United States ex rel. Means v. Solem

• Decision Date: 29 September 1978
• Docket Number: Civ. No. 78-4075.
• Citation: 457 F. Supp. 1256
• Parties: UNITED STATES of America ex rel. Russell MEANS, Petitioner, v. Herman SOLEM, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Respondent.
• Court: U.S. District Court — District of South Dakota

457 F. Supp. 1256

UNITED STATES of America ex rel. Russell MEANS, Petitioner, v. Herman SOLEM, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Respondent.

Civ. No. 78-4075.

United States District Court, D. South Dakota, S. D.

September 29, 1978.

COPYRIGHT MATERIAL OMITTED

William Kunstler, New York City, Kenneth E. Tilsen, St. Paul, Minn. and Sidney B. Strange, Sioux Falls, S. D., for petitioner.

William J. Janklow, Atty. Gen., Pierre, S. D., Gary Pashby, and Thomas H. Muilenburg, Sioux Falls, S. D., for respondent.

MEMORANDUM DECISION

NICHOL, Chief Judge.

The petitioner, Russell Means, seeks a writ of Habeas Corpus claiming that his confinement in the South Dakota State Penitentiary is based upon an unlawful conviction obtained in state court. Petitioner raises many claims. His first claim is that he was forced to surrender his absolute right to trial by jury as guaranteed by the 6th and 14th Amendments to the United States Constitution because of (a) the combination of alleged mammoth prejudicial pretrial publicity concerning the petitioner and/or the American Indian Movement, (b) the trial court's alleged refusal to permit him to demonstrate the bitter hostility against him through the jury pool area; and (c) the trial judge's responses to defense challenges for cause.

Petitioner also raises the issue of the constitutionality of South Dakota Codified Laws 22-10-1 and 22-10-4, particularly as they were applied to him. Petitioner claims that the two statutes (the first defining riot and the second specifying certain "riotous assembly" conduct) on their face violate the constitution. Further, he alleges that as applied to his conduct, the statutes clearly violate his First Amendment rights.

Petitioner claims that the state trial judge's refusal to permit Mr. Strange, one defense attorney, to resign or be discharged by petitioner so as to be qualified as a defense witness denied petitioner the effective assistance of counsel guaranteed by the 6th and 14th Amendments to the United States Constitution.

Petitioner further asserts that the failure of the trial court judge, sitting without a jury, to make written findings of fact and conclusions of law amounted to a lack of consideration of petitioner's proffered defenses of self-defense and defense of others. Petitioner alleges that in this regard, he was denied due process of the law.

Petitioner finally claims that the totality of the circumstances of the entire proceedings (running almost 50 volumes of transcripts and supplemented by seven file drawers of exhibits) indicate that he was denied his due process rights and that habeas corpus relief is necessary. See Zemina v. Solem, 438 F.Supp. 455 (D.S.D.1977), aff'd 573 F.2d 1027 (8th Cir. 1978).

After the state trial court's judgment, the petitioner raised these issues, among others, in extensive briefs on appeal to the South Dakota Supreme Court. That appeal was unsuccessful as his conviction was unanimously affirmed. State v. Means, S.D., 268 N.W.2d 802 (1978). A petition for rehearing before the state Supreme Court was filed on July 7, 1978, and denied on July 26, 1978. An application for writ of habeas corpus was filed before this Court on July 27, 1978. This application was supplemented by an addendum on August 3, 1978, and a hearing was held before this Court on August 10, 1978. The parties introduced the records before this Court, as well as the transcripts, exhibits and briefs to the Supreme Court. An opportunity to present new evidence was provided, but none was introduced. See generally Brewer v. Williams, 430 U.S. 387, 396, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Following the hearing, both parties had an opportunity to submit briefs.

FACTS

The entire record presented with this petition shows that the petitioner was tried before a state trial judge on two charges and found guilty of the crime of Rioting to Obstruct (S.D.C.L. 22-10-4).¹ The petitioner's alleged criminal involvement was the product of a disturbance involving members of the Tactical Squad of the Sioux Falls, South Dakota, Police Department and certain trial spectators and other parties. The disturbance occurred in the Minnehaha County Courthouse in Sioux Falls, South Dakota, on April 30, 1974. A state circuit judge was presiding over the trial of five defendants charged with an alleged riot in 1973 in Custer, South Dakota.

