Petition of Sawyer

• Decision Date: 27 January 1955
• Docket Number: Civ. A. No. 6477.
• Citation: 129 F. Supp. 687
• Parties: Petition of Walter J. SAWYER for a Writ of Habeas Corpus. Walter J. SAWYER, Petitioner, v. Max A. BARCZAK, Sheriff, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

129 F. Supp. 687

Petition of Walter J. SAWYER for a Writ of Habeas Corpus.

Walter J. SAWYER, Petitioner, v. Max A. BARCZAK, Sheriff, Respondent.

Civ. A. No. 6477.

United States District Court, D. Wisconsin, E. D.

January 27, 1955.

COPYRIGHT MATERIAL OMITTED

Carl R. Becker, Milwaukee, Wis., Warren Magee, Washington, D. C., of counsel, for petitioner.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., William J. McCauley, Dist. Atty., Milwaukee, Wis., Herbert L. Mount, Sp. Prosecutor, Milwaukee, Wis., for respondent.

DUFFY, Acting District Judge.

This is a petition for a writ of habeas corpus. Petitioner is a Milwaukee automobile dealer who was convicted in a Wisconsin State court of violation of § 346.06, Wisconsin Statutes. The charge was that he gave Albert J. Krause, then a Milwaukee alderman, a discount on a 1949 Buick automobile, said discount amounting to about $600 (Count 1), and $3,000 in cash (Count 2), with the intention of influencing Krause's judgment and official actions to prevent the proposed demolition by the Milwaukee city authorities of a building then occupied by Sawyer Downtown Motors, Inc., a corporation of which petitioner was the principal stockholder and executive manager.

Petitioner was indicted on April 25, 1950. His first trial was commenced on April 15, 1952 and he was convicted upon both counts of the indictment. Upon appeal to the Wisconsin Supreme Court the judgment of conviction was reversed, State v. Sawyer, 263 Wis. 218, 56 N.W. 2d 811, because the prosecutor's notes used on oral argument were inadvertently sent in to the jury room. A second trial was commenced on July 20, 1953, and petitioner was again found guilty on both counts. The Wisconsin Supreme Court affirmed the conviction. State v. Sawyer, 266 Wis. 494, 63 N.W.2d 749. The United States Supreme Court denied a petition for certiorari, 348 U.S. 855, 75 S.Ct. 80, and thereafter, a petition for rehearing was likewise denied. 348 U.S. 890, 75 S.Ct. 205.

The petition for habeas corpus herein asserts that petitioner has been deprived of federal constitutional rights, 1) in that he was denied a speedy trial in violation of the due process provisions of the 14th amendment; and 2) the reckless use by the State of Wisconsin of the perjured testimony of Albert J. Krause deprived petitioner of a fair and impartial trial guaranteed to him by the due process provisions of the 14th amendment. The State of Wisconsin has moved to dismiss the petition for habeas corpus claiming that petitioner has not exhausted his state remedies in that he did not apply to the Wisconsin state courts for a writ of habeas corpus.

Petition To Dismiss

Title 28 U.S.C. § 2254 provides:

"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, * * *.

"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

In the trial court and in the Supreme Court of Wisconsin, petitioner raised the federal questions that he was denied a speedy trial, and that he did not receive a fair trial because the testimony of Krause was perjured. Thereafter, he filed a petition for a Writ of Certiorari in the Supreme Court of the United States again raising these two federal questions.

The Wisconsin state courts have spoken on the issues raised here. It would be a useless gesture to ask them to decide these issues once more. I hold that petitioner Sawyer has complied with the Federal Statute requiring an exhaustion of State court remedies. The motion of the State of Wisconsin to dismiss the petition for habeas corpus because remedies in the State Courts were not exhausted is denied.

Claimed Denial of a Speedy Trial

Sawyer was indicted on April 25, 1950. The following day he was released on bail and during all the proceedings in the State courts and before the United States Supreme Court, and also pending the instant proceeding, Sawyer has been at liberty on bail.

On February 7, 1951 Sawyer filed an affidavit of prejudice against Municipal Judge Steffes which necessitated calling in a Circuit Judge to try the case. On February 27, 1951 Circuit Judge Boileau of Wausau, Wisconsin, assumed jurisdiction.

