United States v. Johnston, Civ. No. 13687.

• Decision Date: 02 December 1955
• Docket Number: Civ. No. 13687.
• Citation: 139 F. Supp. 890
• Parties: UNITED STATES ex rel. Alfred J. ACKERMAN v. Frank C. JOHNSTON, Warden, Western State Penitentiary.
• Court: U.S. District Court — Eastern District of Pennsylvania

139 F. Supp. 890

UNITED STATES ex rel. Alfred J. ACKERMAN v. Frank C. JOHNSTON, Warden, Western State Penitentiary.

Civ. No. 13687.

United States District Court W. D. Pennsylvania.

December 2, 1955.

Marjorie H. Matson, Pittsburgh, Pa., for relator, Alfred J. Ackerman.

James F. Malone, Jr., Dist. Atty., Wendell G. Freeland, Asst. Dist. Atty., Pittsburgh, Pa., Herbert B. Cohen, Atty., Gen., Frank P. Lawley, Jr., Deputy Atty. Gen., for respondent.

MARSH, District Judge.

The relator and respondent agree to the following findings of fact, which are adopted by the court:

1. Petitioner, Alfred J. Ackerman, is a citizen of the United States and a resident of the County of Allegheny, Commonwealth of Pennsylvania in this district.

2. At the time when these proceedings were instituted, petitioner was confined to the Western State Penitentiary in the custody of F. C. Johnston, Warden, as a state prisoner.

3. Petitioner was originally committed to the Allegheny County Jail on March 4, 1955, by the Court of Quarter Sessions of Allegheny County, Pennsylvania, by virtue of a judgment rendered January 8, 1954, at Nos. 162 May Sessions, 1953; 293 March Sessions, 1953; and Nos. 165, 130, 122, 41, 53, 62 and 105 May Sessions, 1953. The sentence imposed was a fine of 6¼ cents on each case and confinement in the Allegheny County Jail for a total period of two years.

4. Subsequent to petitioner's commitment to the Allegheny County Jail, a petition for Modification of Sentence was presented to the Court of Quarter Sessions, requesting defendant Ackerman's transfer from the Allegheny County Jail to a private hospital, by reason of his physical condition. After hearing, the said court transferred petitioner to the hospital of the Western State Penitentiary, the transfer having been made under the authority of the Act of May 31, 1919, P.L. 356, 61 P.S. §§ 81, 82.

5. Following petitioner's sentence at the above numbers and terms, appeals were taken to the Superior Court of Pennsylvania. Judgment of sentence was affirmed except as to the case at No. 293 March Term, 1953, by opinion reported in Com. v. Ackerman, 176 Pa. Super. 80, 106 A.2d 886. Thereafter application was made to the Supreme Court of Pennsylvania for leave to appeal from said decision, which application was refused without opinion. Application to the United States Supreme Court for certiorari was likewise refused without opinion on February 28, 1955, 348 U.S. 951, 75 S.Ct. 438, 99 L.Ed. 743.

6. The printed record of the proceedings in the state courts was introduced in evidence in this proceeding pursuant to a stipulation by counsel for petitioner and the Assistant District Attorney waiving the requirement that the District Attorney produce certified copies of the original information and indictments upon which the prosecution was based.

7. Said record discloses that petitioner, Alfred J. Ackerman was tried in the Court of Quarter Sessions of Allegheny County, Pennsylvania, upon 80 separate indictments. A co-defendant, J. B. Bolden, was tried at the same time before the same jury on 26 separate indictments.

8. Defendant Ackerman was found guilty on 57 of said indictments and not guilty on 18. Demurrers were sustained to four of the indictments and in one case the jury failed to return a verdict and the District Attorney agreed to a nolle pros. Sentence was imposed on nine indictments and suspended upon the remaining 48 cases and defendant ordered to pay costs.

9. The 80 charges against defendant Ackerman which were consolidated for trial include the following: 30 charges of False Pretense; 8 charges of Extortion; 40 charges of Misdemeanor in Office; one charge of Conspiracy and one of Violation of the Motor Vehicle Code. Under Pennsylvania law, False Pretense is a felony. The other charges are misdemeanors.

