Spain v. Rushen

• Decision Date: 29 June 1982
• Docket Number: No. C 81-4858 TEH.,C 81-4858 TEH.
• Citation: 543 F. Supp. 757
• Parties: Johnny SPAIN, Petitioner, v. Ruth RUSHEN, Director, California Dept. of Corrections, Jess Marquez, Superintendent, California Medical Facility, Vacaville, Cal., Respondents.
• Court: U.S. District Court — Northern District of California

543 F. Supp. 757

Johnny SPAIN, Petitioner, v. Ruth RUSHEN, Director, California Dept. of Corrections, Jess Marquez, Superintendent, California Medical Facility, Vacaville, Cal., Respondents.

No. C 81-4858 TEH.

United States District Court, N. D. California.

June 29, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Dennis Riordan, Acting Deputy State Public Defender, Benjamin Dreyfus, Charles Garry, San Francisco, Cal., for petitioner.

Ronald Niver, Deputy State Atty. Gen., San Francisco, Cal., for respondents.

OPINION AND ORDER

HENDERSON, District Judge.

This case is before the Court on Spain's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Petitioner claims that he is in custody pursuant to a judgment of conviction that is constitutionally defective as a result of events that occurred at his trial. First, Spain contends that ex parte communications that took place during his trial between a juror and the trial judge deprived him of his constitutional rights to assistance of counsel and to be present at a critical stage of his trial. Second, the Petitioner asserts that his Due Process right to be presumed innocent at trial was violated when he was forced to stand trial while shackled and chained. For the reasons set forth below, this Court is compelled to issue the writ.

I. FACTS

The petition for writ of habeas corpus arises out of Spain's trial as one of a group of defendants popularly known as "The San Quentin Six." The trial, which began in 1975, concerned August, 1971 events at San Quentin Prison that resulted in the death of George Jackson and five others. At the time these events occurred, Petitioner Spain was incarcerated on a first degree murder conviction.

The indictment on which the defendants were tried contained twelve counts, including conspiracy to escape by force or violence, assault, and murder in the deaths of two prisoners and three correctional officers. All of the defendants were charged and tried on the conspiracy and murder counts. The trial began on March 25, 1975 and ended on August 12, 1976 after twenty-four (24) days of jury deliberation. Three of the six defendants were acquitted on all counts. One was convicted of one count of assault, and another of two counts of assault. The remaining defendant was Johnny Spain.

Spain, the only defendant who was a member of the Black Panther Party, was the only defendant convicted of conspiracy and/or murder. On a theory of vicarious liability arising out of the conspiracy conviction, Spain was convicted of murder in the deaths of two of the three correctional officers who died in the escape attempt allegedly led by George Jackson. People v. Spain, Pinell, and Johnson, No. 1/Crim. 16126 at 2 (California Ct.App., July 24, 1980) hereinafter cited as Ct.App.Opinion. Consistent with the vicarious liability theory, Spain was acquitted of murder in the deaths of the third correctional officer and the two prisoners. Id.

The relevant portions of the record at trial and on appeal have been lodged with the Court¹ and thoroughly reviewed. The facts bearing on the petition are not in dispute and are set out in detail in the parties' able briefs and in the unpublished opinion of the California Court of Appeal affirming the convictions of Spain and the other two convicted defendants, People v. Spain, Pinell, and Johnson, No. 1/Crim. 16126 (July 24, 1980). To the extent that factual findings pertinent to the issues raised here were made by the California Court of Appeal, those findings are presumed to be correct. Sumner v. Mata, ___ U.S. ___, ___, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982) (per curiam); 28 U.S.C. § 2254(d).

With respect to the ex parte communications between judge and juror, the facts are as follows. Jury selection took thirty-nine trial days. The sensational nature of the 1971 events and the Black Panther membership of George Jackson and Petitioner Spain prompted voir dire concerning both violence and perceptions of the Black Panther Party. The California Court of Appeal described the pre-trial voir dire as follows:

Fagan the juror who had ex parte communications with the trial judge, during the voir dire of the venire, was shown a videotape of the trial judge's admonishing prospective jurors of the importance of revealing any association with crimes of violence and attitudes toward radical groups, specifically the Black Panther Party. Fagan was asked:

"Q. How about crimes of violence? Any knowledge of that at all?

"A. No.

"Q. Witness, victim, otherwise?

"A. No.

"...

"Q. Have you heard of the Black Panther Party?

"A. Yes.

"Q. Do you associate the Black Panther Party with any form of violence in your own mind?

"A. No."

Ct.App.Opinion at 9.

