In re Hunt

• Decision Date: 25 October 1967
• Docket Number: Civ. A. No. 30346.
• Parties: In the Matter of Ernestine W. HUNT, for a Writ of Habeas Corpus.
• Court: U.S. District Court — Western District of Michigan

276 F. Supp. 112

In the Matter of Ernestine W. HUNT, for a Writ of Habeas Corpus.

Civ. A. No. 30346.

United States District Court E. D. Michigan, S. D.

October 25, 1967.

Clark Shanahan, Owosso, Mich., and B. J. George, Jr., Ann Arbor, Mich., for petitioner.

Frank Kelley, Atty. Gen. of Mich., by Robert Deitrick, Asst. Atty. Gen., Carl Waag, Asst. Pros. Atty., Pima County, Ariz., amicus curiae, Marjorie F. McGowan, Detroit, Mich., Asst. Legal Advisor to Governor George Romney.

OPINION AND ORDER

TALBOT SMITH, District Judge.

In this case we must consider the application of the "Great Writ"¹ in the most delicate of circumstances, involving the relationship of a lower Federal Court to the legal process of a sovereign state. Arizona has tried the petitioner, on a felony charge, in absentia, (a procedure permitted by Arizona law) and has convicted her. She is in Michigan, before this Court, her extradition having been requested and ordered. She argues that such a trial has not afforded her due process, and if she is returned to Arizona all that remains is to sentence her. In opposition it is urged that this Court need not consider what has happened heretofore in Arizona, indeed that upon the authority of Sweeney v. Woodall, 344 U.S. 86, 73 S. Ct. 139, 97 L.Ed. 114, reh. den. 344 U.S. 916, 73 S.Ct. 332, 97 L.Ed. 706 (1952), reversing 194 F.2d 542 (CA 6, 1952)² it is not our concern. Such are the outlines of the controversy. There are no disputed facts, save possibly what may happen in Arizona, if she is returned there. The issues presented are of law.

In more detail, what happened was this: On January 13, 1964, in the State of Arizona, Ernestine W. Hunt and her husband, Maurice, were charged with aggravated assault and battery, and contributing to the delinquency of their five year old adopted daughter.

The defendants were tried, convicted, and appealed. Their convictions were reversed (pre-trial publicity played a part) and the cause remanded for new trial. While at liberty on appeal bond the petitioner and her husband absented themselves from Arizona and established residence in Michigan. This was a voluntary departure, in the sense that it was volitional, and, although the Arizona court was aware thereof,³ no steps were taken to return her to the jurisdiction, or to forfeit her bond, until the proceedings hereinafter described. (We will interject at this point that upon such showing we cannot find, without more, that this was a "waiver" of her rights as to all which followed.) The cause was set and re-set for trial, petitioner requesting various delays, but she was finally ordered to appear for trial. This she failed to do. Bench warrants were thereupon issued and the forfeiture of her bond taken under advisement.

On March 23, 1967, petitioner was arrested on a fugitive warrant in the City of Ann Arbor and bail set. On April 10 extradition papers were forwarded by Arizona (she had refused to waive extradition) and received by Michigan's Governor. (Further details as to the extradition process will be discussed infra). On April 25, 1967 petitioner's trial in absentia was begun in Arizona and a jury verdict of guilty returned.⁴ She is now awaiting sentence in Arizona and it is sought to return her for such purpose. We have required exhaustion of this state's process⁵ before considering the merits of the writ. Prior hereto, we have held two preliminary hearings, denied a motion for transfer, issued certain rulings with respect to the hearing on the merits now concluded, have held pre-trial conferences and have executed a pre-trial order.

We will consider at the outset the validity of the extradition hearings. Extradition, as we have heretofore held, is a Federal matter and the Federal courts have the power to determine whether a person is detained by authority of the United States. The basic authority therefor is found in Article 4, Sec. 2, Cl. 2, of the Constitution of the United States.⁶ The implementing Federal statute is found in 18 U.S.C.A. Sec. 3182. (See, also, the Uniform Extradition Act, C.L.1948, Sec. 780.12, Mich.Stat.Ann. Sec. 28.1285(12))

The main thrust of petitioner's attack upon the extradition proceedings conducted by the Governor of Michigan, resulting in the Governor's authorization of return, rests upon a change in petitioner's legal status. At the time the Governor of Arizona made requisition he did so on the ground (covering letter of Gov. Jack Williams, dated March 31, 1967) that Petitioner "stands charged with the crime of Aggrevated (sic) Assault and Battery, a felony", and thus was to be returned for trial, a purpose also made clear in a communication from William J. Shafer, III, County Attorney of Pima County, Arizona, dated March 13, 1967.

