Tucker v. Howard

• Decision Date: 26 October 1949
• Docket Number: No. 9818.,9818.
• Citation: 177 F.2d 494
• Parties: TUCKER et al. v. HOWARD, Warden.
• Court: U.S. Court of Appeals — Seventh Circuit

177 F.2d 494 (1949)

TUCKER et al. v. HOWARD, Warden.

No. 9818.

United States Court of Appeals Seventh Circuit.

October 26, 1949.

Felix Visk, Chicago, Ill., for appellants.

J. Emmett McManamon, Attorney General, Merl M. Wall, Deputy Attorney General, Charles F. O'Connor, Deputy Attorney General, for appellee.

Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.

DUFFY, Circuit Judge.

This is a combined appeal from orders of the district court denying petitions for writs of habeas corpus. The district court issued a certificate of probable cause. Petitioners are presently confined in the Indiana State Prison at Michigan City, Indiana, pursuant to judgment of conviction and sentence rendered against each of them by the Superior Court of Grant County, Indiana. Petitioners were charged with burglarizing the building of a hunting and fishing club near Marion, Indiana, and with taking goods of sufficient value to constitute grand larceny. Each petitioner received a sentence of from two to five years on the burglary charge, and from one to ten years on the charge of grand larceny.

Petitioners claim they were denied due process of law required by the XIV Amendment to the Constitution of the United States. They assert the well established principle of law that due process under the XIV Amendment requires that all persons charged with crime shall be entitled to counsel where the circumstances are such that the defendant could not present an adequate defense without the aid of counsel. Avery v. Alabama, 308 U.S. 444, 445, 60 S.Ct. 321, 84 L.Ed. 377; Foster et al. v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L. Ed. 1955; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986. The only denial of due proces here complained of was the lack of adequate legal counsel.

Lack of counsel in and of itself does not constitute a violation of the due process clause, but such a deficiency under conditions which render the advice of adequate legal counsel necessary to the conduct of a fair hearing is such a violation. Foster v. Illinois, supra; Bute v. Illinois, supra. We shall, therefore, examine the circumstances surrounding the pleas of guilty entered by these petitioners.

In the act of making the arrest of petitioner Tucker, deputy sheriff Smith shot and killed deputy sheriff Williams, who was assisting him. Smith was an ex-convict who had known and quarreled with Tucker when both had been confined earlier in an Indiana penal institution. Tucker was in no way responsible for the death of deputy sheriff Williams, except that his arrest was the occasion of the unfortunate mishap. Petitioners claim that this shooting created a great public furor, and that as a result the police authorities of Grant County determined to convict the petitioners as speedily and with as little formality as possible.

Shipley had been arrested several days prior to Tucker's arrest. While awaiting hearing, both were subjected to repeated questioning by the police authorities. Tucker testified he was permitted to see no one until he had signed a statement. He further testified he was threatened with prosecution as an habitual criminal if he did not confess. And Shipley testified he was led to believe, through conversation with jail attendants and because he heard a woman screaming in another part of the jail, that his mother was being held in jail and would be so held until he signed a statement. There was additional evidence that Shipley's mother was in fact confined in jail without charge.

The arraignment hearing before Judge Oren W. Dickey was held about a week after the arrest of petitioners. Tucker had employed Ralph Pack, an attorney, to represent him, and they had two conferences at the jail prior to the hearing. Tucker testified that after the second conference, Attorney Pack told him he could not help him, and charged him a fee of $5 for the two conferences. Shortly before the court hearing Attorney Charles Garrison attempted to interview petitioner Shipley. Garrison had been employed by a Mrs. Liestenfeltz, who was a friend of Shipley. Although the sheriff at first demurred, a conference was permitted, but Shipley told Garrison he did not want his services. At the habeas corpus hearing in the district court, Shipley testified he had done this because the sheriff had threatened to re-arrest his mother, and that he also had been threatened with prosecution as an habitual criminal.

At the arraignment hearing Judge Dickey asked petitioner Shipley if he desired counsel, and upon being advised in the affirmative appointed Attorney Ralph Pack to represent him. It was the judge's understanding that Pack had been employed by Tucker to represent him, and that he was continuing in that capacity. Attorney Pack accepted his appointment. At the habeas corpus hearing a sharp conflict as to what occurred next marks the testimony, but at any rate the defendants each entered a plea of guilty at the arraignment, after the charges had been read to them. At the habeas corpus hearing each testified he entered a guilty plea because of his previous confession and the statement he...