Fouquette v. Bernard, 13274.

• Decision Date: 29 February 1952
• Docket Number: No. 13274.,13274.
• Citation: 198 F.2d 96
• Parties: FOUQUETTE v. BERNARD.
• Court: U.S. Court of Appeals — Ninth Circuit

198 F.2d 96 (1952)

FOUQUETTE v. BERNARD.

No. 13274.

United States Court of Appeals Ninth Circuit.

February 29, 1952.

John W. Bonner, Las Vegas, Nev., for appellant.

W. T. Mathews, Atty. Gen. of Nevada (Geo. P. Annand, Deputy Atty. Gen., William N. Dunseath, Deputy Atty. Gen., John W. Barrett, Deputy Atty. Gen., Roger D. Foley, Dist. Atty., Las Vegas, Clark County, Nev., of counsel), for appellee.

DENMAN, Chief Judge.

Fouquette, sentenced to be executed next Monday, March 3, 1952, by the Eighth District Court of the State of Nevada sitting in Clark County, seeks my order staying his execution for the murder of one Donald Brown pending his appeal in this court from the order of the United States District Court of Nevada denying him relief on his application for a writ of habeas corpus to the warden of the penitentiary where he is confined.

Although the district court denied Fouquette's motion for a stay of his execution, it gave its certificate of probable cause for the appeal which was immediately taken and permitted him to appeal forma pauperis. Obviously, if there is probable cause for the appeal it would be a mockery of federal justice to execute Fouquette pending its consideration.

The basic contention here is that Fouquette who twice confessed to the murder of Brown and another person in the State of California, while he was released as an out patient of an asylum for the insane in the State of California, had his defense of insanity tried in a county where the passion and prejudice against him was so generally aroused that a dispassionate jury could not be impaneled.

The dangerous character of Fouquette's insanity was determined by the superior court of San Bernardino County, California, on January 5, 1948. After an insanity trial the court found: "That Clayton O. Fouquett is so mentally ill as to require supervision and treatment by physicians and hospital care, and that unless such supervision, care and restraint are provided the said person may endanger health, person and property, and that it is dangerous for life, health, person and property for the said person to be without such supervision, treatment, care and restraint, and that the person is so dangerously mentally ill as to require commitment to the Department of Mental Hygiene for placement in a designated State Hospital for the care and treatment of the insane. It is therefore ordered, adjudged and decreed that Clayton O. Fouquett is dangerously mentally ill, is an insane person, and that Clayton O. Fouquett be committed to the Department of Mental Hygiene for placement in a designated State Hospital at Patton, California."

Fouquette has satisfied the requirement of 28 U.S.C. § 2254 in the exhaustion of his state remedies. He had appealed from his conviction to the Supreme Court of Nevada and the judgment was affirmed.¹ He sought certiorari from the United States Supreme Court and it was denied.² He petitioned the Supreme Court of Nevada for a writ of habeas corpus on the ground here relied upon, which was denied him.³ He sought certiorari from the United States Supreme Court, which was denied.⁴

The United States District Court for Nevada permitted Fouquette to file his application for the writ, forma pauperis. Without protest from the Attorney General of the state, who appeared to oppose the application, the district court proceeded to try the case on its merits. The allegations of the application were not denied. Evidence was introduced on behalf of the applicant which was not disputed by the Nevada Attorney General nor any contradictory evidence introduced.

The uncontradicted evidence consisted of an affidavit of John W. Bonner relative to the local prejudice, exhibits of statements in newspapers circulated in Clark County from the time of Fouquette's apprehension to his trial, the above judgment of a California superior court committing Fouquette for his insanity, records of his treatment in the asylum to which he was committed, and his release as an out patient still under the control of the hospital at the time the murder was committed.

It is upon the record of these undenied allegations of the application for habeas corpus and this uncontradicted evidence that the court's certificate of probable cause must be deemed to be based. It is my opinion that the record presents as a substantial question for consideration by this court on the pending appeal, the basic contention stated above as bringing the case within the rationale of such decisions as Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Downes v. Dunaway, 5 Cir., 52 F.2d 586.

The undenied allegations of the application are:

"That petitioner was denied a fair trial because of prejudicial influence outside the courtroom prior to and during his trial in Clark County, Nevada; the newspapers in said county stirred and excited the population of Clark County to such an extent that it was impossible to obtain a jury not influenced thereby; numerous details connected with petitioner\'s life were exploited to the limit by the press; numerous statements were given to the press by officials engaged in the prosecution of petitioner which were freely quoted by the press and given wide publicity; many of such statements contained false, untrue and misleading statements; many of such statements and articles contained matter not admissible as evidence against petitioner; * * * that petitioner was a stranger and unknown in said Clark County and the deceased was a very popular resident of said county; that extreme prejudice existed against petitioner prior to and during his trial throughout said county to such an extent that it was impossible to obtain a fair trial in said county or to obtain a jury which would not be influenced, intimidated, overawed and subjected to severe criticism should a verdict of anything less than that rendered be brought in against petitioner; that in forcing petitioner to trial in Clark County with such prejudice existing over his objections and notwithstanding his motion for change of venue in such an atmosphere, deprived him of his life and liberty without due process of law, contrary to Nevada Statutes, Article I, Section 8 of Nevada Constitution and Section I, Fourteenth Amendment to the United States Constitution.

"That the evidence appearing in the record in said Case No. 3564 of this Court disclosed that petitioner established by a preponderance thereof that on the date of the alleged crime he was insane and still on parole from Patton State Hospital, Patton, California, a State Insane Asylum, having been discharged therefrom on April 28, 1948, the alleged crime having occurred August 19, 1948; although the defense of insanity was established and proved; because the case had already been prejudiced by the local press and because the local prejudice then existing against appellant, after only 15 minutes of

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