United States v. Ragen

• Decision Date: 16 March 1948
• Docket Number: No. 9429.,9429.
• Citation: 166 F.2d 976
• Parties: UNITED STATES ex rel. FEELEY v. RAGEN.
• Court: U.S. Court of Appeals — Seventh Circuit

166 F.2d 976 (1948)

UNITED STATES ex rel. FEELEY v. RAGEN.

No. 9429.

Circuit Court of Appeals, Seventh Circuit.

March 1, 1948.

Rehearing Denied March 16, 1948.

COPYRIGHT MATERIAL OMITTED

George F. Barrett, Atty. Gen., and Albert E. Hallett, Asst. Atty. Gen., both of Chicago, Ill. (William C. Wines, Raymond S. Sarnow, and James C. Murray, Asst. Attys. Gen., all of Chicago, Ill., of counsel), for appellant.

J. F. Dammann, Robert L. Hunter, C. S. Bentley Pike, and George E. Hale, all of Chicago, Ill. (Wilson & McIlvaine, Gregory, Gilruth & Hunter, of Chicago, Ill., of counsel), for appellee.

Before SPARKS and MINTON, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

The State has appealed from a judgment of the District Court which released the relator from the custody of the Warden of the Illinois State Penitentiary, who held him under a life sentence, pursuant to a conviction in the Criminal Court of Cook County, Illinois. The District Court granted a certificate of probable cause. It is admitted that the relator has exhausted his State remedies. The bases of the discharge of the relator by the District Court were first, that he was not defended by competent counsel, and secondly, that the statute under which he was convicted and sentenced, sometimes called the Habitual Criminal Act,¹ is violative of the Federal Constitution in that it denied the relator due process of law and the equal protection of the law under the Fourteenth Amendment, and it inflicted cruel and inhuman punishment.

The relator started his career of crime young in life. He had several encounters with the Juvenile Court of Cook County, the last one culminating in a fifteen-months' sentence to the St. Charles Training School for stealing money from pay station telephone boxes. Shortly after his release from the Training School he was, on June 14, 1934, convicted of armed robbery, and was sentenced by the Criminal Court of Cook County to the penitentiary for a term of one year to life. He was then almost sixteen years of age. On March 22, 1937, he was paroled.

At the May 1939 term of the Criminal Court of Cook County, it was charged by an indictment that on May 11, 1939, the relator and McNally and Norton, while armed, robbed one Kellner, who operated a stationery store in South Chicago. The indictment also contained a count for simple robbery and contained an allegation of the relator's prior conviction. Upon his conviction under this indictment he was sentenced to life imprisonment, from which he sought relief in these proceedings.

As to the first contention of the relator sustained by the District Court, namely, that he was not defended by competent counsel. The respondent has raised the question as to whether the relator is entitled to counsel in a State court criminal prosecution. We shall put that question to one side, as the record clearly shows that on his trial the relator was represented by counsel of his own choice. It has been held that the recital as to counsel shown in the court's record speaks absolute verity, in the absence of fraud. Christakos v. Hunter, Warden, 10 Cir., 161 F.2d 692, 694. There is no showing of fraud here, although it is hinted that counsel forced himself into the case without the relator's consent.

Here is what the record shows. On June 6, 1939, George B. Holmes appeared for the relator, and the Public Defender appeared for McNally and Norton. On June 13, 1939, the clerk informed the court that Holmes had entered his appearance for the relator. Thereupon, the Public Defender asked leave to withdraw his appearance for the relator, which was granted. Holmes then asked for a two or three weeks' continuance. This colloquy took place:

"Clerk: June 28th or June 27th.

"Mr. Grossman (Assistant Public Defender): Is that all right with you?

"Defendant Feeley (Relator): I want to talk to my attorney first. I would like to speak to him you know."

The case was then set for June 27, on which date the record shows Holmes appeared for the relator. The question of waiving a jury came up.

"Holmes: My client will tell me in a minute or two whether he will waive a jury or not. I want to talk to him right now, if I may.

* * * * * *

"The Clerk: * * * Does Feeley (relator) waive a jury?

"Defendant Feeley: No. I want a jury.

"The Court: All right, get a jury.

"Holmes: My client wants a jury. What do you say, Feeley, do you want a jury?

"Defendant Feeley: Yes."

