United States v. Smith

Decision Date12 January 1962
Docket NumberCiv. No. 3275.
Citation200 F. Supp. 885
PartiesUNITED STATES ex rel. Frank BROWN, Petitioner, v. Robert G. SMITH, Warden, Vermont State Prison, Respondent.
CourtU.S. District Court — District of Vermont






Henry F. Black, White River Junction, Vt., John S. Burgess and Robert H. Gibson, Brattleboro, Vt., for petitioner.

Thomas M. Debevoise, Atty. Gen. of Vermont, Montpelier, Vt., and John Rocray, State's Atty. for Windham County, Brattleboro, Vt., for respondent.

Ralph L. Chapman, Brattleboro, Vt., Philip H. Hoff, Burlington, Vt., and Rowland Watts, New York City, for American Civil Liberties Union, amicus curiae.

TIMBERS, District Judge.*


Petitioner Frank Brown,1 a prisoner in the Vermont State Prison at Windsor, filed a petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2241,2 claiming that his conviction in the Windham (Vt.) County Court of arson causing death (a capital offense equivalent to first degree murder under Vermont law3) and his sentence of life imprisonment, violate his federal constitutional rights.

The Court holds that the failure to accord petitioner a fair trial by a panel of indifferent jurors plus the denial of state appellate review, combined to deprive petitioner of his rights under the Constitution of the United States.4 Moreover, this is an extraordinary case where issuance by this federal court of a writ of habeas corpus with respect to a state prisoner and, after hearing, the ordering of his discharge, is necessary to prevent a complete miscarriage of justice.5

Accordingly, the judgment of conviction and sentence of life imprisonment, being in violation of the Constitution of the United States, are set aside as void. Petitioner is entitled to be discharged from detention pursuant to such void judgment and sentence. His discharge, however, will be delayed for a reasonable period of time to enable the State of Vermont to take petitioner before the court where the judgment was rendered for the purpose of correcting, if susceptible of correction, the defects which render discharge necessary, pursuant to the order and judgment of this Court entered this day and appended hereto.6


Petitioner filed a verified petition for writ of habeas corpus in this Court July 18, 1961. An order to show cause, entered by this Court (Honorable Ernest W. Gibson) July 20, 1961 and served on respondent the same day, ordered respondent to show cause July 27, 1961 why a writ of habeas corpus should not issue.

July 20, 1961, Judge Gibson disqualified himself from sitting on this matter. The same day, pursuant to 28 U.S.C. § 292(b), the Acting Chief Judge of the Court of Appeals for the Second Circuit designated the undersigned to sit in the District of Vermont to hear and determine this matter.7

Pursuant to such designation, a hearing was held before the undersigned in Brattleboro, with sessions July 27, August 14, 15, 16, September 12 and December 22, 1961.

The July 27 session was in the nature of a pretrial hearing, following which the Court entered an order directing, among other things, that appropriate pleadings be served and filed; that the complete record of all proceedings in the Windham County Court and the Vermont Supreme Court in the case of State of Vermont v. Frank Brown,8 be lodged with the Clerk of this Court in Brattleboro forthwith; that the hearing on this matter resume August 14 and continue in successive daily sessions until concluded; that witnesses and documents be subpoenaed accordingly; that petitioner be present at the August 14 session and at all subsequent sessions; that the first issue to be considered and ruled on at the August 14 session would be whether petitioner had exhausted his state remedies; that, in the event the Court should rule that petitioner had exhausted his state remedies, counsel should be prepared to go forward August 14 with the hearing on the merits; and that the application of the American Civil Liberties Union for leave to participate as amicus curiae be granted.9

At the August 14 session, after hearing argument by counsel, the Court made a preliminary determination that petitioner had exhausted his state remedies.10 Thereafter, the August 14, 15 and 16 sessions were devoted largely to identifying, marking in evidence and referring to exhibits, including the records of the state court proceedings; taking judicial notice of relevant provisions of the Vermont Constitution and statutes; and to recording stipulations of counsel in open court with respect to certain relevant details of state court practice which did not appear altogether clear to the Court upon its initial examination of the state court record (e. g. the conduct of the voir dire examination of prospective jurors and the function of "assistant judges" in the trial of a criminal case).

