Glynn v. Donnelly

• Decision Date: 11 June 1973
• Docket Number: Misc. Civ. No. 72-103.
• Citation: 360 F. Supp. 214
• Parties: Francis T. GLYNN, Petitioner, v. Robert H. DONNELLY, as he is Superintendent of the Massachusetts Correctional Institution at Walpole, Respondent.
• Court: U.S. District Court — District of Massachusetts

360 F. Supp. 214

Francis T. GLYNN, Petitioner, v. Robert H. DONNELLY, as he is Superintendent of the Massachusetts Correctional Institution at Walpole, Respondent.

Misc. Civ. No. 72-103.

United States District Court, D. Massachusetts.

June 11, 1973.

James W. Kelleher, Boston, Mass., for petitioner.

Charles Chase, Asst. Atty. Gen., Boston, Mass., for respondent.

MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

JULIAN, Senior District Judge.

This case is before the Court on a state prisoner's petition for a writ of habeas corpus. Petitioner Glynn was convicted in two jury trials (generally known as the "small loans" cases) on four indictments charging that he conspired to bribe, and did bribe, two executive officers of the Commonwealth of Massachusetts. Petitioner's convictions were affirmed by the Supreme Judicial Court in Commonwealth v. Beneficial Finance Co. et al., 1971 Mass.Adv.Sh. 1367, 275 N.E.2d 33.

Upon objection by petitioner to the preliminary hearing before a United States magistrate, this Court held a de novo hearing on the petition on January 29, 1973. By stipulation of the parties, only the legal claim embodied in paragraphs 9 and 13 of the petition is pressed in this proceeding. As to that claim, petitioner has indisputably exhausted his state judicial remedies. See Commonwealth v. Beneficial Finance Co., supra, at 1469-1470, 275 N.E.2d 33.

Paragraph 9 of the petition reads as follows:

"Verdicts in the First and Second Trials may not stand because the petitioner was denied Due Process of Law in violation of the Fourteenth Amendment to the Federal Constitution by the application of a rule authorizing the prosecutor to make to the judge (in jury cases) ex parte statements bearing on guilt and on disposition, as more fully set forth in paragraph 13 below."

Paragraph 13 of the petition, with record references and footnotes deleted, reads as follows:

"Ten ex parte applications for out-of-state process against Redfield and four other persons employed by American Investment were made by the prosecutor on July 20, August 16, October 21 and 26, 1966, to the trial judge who on each occasion granted the application and impounded the papers. The petitioner first heard of this some five months after the verdicts and sentences in the First Trial, and thereafter moved to revoke the impounding orders. It then appeared that on the opening day of the First Trial the prosecutor stated, and the trial judge certified to the California Courts, that Redfield had `personal knowledge that a sum of money was delivered to another for the purpose of being paid to an executive officer ... which matters he has testified to before the ... Grand Jury.' Like statements as to personal knowledge were made on the other occasions. None of these persons was called to the stand, though Redfield appeared in the courtroom on September 14, after adjournment, and was ordered to remain in Massachusetts until October 14, 1966, on an understanding between the Court, the prosecutor and Redfield's counsel that he might return to California until his presence was actually needed.

"Petitioner saved his rights by motion for new trial in the First Case, and by motion that the judge disqualify himself in the Second Trial, both motions being filed on July 18, 1967, and expressly claiming a violation of petitioner's rights under the Due Process Clause of the Fourteenth Amendment. Exceptions were duly taken to the denial of each motion and were incorporated, respectively, in petitioner's Assignment of Error No. 13 in his appeal from the First Trial and his Assignment of Error No. 6 in his appeal in the Second Trial, both appeals being taken to the Supreme Judicial Court under G.L. c. 278, ss. 33A-33G. Said appeals were heard together and were decided adversely to petitioner in a single opinion of the Supreme Judicial Court handed down on November 4, 1971. Mass.Adv.Sh. (1971) 1367 275 N.E.2d 33. In that opinion the Court decided that the trial judge acted properly in receiving, granting and impounding the aforesaid ex parte applications of the prosecutor:

