Russ v. Israel

• Decision Date: 28 January 1982
• Docket Number: No. 81-C-257.,81-C-257.
• Citation: 531 F. Supp. 490
• Parties: Steven RUSS, Petitioner, v. Thomas ISRAEL, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

531 F. Supp. 490

Steven RUSS, Petitioner, v. Thomas ISRAEL, Respondent.

No. 81-C-257.

United States District Court, E. D. Wisconsin.

January 28, 1982.

Harvey Jay Goldstein, Goldstein & Goldstein, Milwaukee, Wis., for petitioner.

Bronson F. LaFollette, Wis. Atty. Gen. by Michael R. Klos, Asst. Atty. Gen., Madison, Wis., for respondent.

DECISION and ORDER

MYRON L. GORDON, District Judge.

Steven Russ petitions for a writ of habeas corpus. His petition originally contained ten grounds, but grounds numbered five and ten were dismissed for failure to exhaust state remedies in an order dated May 28, 1981. In addition, I granted Mr. Russ' motion to amend his petition to include a ground numbered eleven in an order dated July 2, 1981. In his brief in support of his petition, Mr. Russ has concentrated on grounds numbered two, eight, and eleven. Accordingly, I will address those grounds first.

I. BACKGROUND

Mr. Russ was convicted after a jury trial in circuit court for Milwaukee County of armed robbery, party to a crime, in violation of Wis.Stat. §§ 943.32(1)(b), (2) and 939.05. Judgment of conviction was entered on September 8, 1978. Judge Christ T. Seraphim presided at the trial. The following factual background is derived from the transcript of Mr. Russ' trial and includes matters that are not disputed.

In the early morning of April 19, 1976, two men armed with sawed-off shotguns entered a restaurant in Milwaukee. One of the men ordered the counter attendant, Sharon Herriges, to empty the cash register; the other covered the patrons in the restaurant. The cash drawer was taken by the man covering Ms. Herriges. She testified that the register contained about $200, including $40 in change. The manager of the restaurant, Solon Wiggins, was present, as was a customer, Bruce Holland. After taking the money, the men fled, and Mr. Wiggins called the police. Later that day, a sawed-off shotgun was found in the yard of a home a short distance from the restaurant in the direction the men had fled.

Approximately one and a half hours after the robbery, a police officer observed Mr. Russ and Alphonso Rhoden driving a car within nine blocks of the restaurant. He stopped them for a minor traffic violation. When he searched Mr. Rhoden, he discovered two shotgun shells in Mr. Rhoden's coat; one shell was identical to a shell found in the abandoned shotgun, the other was similar. Messrs. Rhoden and Russ also matched the police radio description of the restaurant robbers. The officer took them back to the restaurant, where they were positively identified as the robbers by Ms. Herriges and Mr. Wiggins. Their car was eventually searched, and clothing similar to that worn by the robbers was discovered. A jacket found in the car contained a substantial amount of change. The police also found a sawed-off shotgun in the trunk.

A preliminary hearing was held eight days after the robbery. Mr. Wiggins was the only witness called, and he again identified Messrs. Russ and Rhoden as the robbers. Mr. Holland also attended the preliminary hearing and told the police that the two were the robbers.

For a variety of reasons, the trial was delayed for a substantial period of time, and Mr. Wiggins died in the interim. Over defense objections, the transcript of his testimony at the preliminary hearing was read to the jury. Mr. Holland and Ms. Herriges also testified, but neither was sure that Messrs. Russ and Rhoden were the robbers. The two were convicted. Mr. Rhoden received a seventeen year sentence; Mr. Russ was sentenced to twenty-five years, to be served consecutively to two eight year concurrent sentences imposed in 1977 after convictions for armed robbery. Mr. Russ is currently confined in the Wisconsin correctional institution at Waupun.

II. GROUND TWO

In ground two of his petition, Mr. Russ asserts that Judge Seraphim ejected him from the courtroom and that this violated his constitutional rights under the fifth, sixth and fourteenth amendments. It is well-settled that a criminal defendant has the right to represent himself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A criminal defendant also has the right under the sixth amendment to be present in the courtroom during his trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). However, a defendant may lose that right if he

"... insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." Id., at 343, 90 S.Ct., at 1060 (footnote omitted).

The Supreme Court in Allen made explicit reference to its earlier admonition in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), that a trial judge must exercise every reasonable presumption against the loss of constitutional rights, Allen, supra, 397 U.S. at 343, 90 S.Ct. at 1060, but endorsed removal as one of at least three "constitutionally permissible ways for a trial judge to handle an obstreperous defendant." Id., at 343-44, 90 S.Ct., at 1060-1061.

