United States ex rel. Kirk v. Petrelli

• Decision Date: 30 September 1971
• Docket Number: No. 71 C 1329.,71 C 1329.
• Citation: 331 F. Supp. 792
• Parties: UNITED STATES of America ex rel. Clarence KIRK, Petitioner, v. John J. PETRELLI, Warden, Illinois State Penitentiary, and Theodore Fields, Chairman, State of Illinois Pardon and Parole Board, Respondents.
• Court: U.S. District Court — Northern District of Illinois

331 F. Supp. 792

UNITED STATES of America ex rel. Clarence KIRK, Petitioner, v. John J. PETRELLI, Warden, Illinois State Penitentiary and Theodore Fields, Chairman, State of Illinois Pardon and Parole Board, Respondents.

No. 71 C 1329.

United States District Court, N. D. Illinois, E. D.

September 30, 1971.

Michael F. Borun, Chicago, Ill., for petitioner.

William J. Scott, Atty. Gen. of Ill., Warren K. Smoot, Asst. Atty. Gen., Chicago, Ill., for respondents.

MEMORANDUM OPINION

WILL, District Judge.

Petitioner is seeking habeas corpus relief under Section 2254 of Title 28 of the United States Code. He is presently on parole from the Illinois State Penitentiary at Pontiac, Illinois, where he had been serving a fifteen-to-thirty year sentence imposed on December 13, 1962, by the Circuit Court of Cook County, Chicago, after he was found guilty by a jury of the offense of murder. The conviction was affirmed by the Supreme Court of Illinois on December 1, 1966, where the same arguments advanced by the petitioner in this action were rejected. People v. Kirk, 36 Ill.2d 292, 222 N.E.2d 498 (1966). The petitioner next sought relief under the Illinois Post Conviction Act where the action was dismissed even though the petitioner sought to withdraw the petition on the ground that the decision of the Supreme Court made the issues res judicata in the state courts. An appeal from this dismissal is now pending in the Illinois Supreme Court.

Petitioner claims that certain statements made in the closing argument of the prosecutor to the jury were so inflammatory and prejudicial as to deprive him of a fair trial as guaranteed by the Fourteenth Amendment. We reach the merits of his claim and deny his petition.

At the outset, a question of great significance to the viability of the federal system must be dealt with. Are there any circumstances under which a state prosecutor's closing argument, albeit highly prejudicial and inflammatory, can deprive a defendant in a state case of fundamental rights guaranteed by the federal Constitution? A negative response would answer the question for all prospective petitioners regardless of the unfairness that might stem from a highly improper and prejudicial closing statement. On the other hand, an affirmative response might require a federal court to sit as a reviewing court of all trial errors which are generally considered to be strictly "state" questions, asking itself that most nebulous of questions —did this error, if error it be, deprive the petitioner of a fair trial?

Either categorical answer seems unacceptable. There may be a situation where the closing statement of the prosecutor is so prejudicial that it does indeed deprive the defendant of a fair trial. Is such a defendant to be left without a federal remedy? Does our system of federalism require that the federal government be strictly limited in its power to overturn decisions, even though outrageous, made in areas that have been left to the states by the Constitution? Reviewing errors to see whether or not the trial was "fundamentally fair," it can be urged, breaks down the distinction between state and federal courts.

Unaided as we are by a specific ruling either by the Supreme Court or by this Circuit, conflicting decisions of other circuits and districts must be examined to see if they provide any compelling logic. The two Circuit decisions that can be found ruling specifically on whether statements by a prosecutor to the jury involve a federal constitutional question are conflicting. In Setser v. Welch, 159 F.2d 703 (4th Cir. per curiam 1947), cert. denied 331 U.S. 840, 67 S.Ct. 1510, 91 L.Ed. 1851, it was held that the allegedly prejudicial language used by a prosecutor (there a United States Attorney) in an address to the jury is not a question that can be raised by habeas corpus. In Jackson v. California, 336 F.2d 521 (9th Cir. 1964), on the other hand, the court made a determination of whether the allegedly improper remarks of a state prosecutor did deprive the petitioner of a fair trial after acknowledging the concept that federal courts should not sit as reviewing courts of their state counterparts. In United States ex rel. Chase v. Rundle, 266 F.Supp. 487 (M.D.Pa.1967), the court stated that "absent substantial prejudice the remarks of a prosecuting attorney in his opening statement cannot be raised by habeas corpus," and then went on to determine whether there had been "substantial prejudice."

As with most difficult legal questions, the easiest way is to follow the traditional path of a general rule with exceptions. The general rule is that federal habeas corpus is not a proper proceeding in which to attack errors that are made at a state trial. Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915). However, if these errors are so grievous as to constitute a denial of fundamental constitutional rights, then habeas corpus may be appropriate. Sampsell v. California, 191 F.2d 721 (9th Cir. 1951), cert. denied, 342 U.S. 929, 72 S.Ct. 369, 96 L.Ed. 692 (1952); Jackson v. California, supra; United States ex rel. Chase v. Rundle, supra.

Accordingly, we accept the procedure employed by the Ninth Circuit, and examine the alleged errors to ascertain whether or not they made the proceeding so devoid of fairness that it deprived the petitioner of due process of law. In making such an analysis, alleged errors in the trial that do not relate to some specific Constitutional right in the first eight Amendments which has been "incorporated" into the Fourteenth Amendment must be so outrageous and so prejudicial as clearly to constitute a denial of due process.

In the instant petition, five statements made by the State's Attorney in his closing argument to the jury are singled out as being inflammatory and prejudicial:

1. "What you have heard is an insult to your intelligence, and I think you realize that. I am ashamed to see twelve jurors in this box have to walk by this witness stand where so much filth, so many lies, obvious lies, have been spoken. I am ashamed to see that men that I have looked up to, professional men who I thought and I feel are someone I should respect for the fact that they are professional men, have taken the stand and, I don't think they were mistaken, I think they tried to hoodwink this jury." R-1926

2. "I'm ashamed to see these two young defense attorneys taking the doctrine that Adolph Hitler, a long time ago, told the people of Germany. He said if you told enough lies and enough people told lies, you'd get to believe these lies." R-1927

3. "You heard many

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