Reimnitz v. State's Attorney of Cook County

• Decision Date: 02 May 1985
• Docket Number: No. 84-2488,84-2488
• Citation: 761 F.2d 405
• Parties: Larry REIMNITZ, Petitioner-Appellant, v. STATE'S ATTORNEY OF COOK COUNTY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 405

761 F.2d 405

Larry REIMNITZ, Petitioner-Appellant, v. STATE'S ATTORNEY OF COOK COUNTY, Respondent-Appellee.

No. 84-2488.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1985.

Decided May 2, 1985.

Kenneth N. Flaxman, Chicago, Ill., for petitioner-appellant.

Kevin Sweeney, Cook County State's Atty., Chicago, Ill., for respondent-appellee.

Before CUDAHY and POSNER, Circuit Judges, and BROWN, Senior District Judge. ^*

POSNER, Circuit Judge.

This case is a fine illustration of the protracted and complex--some might say the fouled-up--character of modern American criminal procedure. The history of the case begins 10 years ago, in January 1975, when Larry Reimnitz's wife was found strangled. They had been married for five months and his wife had complained about his close relationship with a former student (Reimnitz is a schoolteacher), David Spangler. Although suspected of the crime, Reimnitz maintained his innocence and was not charged. Then in August 1975 Reimnitz sexually assaulted Spangler, who told the police, who reopened their investigation of the murder and asked Reimnitz to come to the police station. Reimnitz did so, after consulting his lawyer; and at the police station, after being questioned for seven hours, talking with his wife's mother and with his pastor, and being (he contends) promised leniency if he confessed, Reimnitz confessed to having strangled his wife while resisting her sexual advances. The questioning continued for another five hours, and he elaborated his confession. He was charged with murder, convicted in an Illinois state court, and sentenced to 50-100 years in prison.

At his trial, evidence of the homosexual assault on Spangler was admitted to illuminate the motive for the murder, along with the confession. On appeal Reimnitz contended that both items of evidence should have been excluded. The appellate court agreed that the evidence of the homosexual act should have been excluded, and reversed for a new trial, but declined to reach the question whether Reimnitz's confession had been involuntary and therefore inadmissible. People v. Reimnitz, 72 Ill.App.3d 761, 29 Ill.Dec. 117, 391 N.E.2d 380 (1979). The court invited the parties to introduce further evidence on the issue at the new trial.

Instead of conducting a new trial, the trial court dismissed the charges against Reimnitz on the ground that the prosecutor's effort to introduce evidence of the homosexual act was such serious prosecutorial misconduct as to bar a retrial. The state appealed, and the appellate court reversed and remanded. 97 Ill.App.3d 946, 53 Ill.Dec. 265, 423 N.E.2d 934 (1981). Reimnitz then moved to dismiss the indictment on double-jeopardy grounds and to suppress the confession. No further evidence was presented on the voluntariness of the confession, and the trial judge adhered to the earlier ruling that it was admissible, and he also rejected Reimnitz's double-jeopardy argument. Reimnitz asked the Illinois Supreme Court for a mandamus to bar his retrial but the court turned him down and he then filed this habeas corpus action. As he had been out on bail since the reversal of his conviction (after having served more than two years in prison), he named as the respondents in the action the state's attorney and circuit court of Cook County. The state's attorney, representing both respondents, successfully moved the district judge to dismiss the circuit court from the case on the ground that it was not a person within the meaning of the habeas corpus statute, but the judge refused to dismiss the state's attorney as respondent; held on the merits that retrying Reimnitz would not violate the double-jeopardy clause of the Fifth Amendment (which has been held to be applicable to the states by virtue of the Fourteenth Amendment); and denied his petition without considering the voluntariness of his confession. 596 F.Supp. 47 (N.D.Ill.1984). Reimnitz appeals.