10. Trial of the case extended from May 20th through May 29, 1953, the Commonwealth calling and recalling 108 witnesses and the defendants 22. Seventy pages of the total 1,424-page record are required for the charge of the court.

11. The 106 separate indictments against Alfred J. Ackerman and his co-defendant, grew out of approximately 37 separate fact situations which were presented to the jury by file numbers.

Discussion and Conclusions of Law.¹

This petition alleges that relator's confinement resulted from a denial of due process and that he has exhausted the remedies available in the State courts.

The petition specified the facts constituting the denial of due process, viz.:

"a. Petitioner and co-defendant were tried jointly before the same jury on 106 separate indictments, despite objection that such consolidated trial effectively destroyed the presumption of innocence, prejudiced and confused the jury, and made a fair and impartial trial impossible * * * and that the consolidated trial of fifty felony cases and sixty-six misdemeanor charges sic is not authorized by any Pennsylvania statute and is contrary to well-established procedure of the common law.

"b. Such actual prejudice had been created against your Petitioner by pervasive pre-trial publicity as to necessarily prevent a fair trial. Petitioner is prepared to offer evidence to this effect upon hearing, and further to show that the prosecuting officials themselves deliberately instigated unfavorable publicity immediately prior to trial.

"c. The manner in which the trial was conducted prejudiced your Petitioner and made a fair and impartial trial impossible."

Since these allegations must be taken as true, a rule to show cause was issued. Massey v. Moore, 1954, 348 U.S. 105, 75 S.Ct. 145, 98 L.Ed. 135; United States ex rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, 413.

The respondent moved to dismiss, averring that state remedies had not been exhausted, but on relator's representation that every federal issue had been decided by the trial court, reviewed by the Superior Court, allocatur refused by the Supreme Court of Pennsylvania and certiorari denied by the Supreme Court of the United States, a hearing was held so that the record made in the State courts could be secured for examination. Cf. United States ex rel. Darcy v. Handy, supra.

From the record submitted at the hearing, it appears that the required procedure for state review has been exhausted on the first ground set forth in the appeal from the conviction including certiorari to the Supreme Court of the United States.

As said in Brown v. Allen, 1953, 344 U.S. 443, 447, 73 S.Ct. 397, 402, 97 L.Ed. 469, "It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review with another petition for certiorari directed to this Court."

It was not so clear that the state remedies had been exhausted on the publicity question, but in order to determine this question, it was necessary to have the state record.

Likewise, to determine the consolidation question and the publicity question, if remedies were exhausted, in the light of the due process clause it was necessary to review the state record.

It is now well settled that a federal court cannot refuse to issue the writ simply because the state court had denied relief, but the federal court is required to exercise its independent judgment on the state record, Brown v. Allen, supra; United States ex rel. DeVita v. McCorkle, 3 Cir., 1954, 216 F.2d 743, and decide issues of fact relating to fundamental fairness. United States ex rel. Thompson v. Dye, 3 Cir., 1953, 208 F.2d 565.

The state record received at the hearing proved to be both voluminous and complicated. However, I have examined it, read the briefs and heard oral argument. My conclusion is that the writ must be discharged.

The Superior Court of Pennsylvania gave fair consideration to the federal question of due process raised concerning the consolidation of multiple indictments and decided it against petitioner. Our conclusion is in accord.

Although cases may arise where the consolidation of indictments against two defendants is so prejudicial as to destroy the presumption of innocence, as relator argues, and to render the trial fundamentally unfair and therefore void as being without due process, this, we think, is not such a case. It is true that a certain amount of confusion developed during the trial and post trial, but the absence of all confusion is unattainable perfection, which is not the standard.

I entertain misgivings only in consolidating for trial the conspiracy, false pretense and extortion indictments against relator and his co-defendant, with the forty common law indictments of misdemeanor in office against relator and with a number of misdemeanor in office counts against his co-defendant.²

The misdemeanor in office indictments and counts evidently grew out of the same facts as the statutory offenses of false pretense, extortion and conspiracy to defraud (see charge to jury),...