When the petitioner's trial commenced, he complained that his court-appointed counsel, Jack Goldberg, was unprepared for trial. After considerable discussion, it was agreed that Mr. Russ would represent himself, but that Mr. Goldberg would remain in the courtroom for possible assistance. Tr., J-I, pp. 2-19. (The trial transcript has two parts, both labeled "J." Counsel have adopted the nomenclature "J-I" and "J-II," and I will also do so). Mr. Russ then acted as his own attorney on a variety of pretrial matters, although he consulted with Mr. Goldberg on occasion. J-I, pp. 38, 79.

The period when Mr. Russ represented himself was often marred by difficulties. Mr. Russ made improper statements or raised improper questions several times. See J-I, pp. 25, 35, 39-40, 43, 55, 57-58, 65, 106, 213. His representation of himself was also peppered with vulgar remarks. See J-I, pp. 41, 46, 49, 80-81, 98, 106. He frequently disrupted the orderly process of the court. See J-I, pp. 43-44, 46-47, 48-49, 61-62, 77, 94-98. The trial judge repeatedly warned Mr. Russ that his conduct would prompt his gagging or removal from the courtroom. J-I, pp. 40-41, 44, 47-49, 61, 77, 82, 95, 97-98, 100-02, 106-07, 191-92.

Mr. Russ' conduct is perhaps best illustrated by the following passage:

"THE COURT: Addressing the jury

* * * * * *

"They both may be innocent. Maybe only one is guilty. Maybe both are guilty. It is going to be up to you to decide in the end.

"DEFENDANT RUSS: Why don't you quit talking that jive. You are trying to railroad me. How did my case end up from Wedemeyer court to this Court. You explain that other jive to me. Explain that to him. Explain how you people initially and arbitrarily sent my case to Wedemeyer's courtroom to your courtroom.

"THE COURT: Mr. Russ—

"DEFENDANT RUSS: You are trying to railroad me.

"THE COURT: Mr. Russ, are you going to remain silent? Are you going to remain silent as you promised me you would?

"DEFENDANT RUSS: What you mean I promised? I don't come with all that ethical bullshit. You're the worst shit. You know enough to hang a judge. Why—

"THE COURT: Bring the defendant into my Chambers. Madam Reporter?

"(The following proceedings were held in Chambers out of the presence of the prospective jurors.)

"The prosecutor: I'd like—

"DEFENDANT RUSS: Mother-fucker, conspiring against me, man.

"The prosecutor: I have been involved with this man for over a year and a half, and I've been down the road with him through five attorneys, and I've seen these allegations. I've seen these explosions. I've tried him in front of Judge Wedemeyer when he had an attorney giving him advice, and he tried the case.

"THE COURT: was there a mistrial on that?

* * * * * *

"The prosecutor: A different matter. My point is that this is not new conduct. It is my view that this has been calculated conduct to avoid going to trial, that this is just another effort to—

"DEFENDANT RUSS: Why don't you quit that?

"The prosecutor: He has fired attorneys—

"DEFENDANT RUSS: You wouldn't buy your own law books rules and regulations.

"The prosecutor" He has fired attorneys—

"THE COURT: Will you remain—

"DEFENDANT RUSS: The man—

"THE COURT: Bring a gag. Bring a gag.

"DEFENDANT RUSS: You ain't said nothing.

"THE COURT: Will you remain silent?

"DEFENDANT RUSS: You going to put—

"THE COURT: Shackle him.

"DEFENDANT RUSS: —before this girl, that woman, sawed off shotguns and tell her to identify me, buying her identify me —

"THE COURT: He's threatening the police officer.

"DEFENDANT RUSS: All I said, I'm coming out, man. I don't care what you talking about. You don't have to gag me. There ain't going to be no more outbursts.

"THE COURT: I—are you telling me now that you will stop talking when I tell you to stop?

"DEFENDANT RUSS: Right.

"THE COURT: And you are not going to make another outburst?

"DEFENDANT RUSS: Right.

"THE COURT: All right. Let's go out there. This is the last chance I will give him.

"AN OFFICER: The handcuffs off?

"THE COURT: He has now given me his word. We will see what good his word is. Wait a minute. Do you give me your word as a Muslim that you will not make another outburst?

"DEFENDANT RUSS: I'd be a fool to even say something like that to you.

"THE COURT: That's an oath. On your oath as a Member of your Church?

"DEFENDANT RUSS: I wouldn't make an oath to you. I would never make an oath to you, man, couldn't make an oath to you. I'd kill myself first.

"THE COURT: Oh, then you are not sincere. Are you telling me that, sir, you don't really—

"DEFENDANT RUSS: I'm saying that I would never make an oath to you, like I couldn't do it.

"THE COURT: You mean to me personally or to

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