Simos v. Gray, Civ. A. No. 72-C-135.

• Decision Date: 05 April 1973
• Docket Number: Civ. A. No. 72-C-135.
• Citation: 356 F. Supp. 265
• Parties: Kenneth H. SIMOS, Petitioner, v. Ramon GRAY, Warden of the Wisconsin State Prison, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

356 F. Supp. 265

Kenneth H. SIMOS, Petitioner, v. Ramon GRAY, Warden of the Wisconsin State Prison, Respondent.

Civ. A. No. 72-C-135.

United States District Court, E. D. Wisconsin.

April 5, 1973

Nathaniel D. Rothstein, Milwaukee, Wis., for petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., Madison, Wis., for respondent.

DECISION AND ORDER

REYNOLDS, Chief Judge.

The petitioner, Kenneth H. Simos, has filed a habeas corpus petition challenging his state conviction for burglary on the ground that the state failed to disclose material evidence helpful to his defense. The same challenge was presented to the Wisconsin Supreme Court on direct appeal. Simos v. State, 53 Wis.2d 493, 192 N.W.2d 877 (1972). Since petitioner has not raised any new legal or factual issues here, I find that his state remedies have been exhausted, and that pursuant to 28 U.S.C. § 2254 this court has jurisdiction over the constitutional questions presented. Reaching the merits, I conclude that the evidence should have been disclosed and that its suppression so likely affected the result in this case that petitioner's conviction cannot stand.

I

The parties have stipulated to the following facts: On Thanksgiving night, 1969, Benjamin and Dorothy Radcliffe, while returning from a visit with friends, noticed a man and a woman crossing the street in front of them near their home. Upon entering their home, they found they had been burglarized. A neighbor confirmed that the couple crossing the street had left the Radcliffe's home moments before. The Radcliffes summoned the police at once, but no suspects were found nor any action taken.

More than six weeks later the Radcliffes first viewed photographs from the police files. They promptly identified petitioner as the man crossing the street in front of them that night, and from that time forth they never waivered in their identification. At the trial, no other witnesses were able to identify petitioner. All attention focused on the reliability of the Radcliffes' identification. Counsel for both sides stressed the factors which bore on the Radcliffes' opportunity to observe the couple on the night of the robbery. The State emphasized, for instance, that the couple crossed within fifteen feet of the Radcliffes' car and within the beam of its headlights; petitioner's court-appointed counsel emphasized that there was no other source of light and that the car and the couple were moving. The thrust of the Radcliffes' testimony was that they had had an adequate opportunity to observe the couple. Petitioner's counsel also asked Benjamin Radcliffe if he had ever doubted his identification of petitioner, and Radcliffe answered that he had not. The petitioner, who had been convicted of burglary in the past, did not testify.

After the jury found the petitioner guilty in what the trial judge noted was a close case, petitioner discovered two police reports of the Milwaukee Police Department which he had never known about. The first report indicated that on the night of the robbery the Radcliffes declined to view photographs, stating that they were sure they could not identify the couple who crossed in front of them moments before. The second indicated that five days after the robbery Benjamin Radcliffe reported to police that a neighbor and he had again seen the couple and the automobile seen on the night of the robbery. He described the automobile for the police, but upon checking its license number, the police found that it belonged to a person who they were satisfied was not involved in the robbery and who evidently had no connection with petitioner.

Both reports also contained physical descriptions of the man seen. According to the first report, the man was twenty to twenty-two years of age, six feet in height, one hundred ninety-five pounds, with a husky build and a light complexion. The second report was similar indicating that the man had messy and very curly dark brown hair with long sideburns and was perhaps sixteen to eighteen years of age. At the time in question, petitioner was twenty-seven years of age, six feet in height, one hundred fifty pounds with a slim build and straight black hair.

Petitioner's counsel then moved the trial judge for a new trial. When that motion was denied, he appealed unsuccessfully to the Wisconsin Supreme Court. Petitioner's female codefendant was tried after the reports were revealed and was acquitted.