During the defense case at trial, a witness for Spain testified that the 1971 events for which Spain and the other defendants were on trial resulted from a police plot to eliminate a group of Black Panthers by setting up a Panther "rescue" of George Jackson and then ambushing the entire group. The witness identified a Black Panther named Pratt as a police informant involved in the plot as leader of the "rescue" group. Pratt, however, had been in custody for the 1968 murder of a Santa Monica woman during the entire period of the alleged rescue plot. This information about Pratt's whereabouts and the reasons therefor was used to impeach the defense witness on cross-examination. Id. at 9-10; see also Examination of Juror Fagan at Post-trial hearing, Trial Court Transcript 23957:2-8 hereinafter cited as C.T..

During a recess on the day of this cross-examination, Juror Patricia Fagan went to the chambers of trial Judge Henry J. Broderick and told him that she suspected that the 1968 murder referred to in cross-examination was the murder of her friend, Carolyn Olson, by a Black Panther Party member. Record on Appeal, 5480:28—5481:13 hereinafter cited as R.App.; C.T. 23919:7-11; Ct.App.Opinion at 10. Ms. Fagan told the judge that, if the matter were gone into further, she might start to cry in the court-room. R.App. 5481:13-14; Ct.App.Opinion at 10. Judge Broderick indicated that it was unlikely that the 1968 murder referred to was that of her friend and told Ms. Fagan not to concern herself with it. R.App. 5481:14-17; C.T. 23919:25-28; Ct. App.Opinion at 10. The judge also asked Ms. Fagan whether Pratt's association with her friend's murder would affect her disposition of the case. Ms. Fagan responded in the negative. C.T. 23919:20-24; Ct.App. Opinion at 10. No record was made of the conversation and neither the parties nor their counsel were informed of its occurrence at the time it took place. Ct.App. Opinion at 11.

That evening, Ms. Fagan asked her mother the name of the person who killed her friend Olson, and her mother informed her that it was Pratt. R.App. 5481:18-20; Ct. App.Opinion at 10.

The next day, Ms. Fagan went to see Judge Broderick again to inform him that she had confirmed that the testimony given on the previous day related to the death of her friend. R.App. 5481:21-23; C.T. 23920:1-4; Ct.App.Opinion at 10-11. Ms. Fagan reiterated the effect that renewed discussion of the 1968 murder might have on her composure. R.App. 5481:23-25; C.T. 23920:4-10; Ct.App.Opinion at 11. The judge advised Ms. Fagan that the lawyers probably would not go into the matter further, and asked again whether Ms. Fagan's disposition toward the case would be affected by the information in her possession. Id. Ms. Fagan responded that she would be very unsettled if Pratt were called to testify. Id. No record of this second conversation was made and none of the parties was informed of its occurrence. Ct.App.Opinion at 11.

Juror Fagan's second conversation with Judge Broderick took place on Friday. Evidence was presented the following Monday, the next trial day, that Pratt was a leader of the Black Panther Party in Los Angeles. Id. at 12.

Despite the cross-examination question posed by the prosecutor concerning Pratt's incarceration for murder, no admissible evidence was introduced that Pratt in fact had killed or been convicted of killing Carolyn Olson. Id. at 11. Juror Fagan, however, told other jurors that Pratt had been convicted of murdering a friend of hers. R.App. 5482:2-3; Ct.App.Opinion at 11; see also Examination of Juror Fagan at post-trial hearing, C.T. 23971:24-23972:1, 23978:27-23979:1.² Ms. Fagan, in an affidavit submitted in opposition to Spain's motion for a new trial, denied that she made any derogatory comments about the Black Panther Party in her conversations with other jurors concerning the death of her friend. R.App. 5482:2-7; Ct.App.Opinion at 11.

Following the testimony pertaining to Pratt, Spain presented evidence of his Black Panther Party membership. Ct.App.Opinion at 12. In his closing statement, the prosecutor argued to the jury that the Black Panther Party helped to smuggle weapons or ammunition to Jackson "and implied that Spain's party membership was evidence that he, too, was `involved in' the escape plan and `working with' George Jackson." Id. at 5-6.

Counsel for Spain learned of the conversations between Juror Fagan and Judge Broderick after the jury returned its verdict. A motion for new trial based on these conversations was promptly filed. R.App. 5437 et seq. Ms. Fagan's affidavit was submitted as part of the record at the hearing on the new trial motion, at which Ms. Fagan testified. In her affidavit, Ms. Fagan stated that she associated the Black Panther Party with worthwhile activities and that at the time of pre-trial voir dire the death of her friend was not in her mind. R.App. 5482:7-18. No other jurors testified at the hearing on the motion for a new trial, at which Judge Broderick presided. The motion was denied in October, 1976. C.T. 24013:12-20414:7.

The pertinent facts with respect to the shackling of the Petitioner at trial are as follows. Spain was indicted in October, 1971. From the time of his indictment...