Ford v. Israel

• Decision Date: 26 February 1982
• Docket Number: No. 79-C-67.,79-C-67.
• Citation: 534 F. Supp. 1128
• Parties: Jesse James FORD, III, Petitioner, v. Thomas ISRAEL, Warden, Waupun Correctional Institution, Respondent, and The Attorney General of the State of Wisconsin, Additional Respondent.
• Court: U.S. District Court — Western District of Wisconsin

534 F. Supp. 1128

Jesse James FORD, III, Petitioner, v. Thomas ISRAEL, Warden, Waupun Correctional Institution, Respondent and The Attorney General of the State of Wisconsin, Additional Respondent.

No. 79-C-67.

United States District Court, W. D. Wisconsin.

February 26, 1982.

Lester Pines, Madison, Wis., for petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., State of Wis., Madison, Wis., for respondent.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a petition for a writ of habeas corpus. Petitioner is an inmate at Waupun Correctional Institution, where he is in custody pursuant to a judgment of the Circuit Court for Dane County, Wisconsin. Dane County is situated within the Western District of Wisconsin. Petitioner claims that he is in custody in violation of the United States Constitution. 28 U.S.C. § 2254(a). Petitioner has been granted leave to proceed in forma pauperis.

The petition presents three major constitutional questions: (1) whether the trial court's refusal to allow petitioner to continue to be represented by his retained out-of-state counsel, when he lacked the resources to retain local co-counsel, denied him his sixth amendment right to counsel as embodied in the due process clause of the fourteenth amendment; (2) whether the prosecutor's question and comment concerning petitioner's post-arrest silence violated his fifth amendment privilege against self-incrimination as embodied in the due process clause of the fourteenth amendment; and (3) whether use of Wisconsin Jury Instruction # 1100, informing the jury that "the law presumes" the existence of a certain intent, improperly shifted the burden of proof on that element of first degree murder to the petitioner, denying him the due process of law guaranteed by the fourteenth amendment.

As to contentions (1) and (2), petitioner has exhausted the remedies available to him in the courts of the state of Wisconsin. As to contention (3), for reasons stated in an order herein dated May 2, 1980, and entered May 6, 1980, exhaustion of those remedies is not required.

Facts

On February 9, 1973, in the Circuit Court for Dane County, Wisconsin, a jury found petitioner guilty of two counts of first degree murder, one count of armed robbery, and one count of concealing identity. He was sentenced to a life term of imprisonment on each count of first degree murder, the sentences to run concurrently. On the armed robbery count he was sentenced to an indeterminate term of not more than thirty years, that sentence to run consecutively to the life terms. For concealing his identity, he was sentenced to an indeterminate term of five years, to run concurrently with the term imposed for the armed robbery. Petitioner is presently confined in Waupun Correctional Institution.

The convictions stem from the events which took place during the course of an armed robbery of Harold's Club, a restaurant and bar located on Commercial Avenue in the town of Burke, Dane County, Wisconsin, on January 13, 1972. The evidence at trial relating to those events is summarized in State v. Shears, 68 Wis.2d 217, 229 N.W.2d 103 (1974).

At petitioner's initial appearance in Dane County Court, he was found indigent, and Bruce Rosen, a member of the legal staff of Dane County Legal Services, Inc. was appointed to represent him. Petitioner's family later retained Arthur Grant, a lawyer from petitioner's home state of Illinois, to represent him. Grant's fee was less than those sought by Wisconsin attorneys. A Wisconsin State Bar rule requires that attorneys not admitted to the bar in Wisconsin appear with local counsel. 36 Wis.2d viii, ix. Grant appeared for petitioner at the first preliminary hearing held January 28, 1972. At that hearing Robert Burr of Dane County Legal Services appeared as local counsel. During the course of the hearing, the court informed petitioner and his counsel that it would be necessary for petitioner to retain local counsel in order to comply with the state bar rule. Petitioner was financially unable to retain such local counsel in addition to his Illinois counsel. At the second preliminary hearing on May 16, 1972, he requested that the court appoint local co-counsel. The court denied petitioner's request and over petitioner's objection discharged Grant for failure to comply with the State Bar rule. The court then reappointed Rosen to represent petitioner for the balance of the trial proceedings. Rosen had graduated from the Law School of the University of Wisconsin and been admitted to the bar of the state of Wisconsin in June 1971, and had immediately entered full-time employment with the Dane County Legal Services Center.

