Dean v. Israel
Decision Date | 04 June 1981 |
Docket Number | Civ. A. No. 77-C-366. |
Citation | 516 F. Supp. 477 |
Parties | Douglas G. DEAN, Petitioner, v. Thomas ISRAEL and Bronson C. LaFollette, Respondents. |
Court | U.S. District Court — Eastern District of Wisconsin |
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Dennis P. Coffey, Coffey & Coffey, Milwaukee, Wis., for petitioner.
Bronson C. LaFollette, Atty. Gen., and Edward S. Marion and Jerome S. Schmidt, Asst. Attys. Gen., Madison, Wis., for respondents.
DECISION AND ORDER
The petitioner Douglas G. Dean was convicted in Sheboygan County Court on November 21, 1971, of five counts of first degree murder, in violation of § 940.01, Wis.Stats., and sentenced to five consecutive terms of life imprisonment. The victims were the petitioner's mother, Mrs. Dean; his girl friend's mother, Mrs. Rammer; and his girl friend's three brothers. The convictions were affirmed on appeal to the Wisconsin Supreme Court. State v. Dean, 67 Wis.2d 513, 227 N.W.2d 712 (1975). The evidence presented at trial is described in detail in that decision. See 67 Wis.2d at 517-526, 227 N.W.2d 712. Presently pending before this court is Dean's petition for a writ of habeas corpus, which petition will be granted.
Dean raises seven grounds in support of his petition:1 (1) that the prosecution was permitted to ask questions at trial on the petitioner's refusal to answer questions during the investigatory phase of the case without his attorney being present and on the fact of his having retained counsel; (2) that in view of the extensive pretrial publicity about the case, the voir dire was insufficient to protect the petitioner's right to an impartial jury; (3) that the prosecution introduced prejudicial inadmissible hearsay, i. e., statements made by Mrs. Dean, one of the victims, to a third party about her relationship with the petitioner; (4) that the prosecution introduced evidence of other criminal conduct not related to this case and for which the petitioner had never been convicted; (5) that the prosecution asked certain questions implying the existence of evidence not subsequently introduced; (6) that the petitioner had ineffective assistance of counsel; and (7) that the sentence imposed constitutes cruel and unusual punishment. The Court will consider each ground separately below.
(1) USE AT TRIAL OF PETITIONER'S REFUSAL TO ANSWER QUESTIONS WITHOUT THE PRESENCE OF HIS ATTORNEY AND OF HIS HAVING RETAINED COUNSEL
Douglas Dean was discovered in a dazed condition approximately six miles outside of the City of Sheboygan, Wisconsin, at 12:15 P.M. on Monday, July 19, 1971. The five murders for which he was charged had occurred in Sheboygan during the night of July 18-19, 1971. Dean was taken by ambulance to a hospital where he remained under police guard. On Thursday, July 22, 1971, he was formally charged with the murders. Upon his arrival at the hospital on Monday, July 19, 1971, Dean was found to be under the influence of LSD, which is an hallucinogenic-type drug, and his defense at trial was that he had unwittingly taken LSD around midnight on the night of July 18-19, had no memory of the subsequent events of that night, and had been incapable of forming the requisite intent to commit first degree murder.
Dean testified at trial, and during his cross-examination the following exchange took place:
On redirect examination, Dean's attorney questioned him as follows:
Dr. Larry Malewiski, one of Dean's treating physicians at the hospital, was subsequently called as a defense witness, and on cross-examination was asked one question by the prosecutor about Dean's giving a medical history after he had already retained and talked to an attorney. (Tr. at 797.) Dean's sister, Constance Schneider, was also called as a defense witness and was cross-examined by the prosecutor about her reason for hiring an attorney for Dean soon after she learned about her mother's murder and Dean's hospitalization. (Tr. at 836-840 and 842-843.) The exchange between the prosecutor and the witness (Dean's sister) was in part as follows:
The testimony set forth above was admitted at trial in violation of Dean's rights under both the Fifth and the Sixth Amendments to the United States Constitution. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that a defendant's Fifth Amendment right to remain silent is violated when he is questioned at trial about his exercise of that right during a...
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