Ford v. Israel, 82-1453

• Decision Date: 03 March 1983
• Docket Number: No. 82-1453,82-1453
• Citation: 701 F.2d 689
• Parties: Jesse James FORD, III, Petitioner-Appellant, v. Thomas ISRAEL, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 689

701 F.2d 689

Jesse James FORD, III, Petitioner-Appellant, v. Thomas ISRAEL, et al., Respondents-Appellees.

No. 82-1453.

United States Court of Appeals Seventh Circuit.

Argued Sept. 28, 1982.

Decided March 3, 1983.

Lester A. Pines, Madison, Wis., for petitioner-appellant.

Thomas J. Balistreri, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for respondents-appellees.

Before WOOD and POSNER, Circuit Judges, and MORAN, District Judge. ^*

POSNER, Circuit Judge.

In 1972 a group of masked men robbed Harold's Club, a restaurant and bar near Madison, Wisconsin, and shot and killed the bartender and a patron. The robbers were caught and in 1973 were tried and convicted in a Wisconsin state court. Among the defendants was Jesse James Ford, III, who was convicted of first-degree murder and armed robbery and sentenced to life imprisonment. After exhausting his state remedies, see State v. Shears, 68 Wis.2d 217, 229 N.W.2d 103 (1975), Ford brought a habeas corpus proceeding in a federal district court, 534 F.Supp. 1128, in Wisconsin. The court denied his petition for habeas corpus, and he has appealed to this court, raising three grounds. The most substantial is a claim of denial of counsel. We discuss that last.

Ford claims that the jury instructions violated due process of law by allowing the jury to convict him without being satisfied that he was guilty beyond a reasonable doubt. The jury was instructed: "When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all of the natural, probable and usual consequences of his deliberate acts. If one person assaults another violently with a dangerous weapon likely to kill, and the person thus assaulted dies therefrom, then, when there are no circumstances to prevent or rebut the presumption, the legal and natural presumption is that death was intended." The same instruction was held to be constitutional in Pigee v. Israel, 670 F.2d 690 (7th Cir.1982), with the sole material difference that the phrase "and the person thus assaulted dies therefrom" did not appear in the instruction upheld in Pigee (for the text of that instruction see 670 F.2d at 697 n. 1 (dissenting opinion)). The reason is that Pigee involved attempted murder, while this case involves actual murder. Even so, as the instruction goes to intent rather than effect, it is a little difficult to understand why the quoted phrase was added; but perhaps the thinking was that if the victim actually dies that is additional evidence that the assailant really intended to do him in. It is not very powerful evidence, so if all the instruction had said was that the jury could infer intent to kill from the fact that the victim had died a serious constitutional issue would be presented. But of course that is not all the instruction said; and read as a whole it seems to us insignificantly if at all more adverse to the defendant than the instruction upheld in Pigee.

Ford's next ground of appeal is based on the Fifth Amendment. His defense at trial was that he had withdrawn from the conspiracy before the robbers entered Harold's Club. On cross-examination the prosecutor asked him whether he had told this story to any law enforcement officer before the trial, and he said no; and in closing argument the prosecutor asked rhetorically: "if defendant Ford didn't go into Harold's Club, why didn't he tell law enforcement officials before?" No objection was made to these questions and the Wisconsin Supreme Court held that the failure to object waived any constitutional claim that Ford might have had.

Although at the time of trial it was unclear whether the use of a criminal defendant's silence to impeach his testimony violated his Fifth Amendment right against being compelled to incriminate himself, three years later the Supreme Court held that it did. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). But the failure of Ford's counsel to object to the question and to the use made of the answer in the closing argument was an effective waiver unless there was good cause for not objecting and the failure to object was prejudicial to Ford. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). As we think it was not prejudicial we need not consider whether there was good cause for it. Ford's defense that he had withdrawn from the conspiracy (he admitted having participated in planning the robbery and having accompanied the robbers to the scene of the crime) depended on his testimony that he had not entered Harold's Club. But there was very strong evidence that he had. Although positive identification by the staff and patrons of Harold's was impossible because Ford had been masked, he admitted that he had been wearing a light-colored wide-brimmed hat and a black leather jacket and carrying a pistol; one of the patrons at Harold's testified that a man so dressed and equipped had herded the patrons out of the dining area of Harold's; and none of the other robbers fitted this description. In addition, a conspirator who turned state's evidence testified that he had seen Ford inside Harold's standing over one of the men who had been shot. To this and other evidence placing Ford in Harold's during the robbery the inference that the prosecutor invited the jury to draw from the fact that Ford had not told his story to law enforcement officers before the trial added the merest crumb. We cannot believe a reasonable jury would have acquitted Ford but for that crumb.