McNally and Norton then entered pleas of guilty, but Feeley went to trial with Holmes appearing for him. The State's Attorney made his opening statement. Holmes declined to make an opening statement. From then on Holmes continued to represent the relator, and no objection was ever raised thereto during all the time preliminary to the trial and all through the trial. The assumption that Holmes forced himself into the case against the relator's wishes is not borne out by the record. Since the relator states that Holmes was never paid anything, it seems strange indeed that Holmes would enter the case and stay in without pay if some one had not solicited him to do so. Certainly, there is nothing to show Holmes' representation was objected to. So the relator entered upon and went through the trial with counsel of his own choice.

We now find the District Court trying the competency of Holmes as counsel. Holmes is dead. So is the judge who tried the case. Seven years after the trial, the relator says his counsel is incompetent. Who was Holmes? He graduated in law at Union College in 1890. In the same year he was admitted to practice in Illinois and practiced until 1919, when he was elected a Municipal Judge of Chicago, on which bench he continued to serve with distinction until 1932. He filled a vacancy on this court for a few months in 1934. At the time of the trial he was about seventy-one years of age. To establish his incompetency as the relator's counsel in 1939, the court admitted over the respondent's objection a circular sent out to its members in 1936 by the Chicago Bar Association in which the Association refused to endorse Judge Holmes as a candidate for Municipal Judge, reciting his education, experience, and exceptional record as judge and concluding: "With sincere regret we find that his advancing years have placed such limitations on his capacity for judicial work that he is not now qualified for the office." We do not think that this bulletin was competent to prove anything. If it had any probative value at all, it was a warm approval of Judge Holmes' education, experience, and judicial record and said nothing detrimental about him except that his age, in the opinion of the authors of the circular, placed limitations upon his capacity for judicial work. That circular, had it been competent, would not prove or tend to prove Judge Holmes' incompetency to act as an attorney.

Then the testimony of a criminal lawyer of the Chicago Bar who had known Judge Holmes and was acquainted with his physical and mental abilities from 1936 to 1939 was introduced. He expressed the opinion that Judge Holmes was incapable of conducting an important criminal trial. However, he never saw Judge Holmes in the courtroom in the defense of the relator; he knew nothing of the manner in which the case was conducted. He had no trials with or business contacts with Judge Holmes. He based his opinion upon his casual observance of Judge Holmes as he saw him about the Criminal Court building and while they were both candidates for judge in 1936. The substantiality of such opinion evidence is as open to us to evaluate as it was to the District Court. California Fruit Growers Exchange v. Sunkist Baking Co., etc., 166 F.2d 971. The most that can be said for this opinion evidence is that it had no probative value. Dayton P. & L. Co. v. Comm., 292 U.S. 299, 300, 54 S. Ct. 647, 78 L.Ed. 1267.

The next item of evidence as to Judge Holmes' competency was a transcript of the evidence heard in the trial in which Judge Holmes defended the relator. The District Court was hypercritical of some of the actions and omissions of judge Holmes in the conduct of the trial. We have read the transcript carefully, and with all due respect to the District Court, we are unable to agree with it that the transcript of that trial shows incompetency of Judge Holmes as counsel. Looking upon it in cold print nine years after the event, we cannot say that some of the actions or omissions of Judge Holmes could not be criticized. But we do say that the record does not begin to indicate that degree of incompetency of defense counsel in the conduct of a trial that amounted to no defense; that the trial was such a sham and a mockery that it amounted to a denial of due process in that the relator had in reality no counsel. Where the relator appeared before the bar with counsel of his own choice, a member of the bar in good standing and of long experience and presumed to be competent, whose incompetency to act as counsel has not been shown by any probative evidence in this record, we think that the Criminal Court of Cook County had jurisdiction and never lost it by some mistakes counsel, on a hypercritical view of the printed record nine years later, may seem to have made.

We are not deciding whether the Federal Constitution requires counsel in a non-capital case tried in a State jurisdiction. See Foster et al. v. Illinois, 332 U.S. 134, 67 S.Ct. 1716; Betts v. Brady, Warden, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Assuming that the Federal Constitution requires counsel in a State case of this kind, the relator had counsel, as we have pointed out. Whenever the court in good faith appoints or accepts the appearance of a member of the bar in good standing to represent a defendant, the presumption is that such counsel is competent. Otherwise, he would not be in good standing at the bar and accepted by the court. The constitutional requirements have been met as to the necessity for counsel...