At the trial in January and February, 1973, petitioner presented an affirmative defense. He testified that he had withdrawn from the conspiracy and had not entered the tavern where the offenses took place. On cross-examination the prosecutor asked petitioner if he had ever told law enforcement authorities about his withdrawal prior to trial. Petitioner answered that he had not. In closing argument, the prosecutor stated: "In conclusion, ladies and gentlemen, I will state this — No, excuse me — But in regard to defendant Ford, if defendant Ford didn't go into Harold's Club, why didn't he tell law enforcement officials before? The incident occurred January 13th." Rosen believed at the time that the question and the comment by the prosecutor were permissible and he decided that petitioner's constitutional rights were unaffected by them. No objection was made to either the question asked on cross-examination or the comment during closing argument, and no motion for a mistrial was made.

At the close of the evidence the trial court described the elements of first degree murder and armed robbery. With respect to the element of intent to kill, the court gave the following instruction, based on Wisconsin Jury Instruction # 1100:

While this intent to kill must be found as a fact before you can find the defendant guilty of murder in the first degree, it must be found, if found at all, from his acts and his words and statements, if any, bearing upon his intent. You cannot look into a man's mind to find out his intent. 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.

There was no objection to this instruction.

The court then instructed the jury:

You will note that in the instructions just given you covering the elements of the offenses of first degree murder and armed robbery, the court has referred to the act or acts of a defendant in the singular rather that the plural, and the court has in certain instances made specific reference to the specific acts of a defendant. These instructions do apply to acts of the individual defendants under consideration as you find the facts to be from all the evidence before you.

However, you are further instructed that all three defendants here have been charged, in the first second and third counts of the Information, as being principals in the commission of the alleged crimes of murder in the first degree and armed robbery. In that connection, you are instructed that sec. 939.05 of the Criminal Code of Wisconsin, entitled "Parties to Crime," applies.

The court then instructed the jury on Wisconsin's "Parties to Crime" statute, which provides for conviction of a defendant as a principal if he directly commits the crime, aids and abets in the commission of a crime, or is a party to a conspiracy to commit the crime. It further provides that if a defendant is a party to a conspiracy with another to commit a crime, that party may be convicted of a crime, not originally intended, if the crime is committed in pursuance of the intended crime and if under the circumstances it was a natural and probable consequence of the intended crime. The court told the jury that the "person who is a party to the conspiracy is guilty of the crime actually committed as well as the person who directly committed it."

In describing the burdens which the law places on each party in a criminal case, the court stated:

In determining the guilt or innocence of each defendant, you should scrutinize the evidence with the utmost care and caution, bringing to that duty all of the reason and prudence which you would exercise in the most important affairs of life, in fact, all of the judgment, care, caution and discrimination that you possess, and if after such scrutiny of all of the evidence you entertain a reasonable doubt as to the defendant's guilt, you must acquit him.

The burden of proving each defendant guilty of the crime charged is upon the State, and before you can render a verdict of guilty, the State must prove to your satisfaction, beyond a reasonable doubt, that the defendant is guilty of the crime charged, and of every element thereof, and if you can reconcile the evidence upon any reasonable hypothesis consistent with the defendant's innocence, you should do so and acquit him.

One of the basic principles of our system of justice is that every man is presumed to be innocent until proven guilty beyond all reasonable doubt. The defendant in every criminal action is entitled to the full benefit of the presumption of innocence at the outset of the trial, and such presumption of innocence abides with him throughout the trial of the case and must prevail on your verdicts, unless the evidence convinces you of his guilt beyond all reasonable doubt.

In considering the evidence in a criminal case, you must look to this evidence and view it in the light of that presumption of innocence. The defendant is not required to

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