On April 26, 1974, a number of spectators in the courtroom refused to rise for the state trial judge. The state judge then ordered the spectators removed. The sheriff and other officers physically carried out some of the spectators that refused to rise. The judge then determined that certain security measures were needed. The security measures included allowing only 20 spectators in the courtroom, locking certain exterior doors, requiring passes for admittance to the courtroom, and requiring those with passes to be pat searched and passed through a metal detector.

Testimony of one state witness, Ken Dahl, established that petitioner met with the defendants charged in the 1973 Custer riot, their legal staff and other supporters on April 29, 1974. The meetings were held in the Van Brunt Building in downtown Sioux Falls. The purpose of the meetings was to determine what the supporters would do when court convened on April 30, 1974, based upon what had transpired on April 26. Dahl's testimony affirmed that he attended the meetings, which were primarily conducted by the petitioner. Petitioner told the 75 to 100 people present that there hadn't been enough publicity and action should be taken to create a mistrial. Petitioner stated that there would be some priests in the courtroom and that they'd be good witnesses for the defense. (Trial Transcript 346) Petitioner also wanted the "toughest warriors" to volunteer under the security pass system, but those who were not chosen were told of other activities planned for outside the courthouse. These activities would include throwing debris at the courthouse. (349) The "warriors" who were to enter the courtroom under the security pass system were told not to stand for the state trial judge who was conducting the Custer riot trials when court convened on April 30. (348) All at the meeting were told that when a window was broken in the courtroom, after the Tac Squad came in and the fight was to begin, the activity outside the courthouse was also to begin. (349)

The next morning, 20 potential spectators (including the petitioner) were processed through the security system. They sat in the front two rows of the spectator section in the courtroom. The petitioner was still being processed through the security system when the judge entered the courtroom and the bailiff announced: "The court, please rise."

The spectators in the front two rows refused to rise, so the judge returned to his chambers and told the bailiff to clear the courtroom. After consultation with the sheriff, at 9:30 a. m. the judge stated, "It will be the order of this court those who do not stand in this matter will be removed from the courtroom and kept out. The rest of you may sit down. Thank you." The sheriff and the bailiff ordered the first two rows of spectators to leave the courtroom. They silently refused. A Sioux Falls police captain stated that he requested the presence of the Tactical Squad at 10:20 a. m. because he anticipated trouble. He had been advised that people outside the courthouse had been gathering rocks, pieces of asphalt, pop bottles, wet towels, and other debris, alerting him to the possibility of a disturbance in the courtroom. The Tactical Squad arrived in approximately 30 minutes, forming up in the hallway outside the courtroom. Though the trial judge was urged to rescind his order to stand, he refused and asked the petitioner to use his influence to convince those persons who would not stand to leave peacefully. Petitioner relayed the judge's message, but the spectators again refused. The petitioner then stated that he must sit with his people and sat on the end of the third row of benches. Thereafter, the Minnehaha County Sheriff directed the police captain to remove the spectators and the police captain relayed the message to the Tactical Squad, apparently ordering them to clear the courtroom.

The Tactical Squad entered the courtroom with riot batons at the ready position, and "all hell broke loose". Though controverted, it was the testimony of a police officer and prosecution witness Dahl that the petitioner struck the officer with his fist, preventing the officer from moving past him. Petitioner then, according to this testimony, held the officer while another person struck him, shouting "The stick, get the stick." The riot baton was removed from the officer's hands and, as he was losing control, he struck the petitioner in the face. The officer fell to the floor after other blows from an unidentified assailant. It appeared that the petitioner's action preceded any other courtroom commotion, but that immediately after the petitioner struck the policeman, the courtroom exploded. (360)²

PROCEDURAL HISTORY

The state trial judge (not the judge conducting the Custer trials), after reviewing the evidence in petitioner's case, returned a verdict on December 15, 1975, finding petitioner not guilty of injury to a public building and guilty of rioting to obstruct. The trial court scheduled sentencing for December 31, 1975. On that day, the petitioner's motions for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial were denied. Petitioner was sentenced to serve a term of four years in the South Dakota State Penitentiary. On December 31, 1975, petitioner perfected a timely appeal to the South Dakota Supreme Court. The state supreme court unanimously affirmed the conviction on June 20, 1978, and later denied a petition for rehearing.

The petitioner did not seek post-conviction review in the...