of the Fourth Circuit, was that the perjured testimony alleged to have been influential at his original trial in the Criminal Court of Baltimore before Judge Sodaro without a jury, consisted in the "coaching" of prosecuting witnesses in the respective assault cases to identify him, the defendant in the case, at a "line-up" held for that purpose in the Central Police Station, Fallsway and Fayette Street, Baltimore.

The hearing in this court occupied a full day. The witnesses heard consisted of (1) the petitioner himself; (2) the two police officers who made the arrest of the defendant; (3) the two complaining witnesses who participated in the "line-up" proceeding; (4) the attorney appointed by the court to represent the defendant at his original trial, Mr. Harrison, and (5) the Assistant State's Attorney, Mr. James Price, who prosecuted the case. The date of the original sentence in the case was May 9, 1958.

The testimony of the petitioner on examination by his court appointed attorney was to this effect. He was arrested by two police officers, Sgt. Krauk and Patrolman Thommen shortly after the occurrence of the two respective and separate assaults on two different women, but about the same time and near the same place in Baltimore City; that shortly after the arrest the defendant was placed in a line-up under No. 6 at the Central Police Station and several witnesses were introduced to view the men in the line-up when accompanied by the two officers who, with the viewing witnesses were beyond a wire screen separated from the men on the stage line-up by a distance of about eight to ten feet; that the first of the two prosecuting witnesses, Miss Ellen McDaniels, in the assault case identified the defendant at once as man No. 6 in the line-up; but that the second of the complaining witnesses, Mrs. Mary Smith, at first seemingly could not identify the defendant at all until, as the petitioner here testified, she was "coached" by Officer Thommen to identify the petitioner who was No. 6 in the line-up.

On the other hand, testimony offered by the State by both police officers and by both complaining witnesses was directly in point and in substance that there had been no coaching at all by either of the officers with respect to the identification of the defendant; and affirmatively that the identification by each of the complaining witnesses of the defendant as No. 6 in the line-up had been made voluntarily and without any suggestion to that effect by the officer Thommen. Officer Thommen also produced a contemporary record made by him at the time with respect to the names and number of the several witnesses who were called to view and identify or fail to identify the defendant in the line-up. In addition to the voluntary identification of the defendant by the two complaining prosecuting young women as witnesses, at least one or two other witnesses called by the officers for possible identification likewise identified the defendant in relation to the occurrence of one or the other of the assault cases.

Mr. Price, the then prosecuting attorney, stated unequivocally and without contradiction that he had no knowledge or intimation whatever that any of the witnesses had been in any way coached with respect to their identification of the defendant at the line-up. The testimony of Mr. Harrison, the attorney appointed by Judge Sodaro to represent the defendant, was that although the details of the case after three years were not very certain in his recollection, as he had been appointed in numerous other criminal cases to represent indigent defendants in the Criminal Court, the case seemingly presented no unusual or special incidents or difficulties.

The defendant did not take a direct appeal from the sentence to the Maryland Court of Appeals. His complaint now alleged with respect to lack of due process in his prosecution, if made at all at the original trial (as to which there seems to have been no affirmative proof) could have been presented on a direct appeal. It does not appear from the evidence that he affirmatively made any request to Mr. Harrison to advise him with regard to an appeal or to take an appeal. The petitioner says that he did write on one or more occasions to Mr. Harrison after his sentence, for information or advice but there is no evidence in the record to show that any such letters were received by Mr. Harrison and he in fact did not recall having any such letter....