`. . . we note that the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, adopted in Massachusetts as G.L. c. 233, ss. 13A-13D, contemplates that the materialty of the testimony of a witness be shown in the certificate of the judge of the demanding State, or else in separate proceedings commenced upon that certificate in the requested state. See People v. Cavanaugh, 69 Cal.2d 262 70 Cal. Rptr. 438, 444 P.2d 110; Re Stamler, 279 App.Div., 908 111 N.Y.S. 2d 313. Presumably, the judge of the demanding State is to satisfy himself that the testimony is in fact material. A bare allegation of materiality, on the part of the prosecution, may not afford a sufficient basis for this determination. State v. Fouquette, 67 Nev. 505, 221 P.2d 404 cert. den. 341 U.S. 932 71 S.Ct. 799, 95 L.Ed. 1361. Contrary to the defendants' contention, the judge here made no preliminary "findings of conspiracy" on the basis of the prosecution's representations. He merely discharged his duty under the statute. To hold that the prosecution's representations so prejudiced the judge as to preclude a fair trial would render useless the statutory procedure of G.L. c. 233, ss. 13A-13D. Neither the judge's certificate nor the representations were ever seen by the jurors, who, of course, were the finders of fact.' Mass.Adv.Sh. (1971) 1469-70.

This holding of the Supreme Judicial Court directly conflicts with the case of Haller v. Robbins, 409 F.2d 857, 859 (1st Cir., 1969).

"The rationale given for the decision of the Supreme Judicial Court, that `the jurors, who, of course, are the finders of fact' never saw the papers filed under the Uniform Law, makes it clear that the rule allowing ex parte application to the trial judge does not extend to trials without jury. A defendant can thus completely escape the dangers of the rule by waiving a jury. It follows that the decisions violates the Due Process Clause of the Fourteenth Amendment by `needlessly' encouraging waiver of the Sixth Amendment right to trial by jury. United States v. Jackson, 390 U.S. 570, 583 88 S.Ct. 1209, 20 L.Ed. 2d 138."

This Court concurs in petitioner's view that the constitutional question of whether the statutory procedure for securing the attendance of out-of-state witnesses, as employed by the state court trial judge in the first trial, violated petitioner's right to due process of law is not adequately answered by noting that the trial judge "merely discharged his duty under the statute." Nor does it suffice to say that the uniform law to secure the attendance of witnesses from without a state in criminal proceedings, M.G.L. c. 233, §§ 13A-13D, would be rendered "useless" if it were held that the "prosecution's representations so prejudiced the judge as to preclude a fair trial." Rather, the issue to be determined is whether petitioner was, in fact, deprived of a fair trial by the prosecution's ex parte communications with the trial judge.

In support of his contention that the statutory procedure, as applied, did deprive him of a fair trial, petitioner offers no evidence of prejudicial consequences in the conduct of the trial.¹ Instead, petitioner invokes the doctrine of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that, once a constitutional right has been shown to have been violated, a court, in order to hold the violation harmless, "must be able to declare a belief that it was harmless beyond a reasonable doubt." Id., at 24, 87 S.Ct. at 828. In Chapman, it was "completely impossible to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioner's convictions." Id., at 26, 87 S.Ct. at 829. On the basis of Chapman, argues petitioner, it is the respondent's burden to demonstrate beyond a reasonable doubt that the prosecution's ex parte communications with the trial judge were harmless.

Petitioner's argument rests upon a premise which this Court does not accept as valid. Specifically, petitioner assumes, as he must in order to invoke the support of Chapman and of Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969), that it was constitutional error for the trial judge to pass upon the Commonwealth's requests for out-of-state witnesses under M.G.L. c. 233, §§ 13A-13D. Petitioner's assumption is based upon an unreasonable construction of the trial judge's statutory function under M.G.L. c. 233, §§ 13A-13D. It is clear that in certifying, for example, that "J. Miller Redfield, of Rancho Bernardo, County of San Diego, State of California, is a necessary and material witness for the Commonwealth of Massachusetts at such trial by reason of the fact that he has personal knowledge that a sum of money was delivered to another...