We come finally to the issue of denial of right to counsel. Ford was indigent, and Rosen, a young lawyer from the public defender's office, was appointed to represent him. But then Ford's parents retained a Chicago lawyer, Grant, for him. Grant had not been admitted to practice in Wisconsin, however, and local counsel must appear in every case tried in a Wisconsin court, though nonresident counsel may appear in association with the local counsel. Wis.S.Ct. Rule 10.03(4), 36 Wis.2d viii (1968). Rosen offered to serve as local counsel but the trial court ruled that Ford would have to retain--that is, pay for--a local lawyer if he wanted Grant to defend him. Ford's parents balked at putting up additional money for local counsel, whereupon Grant withdrew and Rosen was reappointed to defend Ford. He did so, and Ford, though naturally unhappy at Rosen's failure to have raised the Doyle issue at trial, does not argue that Rosen represented him incompetently.

Rules requiring that local counsel appear in all litigation are, so far as we are aware, universal, and their constitutionality was upheld in Martin v. Walton, 368 U.S. 25, 82 U.S. 1, 7 L.Ed.2d 5 (1961) (per curiam). But the question in this case is not their constitutionality in the abstract but as applied to deprive a criminal defendant of the counsel of his choice. It is true that the Sixth Amendment (as held applicable to the states through the due process clause of the Fourteenth Amendment) does not guarantee an indigent criminal defendant the appointment of the lawyer of his choice, United States v. Davis, 604 F.2d 474, 478 (7th Cir.1979); and the Second Circuit, following Martin v. Walton, has held that a criminal defendant has no right to appointment of out-of-state counsel, Bedrosian v. Mintz, 518 F.2d 396, 400-02 (2d Cir.1975). But it does not follow that the state may arbitrarily refuse to allow the defendant to retain the lawyer of his choice--that it may say to Ford, we will not let you retain any lawyer who charges less than $100 an hour, or does not belong to the American College of Trial Lawyers or the American Civil Liberties Union.

The local-counsel rule, though it has about it the air of a guild restriction and may for all we know be motivated by a desire to increase the fees of Wisconsin lawyers at the expense of lawyers from other states, is not so arbitrary as these examples; and, paradoxically, is less arbitrary in a criminal than in a civil case. It is a favorite tactic of an unsuccessful criminal defendant to complain, on appeal or in a habeas corpus proceeding, that he did not have effective assistance of counsel at trial; and if his only trial counsel was from out of state, and made errors of criminal procedure that a local counsel would not have made, a basis is laid for a colorable complaint of ineffective assistance of counsel. If as Ford contends Wisconsin must in every criminal case waive its rule requiring retention of local counsel, criminal defendants will find it easier to draw out the proceedings against them by complaining that they were denied effective assistance of counsel--a complaint that can be raised against retained as well as appointed counsel and is judged under the same standards in both types of case. Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In the present case it is true, local counsel--Rosen--was willing to serve without fee, and if he had been allowed to do so Ford would have had the counsel of his choice. But Rosen is paid by the state, so it would have meant giving a man who had retained one lawyer another free of charge. The state was not required to do that. The choice was Grant or Rosen; and the state had a reason why it could not be Grant.

That reason might have to give way if it were a great hardship to Ford to be denied Grant's services, but we do not think it was. Admittedly, the state prevented Ford's parents from hiring a particular lawyer, and we may go further and assume that by doing so it prevented them from hiring any lawyer not admitted to practice in Wisconsin, because they could afford only one lawyer. But that left the whole bar of Wisconsin. We cannot believe that the money that Ford's parents were willing to pay Grant could not have hired a lawyer as good, or almost as good, as Grant, but admitted in Wisconsin. That they made no effort to do so suggests that they and their son considered...