Nevertheless, on April 25, 1967 the Superior Court of Pima County, over objection (as discussed infra) and with knowledge by such Court, the County Attorney, and Defense Attorney, that extradition proceedings were pending, ordered in accordance with Arizona's Rule 231, that an in absentia trial proceed, which it did, conviction resulting. Thus at the time, May 24, when the Governor of Michigan advised Petitioner's counsel that the agent's authorization (to return Petitioner to Arizona on the ground that she "stands charged" with the aforedescribed felony), would issue, and that Arizona's extradition request would be honored, Petitioner had, to Michigan's knowledge, already been tried and convicted in absentia, and thus could not be returned for trial. She could only be returned for sentencing.

The State of Michigan argues that the documents forwarded to the Michigan Governor's office on April 10, 1967, adequately reflected the status of the charges against Petitioner on such date and that nothing in the Uniform Criminal Extradition Act⁷ requires, or even suggests, that an extradition request, proper when filed, need be amended to reflect a subsequent change in the legal status of the fugitive in the demanding state, that, indeed, Petitioner was still "charged" with the described felony in the demanding state, since she had not yet been sentenced.

Further arguments, pro and con, are made by the parties but we will not exhaust them in view of the circumstance (which we find to be a fact) that the Governor's extradition hearing took cognizance of Petitioner's change of status and that the proceedings were conducted in the light thereof. It would have been a more perfect procedure, technically, to have required a formal amendment, but we find no prejudicial error in what was done.

We have previously ruled that we will consider in this hearing the procedures complained of with respect to Petitioner's trial in absentia in the State of Arizona. Respondent vigorously protests, asserting, primarily upon the authority of the Sweeney case, supra, that we cannot look beyond the adequacy of the demand, the content of the instruments submitted. There is something, we concede, to be said for this point of view. It simplifies the task of the asylum state and the courts thereof, both state and Federal therein, as well as avoiding acerbic and demeaning controversies between jurisdictions. Yet before us is a woman charged with a serious offense, tried in absentia while she was in confused mental state,⁸ and it is our order, in effect, returning her for sentencing, which is sought. This court cannot agree that it must close its eyes to what has gone before, which is the basis, indeed, for what lies ahead, or that we may not apply recognized constitutional principles to her situation. The essential question for this court, involves Arizona's attempted utilization of the Federal extradition procedures. Are they sought to be employed, as petitioner asserts, to inflict irreparable harm upon her? Or, as respondent asserts, is this a matter foreclosed to our consideration if the papers are in order?

At the outset we will observe that it was not too many years ago that such considerations as the future of the petitioner in the demanding state (e. g., whether or not the petitioner would be subjected to mob violence if returned) were beyond the scope of inquiry in federal habeas corpus.⁹ In the early 1940's, however, the wall was cracked. Commonwealth ex rel. Mattox v. Superintendent of County Prison, 152 Pa.Super. 167, 31 A.2d 576 (1943),¹⁰ Johnson v. Dye, 175 F.2d 250 (CA 3, 1949), rev'd per curiam, 338 U.S. 864, 70 S.Ct. 146, 94 L.Ed. 530, reh. den. 338 U.S. 896, 70 S.Ct. 238, 94 L.Ed. 551 (1949), and their progeny¹¹ followed, all culminating in the leading case of Sweeney v. Woodall, 334 U.S. 86, 73 S.Ct. 139, 97 L.Ed. 114, reh. den. 344 U.S. 916, 73 S.Ct. 332, 97 L.Ed. 706 (1952), referred to hereinafter as Sweeney. Before leaving the pre-Sweeney cases we will observe (and this observation applies equally to the post-Sweeney cases) that rarely have we read a series of cases so lacking in unanimity as to reasoning, so productive of a drumfire of dissents (e. g., dissent of Bazelon, J., in Johnson v. Matthews, 86 U.S.App.D.C. 376, 182 F.2d 677 (1950)) Opinion of O'Connell, J., in Johnson v. Dye, 175 F.2d 250 (CA 3, 1949). The reason is not difficult to fathom. In each case there has been a conflict between the demands of simple humanity and the demands of comity and federalism.

Sweeney involved two escapees from an Alabama chain gang. They alleged a variety of wrongs, such as "frequent beatings with a nine pound strap with five prongs, at the end of each prong was a silver half dollar", subjection to the "gravel treatment" as well as other alleged abuses and indignities.¹² Both Ohio, the asylum state, and Georgia (Amicus Curiae) urged that Woodall did not claim he could not get a hearing in Alabama, and, assuming the availability of the Alabama remedy, the court held that considerations fundamental to our federal system, required that Woodall make his allegations of unconstitutionality "in the courts of Alabama, where all parties may be heard, where all...