State v. Woodington
| Decision Date | 07 June 1966 |
| Citation | 31 Wis.2d 151,142 N.W.2d 810 |
| Parties | , Blue Sky L. Rep. P 70,716 STATE of Wisconsin, Respondent, v. Neil A. WOODINGTON, Appellant. |
| Court | Wisconsin Supreme Court |
Immell, Herro, Buehner, DeWitt & Sundby, Madison, Lawton & Cates, David Loeffler, Madison, of counsel, for appellant.
Bronson C. La Follette, Atty. Gen., Earl Munson, Jr., Madison, for respondent.
Although the appellant has enumerated 16 assignments of error, they will be categorized into four issues:
1. Were the activities of the state's agents prior to trial such that there was a deprivation of due process requiring dismissal of the charges?
2. Was the evidence sufficient to convict appellant beyond a reasonable doubt?
3. Were the instructions prejudicially erroneous?
4. Is sec. 189.19(2)(d), Stats., void for vagueness?
The appellant contends that the conduct of the state's officers, particularly the attorney general, during their investigation of MAGIC, and eventually Allied, deprived appellant of due process of law, for which dismissal is the appropriate remedy.
An investigation into MAGIC began about August 6, 1964, and ended about November 1, 1964. During this period, just prior to the 1964 general election, several state officials exchanged letters and issued press releases.
The import of the attorney general's statements was to the effect that he had received complaints about the operation of MAGIC and that the insurance commissioner had refused or had neglected to cooperate in an investigation of the complaints and had withheld materials and information necessary for the investigation by the attorney general. He also claimed the governor refused to co-operate and condoned the actions of the insurance commissioner. Further claim was made that the district attorney of Dane county was reluctant to co-operate. Although reference was made by the attorney general to the fact that Woodington and Kelly were members and substantial contributors to the political party of the governor and district attorney, he did not specifically accuse or state that Woodington or Kelly was guilty of any crime. His statement was to the effect that the investigation should proceed forthwith so that their guilt or innocence could be established.
Woodington and Kelly also participated in the publicity by issuing news releases and by purchasing full-page newspaper space for their statements.
The charges, countercharges and explanations did receive publicity and comment in the press, radio and television.
The appellant does not rely upon the content of the publicity to support his argument for dismissal. He states in his brief, 'Our focus is solely upon the source, i.e agents of the state, and particularly the Attorney General.'
Further, the appellant does not categorically claim he did not receive a fair trial but rather the pre-trial publicity was such that it is not certain he did receive a fair trial or that he could have received a fair trial in any area in the state and was thus denied due process under the Fourteenth Amendment of the United States Constitution.
Appellant moved for dismissal before trial. The motion was denied. No motion for change of venue or continuance was made, even though the trial court virtually invited such motions. Appellant did not move for a new trial on this ground and does not now ask for a new trial based upon prejudicial pre-trial publicity. He asserts the only adequate remedy is a admissal of the charges.
It is significant that appellant did not make a record of the voir dire examination, apparently had no trouble in drawing a jury, and has nowhere alleged that the particular jury selected was in any way prejudiced or unfair. It is fundamental that appellant must show that he did not receive a fair trial before he can get to the question of whether or not a fair trial could ever be obtained.
Sec. 14.526(1), Stats., provides:
'There is created within the office of the attorney general the division of criminal investigation for the purpose of investigating crime which is state-wide in nature, importance or influence.'
It is thus apparent that the attorney general has a legitimate interest in investigating complaints of criminal conduct if, in his opinion, the investigation is warranted.
A perusal of the various due process cases indicates that the law is concerned with the actual effect ill-advised pre-trial publicity produces at the trial.
In Delaney v. United States (1st Cir. 1952), 199 F.2d 107, the defendant, who was collector of internal revenue for the district of Massachusetts, was charged with violations consisting of taking money to influence decisions before him. He was suspended, removed, indicted, and arraigned with the expected publicity in the Boston newspapers. At the time of these occurrences there was a congressional committee on administration of internal revenue laws conducting investigations. This committee sent work that it intended to proceed promptly with its public hearings. Delaney protested because his trial had not occurred, and the only possible result of public hearings would be to adversely prejudice the community against him. A member of the Justice Department appeared before the committee to urge that matters before it not be publicly disclosed, but the committee proceeded with its public hearings over additional Justice Department entreaties.
The committee conducted public hearings in Boston which were extensively reported in the newspapers. The hearings resumed in Washington where they focused on Delaney. Boston papers sent feature writers to cover the events. Many witnesses before the committee had testified before the federal grand jury in the Delaney Case. Delaney was not subpoenaed or invited to the hearings. No cross-examination was allowed. The evidence went far beyond that relevant to the charges against Delaney and concerned his private, personal affairs, and other possibly criminal conduct. At the close of the hearings the committee chairman commented publicly on the hearings.
The court stated:
Delaney filed a motion to dismiss and a motion for continuance. Both motions were denied. The Court of Appeals stated:
The court went no to recognize that this was a unique case in the sense that the publicity was not initiated by newspapers or private persons, but by the United States itself. The court determined that:
'If all this material had been fed to the press by the prosecuting officials of the Department of Justice, we think that an appeallate court would have had to say that the denial of a longer continuance was an abuse of discretion.' Id. page 113.
'We think that the United States is put to a choice in this matter: If the United States, through its legislative department, acting conscientiously pursuant to its conception of the public interest, chooses to hold a public hearing inevitably resulting in such damaging publicity prejudicial to a person awaiting trial on a pending indictment, then the United States must accept the consequence that the judicial department, charged with the duty of assuring the defendant a fair trial before an impartial jury, may find it necessary to postpone the trial until by lapse of time the danger of the prejudice may reasonable be thought to have been substantially removed.' Id. page 114.
Nowhere in this case, although the issue was directly before it, did the court suggest the possibility that dismissal would be appropriate. The court did, however, reverse as to the denial of the continuance.
Commonwealth v. Geagan (1959), 339 Mass. 487, 159 N.E.2d 870, certiorari denied 1959, 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152, was the case concerning the great Brinks robbery in Boston in 1950. Defendants there moved to quash the indictments because they could never receive a fair and speedy trial. The motion was based on press releases and statements of state and federal law enforcement authorities which received emphasis in the newspapers.
The court labeled any publicity created by public officials as indefensible, but it did not dismiss.
Id. 339 Mass. page 501, 159 N.E.2d page 881. See also United States v. Medlin (6th Cir.1965), 353 F.2d 789.
The remedies in publicity cases are change of venue, continuance, and careful selection of a jury.
The several cases considering state or federal initiated publicity, as the case may be, do not support appellant's contentions, nor has he cited any which do. He suggests that a fair trial could never have been under the circumstances. The cases dispute such a contention.
Alternatively, he...
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