After the August 16 session was concluded, counsel were allowed time within which to serve and file briefs, proposed findings of fact and conclusions of law. A transcript of the hearing was prepared by the official court reporter and furnished to counsel. Oral arguments were heard September 12. The Court announced its decision in open court and entered its order and judgment December 22.


Petitioner has raised in this Court a number of federal constitutional questions, the most serious of which, and with respect to which he has exhausted his state remedies, are the following:

First. Whether the claimed failure to accord petitioner a fair trial by a panel of indifferent jurors constituted denial of due process in violation of the Fourteenth Amendment?
Second. Whether the claimed denial of state appellate review of a conviction equivalent to first degree murder which resulted in the imposition of a sentence of life imprisonment, following failure to accord a fair trial, constituted denial of due process and equal protection in violation of the Fourteenth Amendment?

As stated above, this Court holds on the record before it that both questions must be answered in the affirmative. These conclusions are based on the following findings of fact and evaluations of the facts as found.


Petitioner was indicted July 23, 195911 for having burned a building in Brattleboro December 26, 1958 as a result of which Lyman Streeter lost his life.12 The State claimed the fire was started in a ground floor drug store which was managed and controlled by petitioner and that Streeter died of asphyxiation resulting from inhaling smoke in the third floor apartment which he occupied.13

A. State's Public Disclosure of Petitioner's Alleged Criminal Record

July 27, 1959 petitioner was arraigned on this indictment in the Windham County Court. He pleaded not guilty.14

Thereupon, the Deputy Attorney General, representing the State,15 immediately moved that petitioner "be committed to Waterbury for observation and determination of his sanity".16 The court overruled the motion.17

Petitioner then moved for bail.18 In support of this motion, he called Dr. Ruml who testified that petitioner had been his patient for a year or a year and a half; that six or seven months before the hearing petitioner had suffered a coronary attack from which he recovered; that about two months before the hearing petitioner suffered an acute attack of heart failure from which he also recovered; and that in the doctor's opinion the chances of recurrence of such attacks would be less if petitioner were admitted to bail than if he were committed to jail pending trial.19

On cross examination, the Deputy Attorney General asked the doctor:20

"Q. Now, Doctor, would it make any difference in your opinion if the individual whom we are discussing, if you learned the individual whom we are discussing has been previously arrested and incarcerated on the following convictions?"

Petitioner's counsel objected on the ground that "it is highly prejudicial."21 The court asked the Deputy Attorney General, "What do you say about the element of prejudice?"22 After the Deputy Attorney General explained he was trying "to see if the doctor has all the facts regarding the background,"23 the court suggested, "Why don't you simply ask whether without skirting the element of prejudice?"24 The Deputy Attorney General then asked the doctor:25

"Q. Would it make any difference to your opinion, Doctor, if it were the fact that on thirty-six different occasions this respondent has been charged with at least one crime?"

Petitioner's counsel again objected; the court overruled the objection.26 The doctor replied, "No, I don't think it would."27 The Deputy Attorney General persistent in asking the doctor:28

"Q. It is six weeks between now and trial, about six weeks. Would it make any difference to your opinion if the respondent on at least eight different occasions spent periods of time longer than six weeks in jail?"

The doctor replied in the negative.29

On re-cross examination of the doctor, the Deputy Attorney General prefaced his opening question with this observation:30

"Q. I respect your opinions and don't appear to be nasty or sarcastic about them. In fact I am not nasty or sarcastic because I am sure they are genuine."

In argument to the court opposing the motion for bail, the Deputy Attorney General stated:31

"We could call the respondent to the stand in this proceeding but the only purpose would be to go into the part of his criminal record which I have here, just received special delivery from Boston. This is the part when he was in Boston between 1928 and 1944. And I don't want to prejudice the respondent."

The court, after deliberation, denied the motion for bail with the observation, "* * * this man is...

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