In February of this year, shortly before the argument of the appeal, Reimnitz was retried after we denied his motion to stay the trial pending decision of the appeal. He was convicted of voluntary manslaughter and sentenced to four and a half years in prison, but he is to be released shortly, on the basis of the time he served under his original conviction. His release will not moot this habeas corpus proceeding, however. The release will not be unconditional; the first year will be "mandatory supervised release." Also, the collateral consequences of Reimnitz's conviction for voluntary manslaughter, such as the possibility that the conviction might someday be used to enhance his punishment for a later crime, are enough to keep the proceeding alive after his release from custody. See, e.g., Lane v. Williams, 455 U.S. 624, 632, 102 S.Ct. 1322, 1327, 71 L.Ed.2d 508 (1982); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); McCollum v. Miller, 695 F.2d 1044, 1047-48 (7th Cir.1982). But the state argues that Reimnitz's conviction for voluntary manslaughter mooted this case by making it impossible for him to get the relief he sought in it and that in any event he now has an adequate remedy in the state system (an appeal from the manslaughter conviction) which precludes us from deciding this appeal. We disagree. If Reimnitz was retried in violation of the double-jeopardy clause, the judgment of conviction entered in that trial is invalid and must be set aside; and it would hardly do to subject him to further delay and uncertainty while he pursues his remedies in the state court system, merely because this court let the state retry him while his appeal to us was pending. Although many cases emphasize the harm to a person of being retried that is distinct from the outcome of the retrial, the more dramatic consequence of retrial--conviction--affords as clear a case for relief on double-jeopardy grounds as any. Relief from the second conviction is a conventional remedy sought in double-jeopardy cases--dramatically so in a case like Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), where the second trial had ended in a death sentence.

This does not get us past the threshold, though, since we must still consider the state's argument that we have no power to render an effective judgment because Reimnitz is not in the custody of the state's attorney. The habeas corpus statute does not say who shall be named as respondent in a habeas corpus petition but implies, quite naturally since habeas corpus challenges the lawfulness of the petitioner's custody, that it shall be the person who has that custody. See 28 U.S.C. Sec. 2242. Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts makes this explicit; see also the Advisory Committee's Note to the rule. Although it has been settled for some time now that a person out on bail is still in custody for purposes of the habeas corpus statute, see, e.g., Hensley v. Municipal Court, 411 U.S. 345, 353, 93 S.Ct. 1571, 1575, 36 L.Ed.2d 294 (1973); Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir.1981), on the theory that he is still under restraint (of a sort), the statute and rules make no provision for that case. A person released on his own recognizance is usually considered to be in his own custody; a person released after posting bail is usually considered to be in either his lawyer's custody or the bondsman's custody. But it would be odd to make any of these the respondent in a habeas corpus action. A further complication is that in Illinois a bondsman or bonding company is rarely used; the accused simply puts up 10 percent of the amount of the bond, and is released. If he jumps bail the 10 percent cash deposit is of course forfeited, and in addition he is liable for the other 90 percent. See Ill.Rev.Code 1981, ch. 38, p 110-7.

Whoever operates the local jail (the Sheriff of Cook County, in this instance) has potential custody, which would ripen into actual custody if the accused violated the terms of bail and was recommitted. So maybe the Sheriff should be the respondent. Another possible respondent, as implied in Hensley v. Municipal Court, supra, 411 U.S. at 351, 93 S.Ct. at 1574, is the court that admitted the petitioner to bail and can revoke it, which in this case is indeed the circuit court of Cook County. The state's argument that the "person" to which the statute and rules refers must be a natural person is hard to fathom, especially since (1) the statute and rules were not drafted with reference to the situation presented when a petitioner is out on bail; (2) the state concedes, albeit grudgingly, that the chief circuit judge of Cook County--regarded as an office rather than a living person--would have been a proper respondent; (3) state courts are frequently named as respondents in federal habeas corpus actions without objection. Besides Hensley, see, e.g., Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). But the state's attorney is not the proper respondent, since he in no sense is a custodian of the persons whom he prosecutes.

The truth is that no one has custody of a person who is out on bail but that the Supreme Court has decided that such a person should be allowed to seek unconditional freedom through an action for habeas corpus despite the absence of a custodian. The important thing is not the quest for a mythical custodian, but that the petitioner name as respondent someone (or some institution) who has both an interest in opposing the petition if it lacks merit, and the power to give the petitioner what he seeks if the petition has merit--namely, his unconditional freedom. From this practical standpoint the court that admitted the petitioner to bail, represented in the habeas corpus action by the prosecutor who wants to keep the petitioner from getting unconditional freedom, is a logical respondent. Hensley supports this conclusion. The municipal court that had...