Alderman Krause had been previously indicted on bribery charges pertaining to the issuance of a tavern license. In his behalf motions were filed attacking the constitutionality of the Municipal Court Act of Milwaukee, Wisconsin, pursuant to which the grand jury had been convened, and also asking for dismissal of the charges on the ground that the secrecy of the grand jury proceedings had not been properly maintained. On February 28, 1951, the day after Judge Boileau had assumed jurisdiction, similar motions raising the same legal questions were made in behalf of Sawyer who had been indicted by the same grand jury. His motion to dismiss listed fifteen grounds. However, on March 1, 1951 an amended motion to dismiss the indictment was filed upon behalf of Sawyer and the sixteenth paragraph stated "Upon information and belief, that there has been an unreasonable delay in bringing the defendant to a speedy and public trial under the indictment, contrary to the provisions of Section 7 of Article I of the Wisconsin Constitution, and Article V¹ of the Amendments to the United States Constitution." On April 6, 1951 motion to dismiss the indictment was denied.

Sawyer was arraigned and pleaded "Not Guilty" on May 5, 1951. The prosecutor moved for consolidation for the purpose of trial of the two counts against Sawyer with two similar counts against Krause and this motion was subsequently granted. On June 5, 1951 a jury was present and the State elected to proceed to try the Krause case. On the same date Sawyer executed a printed form which waived a trial by jury and consented to an immediate trial before the Court without a jury. The State objected to the waiver of a jury trial and the Court sustained the objection.

Krause was convicted of the charges of bribery and his case was promptly appealed to the Supreme Court of Wisconsin. An examination of the briefs and records shows that the principal grounds for the appeal were the claimed invalidity of the acts of the grand jury, the identical issues which had been raised by Sawyer. The decision of the Supreme Court was handed down on December 4, 1951 and the objections to the validity of the grand jury and its proceedings were overruled. State v. Krause, 260 Wis. 313, 50 N.W.2d 439.

The only request ever made to the Court by the State for a delay in the Sawyer trial was on June 5, 1951. It was obvious that the Court could not proceed that day with the trial of both the Krause and Sawyer cases, and the State elected to proceed with the trial of Krause who had been first indicted. It is also understandable that neither the State nor the defendant would insist on the trial of the Sawyer case while the Krause case was on appeal, for if the Supreme Court agreed with Krause's contention that the proceedings of the grand jury were invalid, it would follow that Sawyer would be discharged without the expense of a trial. Furthermore, the record of Sawyer's first trial discloses no motion addressed to the Court specifically asking for a speedy or early trial. The waiving of a jury and consenting to a trial before the Court although it would usually facilitate an earlier hearing, was not, in itself, a demand for a speedy trial, especially in view of the Court's action in sustaining the State's objection to the waiver of a jury. In Fowler v. Hunter, 10 Cir., 164 F.2d 668, 670, the Court said: "The demand for trial must be addressed to the court in which the indictment is pending (citing cases). Moreover, it has been held that the remedy of a person charged with a crime, who is not accorded a speedy trial, is to demand trial, and if the demand is not met, to apply to the proper appellate court for a writ of mandamus to compel trial (citing cases)."

In its opinion on the first appeal of the Sawyer case the Wisconsin Supreme Court used language which is somewhat confusing. The Court states, 263 Wis. 218, 224, 56 N.W.2d 811, 813: "While there may have been good reason for part of the delay in bringing the instant case on for trial, there would seem to be merit to defendant's contention that the delay from April 25, 1950 (the date of the return of the indictment) until April 15, 1952 (the date of the commencement of trial), did not comply with the constitutional provision requiring `speedy trial'." Nevertheless, the Court thereafter stated: "We are of the opinion that the defendant, as a condition precedent to requesting dismissal of the criminal charge pending against him on the ground that he had been denied his constitutional right of a speedy trial, must first have taken some affirmative action demanding that the case be brought on for trial. This the defendant in the instant case did not at any time do."

It is apparent that the Court did not regard the incidental paragraph in the motion to dismiss, apparently never referred to again before or during the first trial, nor the consent filed by Sawyer to a trial before the Court, as sufficient affirmative action. Whether this Court agrees or disagrees with such conclusion makes no difference on this petition for habeas corpus.

Under federal case law the right to a speedy trial is relative and dependent upon surrounding circumstances. Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed 950; United States ex rel. Hanson v. Ragen, 7 Cir., 166 F.2d 608, 610. Here one of the causes of the delay was Sawyer's filing an affidavit of prejudice against the Municipal Judge. This necessitated calling in of an...