II

I approach the issue in this case cognizant of the careful attention given it by the trial judge and the Wisconsin Supreme Court. The trial judge in particular was in a better position than I to determine whether the suppression of the evidence actually caused petitioner substantial prejudice. The great difficulty law enforcement officials encounter in resolving burglaries such as this also exerts a sobering influence over any tendency to reverse when the innocence of the accused has not been demonstrated. See Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. of Chi.L.Rev. 142 (1970-71). The interests in finality of litigation are likewise significant.

Such considerations, however, do not dispel my duty to re-examine the issue presented in light of present constitutional doctrine and the policies underlying that doctrine. It is too late to argue in this forum that the right of habeas corpus is not worth the price, however high, society pays for it.

The United States Supreme Court has made it clear that the State's failure to disclose evidence helpful to the defense raises a due process issue of constitutional dimensions, properly the subject of a petition for habeas corpus. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady the Court declared:

"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment * * *." Id. at 87, 83 S. Ct. at 1197.

Due process imposes this duty on the State primarily because of the imbalance of resources between the State and the typical defendant. Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228 (1964); Duty of the Prosecutor to Disclose Exculpatory Evidence, 60 Col.L.Rev. 868 (1960).

Recently federal courts have required disclosure even though defense counsel did not request it and even though the evidence was equally available to him. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); United States v. Poole, 379 F.2d 645 (7th Cir. 1967); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2nd Cir. 1964); Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964). The decisions reflect the evolving belief that a criminal trial should be more a quest for truth than a sporting event where counsel's oversight is fatal. Giles v. Maryland, 386 U.S. 66, 102, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) (Fortas, J., concurring); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1967); Ingram v. Peyton, 367 F.2d 933, 936 (4th Cir. 1966).

This evolving belief also helps to explain the parallel evolution in the standard for determining when the failure to disclose evidence necessitates reversal. At one time convictions were generally reversed only upon a showing that the prosecutor acted in bad faith in, for example, intentionally suppressing evidence. Reversal was believed necessary to maintain the integrity of the judicial process and to deter prosecutors from further suppression. Suppression caused by negligence was less likely to be deterred, so little purpose was served by reversing because of it. Whether the suppression of the evidence was likely to have prejudiced the defendant was not emphasized. The more modern standard shifts attention from whether the prosecutor's conduct was unsportsmanlike to whether the result would have been different if the evidence had been disclosed. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Note, 74 Yale L.J. 136, 138-39 (1964). In 1961 Judge Friendly described the relation between these standards which case law appeared to reflect:

"* * * the required showing of prejudice seems somewhat to vary inversely, with the degree to which the conduct of the trial has violated basic concepts of fair play. * * *" Kyle v. United States, 297 F.2d 507, 514 (2nd Cir. 1961).

In short, the worse the conduct of the State, the less the prejudice to the accused needed for reversal.

These principles guide my approach to the issue presented here. Since petitioner's counsel never requested the prosecutor to disclose evidence and since petitioner does not claim that the State acted in bad faith, prejudice needs to be shown. Since I conclude below that the State had a duty to disclose the police reports, less prejudice is required than if the evidence was first discovered by either party after trial.

The Wisconsin Supreme Court never reached the question of the degree of prejudice necessary for reversal in this case. In finding that the district attorney had no duty to disclose the police reports, the Court emphasized that the reports did not necessarily demonstrate that Benjamin Radcliffe's testimony was false. His testimony could, after all, be taken to mean that he had no doubt that petitioner was the man who crossed the street in front of him after he saw petitioner's picture.

Had the suppressed statements disproved Benjamin Radcliffe's testimony, the long established rule which prohibits a prosecutor from allowing false evidence to go uncorrected would apply and would require reversal even in the absence of prejudice. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). But this long established duty to correct false evidence is not the limit of the modern prosecutor's obligations. At least since Brady,...