Weber, In re

• Decision Date: 20 June 1974
• Docket Number: Cr. 16157
• Citation: 11 Cal.3d 703,523 P.2d 229,114 Cal.Rptr. 429
• Court: California Supreme Court
• Parties: , 523 P.2d 229 In re Jerome WEBER on Habeas Corpus. In Bank

Page 429

114 Cal.Rptr. 429

11 Cal.3d 703, 523 P.2d 229

In re Jerome WEBER on Habeas Corpus.

Cr. 16157.

Supreme Court of California,

In Bank.

June 20, 1974.

Ball, Hunt, Hart, Brown & Baerwitz, Clarence S. Hunt and Michael F. Richman, Long Beach, for petitioner.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby and Edward A. Hinz, Jr., Chief Asst. Attys. Gen., Doris H. Maier, Asst. Atty. Gen., S. Clark Moore, Russell Iungerich and Alan G. Novodor, Deputy Attys. Gen., for respondent.

McCOMB, Justice.

Petitioner, an attorney, who is serving a sentence for conviction of the crime of soliciting another to offer a bribe, in violation of section 653f of the Penal Code, petitioned this court for a writ of habeas corpus. He claimed that he had newly discovered evidence to the effect that Thomas Devins (also known as Thomas Utter), the person whom he allegedly solicited to offer a bribe, had 'framed' him; that such evidence, if credited, would undermine the entire case of the prosecution and point unerringly to his innocence; and that, accordingly, habeas corpus was an appropriate remedy. (In re Branch, 70 Cal.2d 200, 213--215, 74 Cal.Rptr. 238, 449 P.2d 174.) Under the circumstances, this court appointed a referee to determine (1) what new evidence, if any, had been discovered since petitioner's trial; (2) if there was any such evidence, whether it would, if credited, undermine the entire case of the prosecution; and (3) if there was any such evidence, whether it should be credited. After conducting an evidentiary hearing, the referee filed findings herein and concluded that petitioner had discovered no new credible evidence undermining the case presented by the prosecution at petitioner's trial.

The Attorney General, in his return to the order to show cause herein and his brief in support of the findings of the referee at the evidentiary hearing, has accurately and in great detail set forth the applicable background data and a summary of the evidence introduced at the evidentiary hearing. This court, accordingly, adopts the Attorney General's statements, which may be summarized as follows:

Testimony of Thomas Devins at Petitioner's Trial ¹

In March 1969, while Devins was under investigation by the Los Angeles District Attorney's office on suspicion of murder, he retained petitioner as his legal counsel with respect thereto. At his first meeting with petitioner, Devins paid him $2,500, and a few weeks later paid an additional fee of $1,500. He paid petitioner no further sums as fees.

The investigation against Devins was being conducted by a Mr. Burnett, of the Santa Monica branch of the district attorney's office. Petitioner indicated to Devins that he did not know 'any of the boys in the Santa Monica office' and would try to have the matter transferred to the downtown office, as that was where his 'juice' was. A week or two later, petitioner reported to Devins that he had succeeded in having the matter transferred to the main office, where he had control; that unfortunately he had not been able to have it taken from Mr. Burnett; but that Mr. Burnett's superior was one of his (petitioner's) 'boys.'

About the beginning of the second week after Devins had retained petitioner as his attorney, he first heard him use the term 'policy.' Petitioner informed Devins that it was possible to buy a 'policy' to suppress an investigation, particularly in situations where the district attorney's investigation had merely uncovered suspicious circumstances but had not as yet produced concrete evidence of a crime. Petitioner informed Devins that he would not be under any pressure to buy such a 'policy,' but that if he did so, the investigation would be stopped and the file placed in the inactive section.

At one point, after telling Devins that he was having difficulty arriving at a fee with his contacts in the district attorney's office, petitioner showed Devins an investigative report indicating what progress had been made in the investigation of Devins' activities to that date (which report ordinarily would never have been shown to anyone outside the bureau of investigation in the district attorney's office), to show Devins what kind of service his 'boys' were giving him.

Some weeks later, petitioner showed Devins the report again and said that the policy was available. He also stated, however, that although he had originally thought the 'policy' might be for just a few thousand dollars, the members of the district attorney's staff performing the service for petitioner now wanted $25,000, and petitioner felt that an additional $10,000 should be included for his own services in obtaining the 'policy,' making a total of $35,000.

After hesitating for some time, Devins finally agreed to buy the 'policy' and told petitioner he would be out of the state for about 30 days in order to raise the money. When he returned, he reported to petitioner that he had arranged to obtain the $35,000 and would have it in cash in a few days. Petitioner stated to him, 'Now, my boys there are in control and they are not flunkies, they are right at the top.' He further said that he had informed them that the money would be available at the end of the 30-day period, as agreed.

Devins made several appointments to meet petitioner and turn the money over to him in $100 bills. After the first appointment, which he failed to keep Devins telephoned the Attorney General's office and asked if that was the proper governmental agency to investigate possible blackmail involving members of the district attorney's office. Thereafter, Devins again met petitioner but still did not give him the money.

Subsequently, special agents of the Attorney General's Bureau of Criminal Identification and Investigation equipped Devins with a minature tape recorder, whose microphones were hidden from plain view beneath his clothing. Devins then made an appointment with petitioner for dinner on June 26th, 1969, at the Friars Club, where in a three-hour conversation there was further discussion of the 'policy.' When they left the club, Devins agreed to pick up the money at his home, and meet petitioner at his home a little later, but Devins did not do so. Instead, he met one of the special agents at his own home and turned over to him the tape recorder, but the special agent was unsuccessful in making the recorder play.

The following day, Devins was again equipped with a miniature tape recorder concealed on his person; and at 4:15 p.m. he went to petitioner's office, where he conversed with petitioner for about an hour and a half. The two agreed to meet again later. The special agent removed the tape recorder from Devins' person outside the building. At a meeting thereafter in the Attorney General's office it was suggested that Devins produce a sum of convince petitioner that the sum was convice petitioner that the sum was $35,000.

On June 30, 1969, Devins met some of the investigators and showed them that he had $6,700 with him. The money was counted and the serial numbers recorded. The money was placed in four envelopes in such a way as to make it appear that it was a larger sum that it actually was. ² Devins was equipped with a hidden transmitter, as well as a body tape recorder; and a receiving unit was set up in the vehicle of one of the special agents, who observed Devins enter the building in which petitioner's office was located.

While Devins was in petitioner's office, he placed the money on the desk in front of him. At one point, petitioner picked up the envelopes containing the money, walked over to a closet, and put the four envelopes of money in a coat hanging in the closet. At this time, Devins did not owe petitioner any money, and the money was not to be used to pay a fee for legal services. Later, Devins retrieved the money, and then turned the recording device and the transmitter over to the special agent waiting outside.

At a meeting at the Friars Club at 8 p.m. that same day, Devins was again equipped with a recording device and a transmitter. Petitioner told Devins that he had, while he was unaware that Devins had left with the money, telephoned his 'boys' and told them he had possession of the money and that they had then taken the necessary steps to concel the investigation. Devins had the envelopes with the money before him while he and petitioner were talking, and petitioner told him to put all the money in one larger envelope when he came to petitioner's office the following Monday. Devins left with the money, and the recorder and the transmitter were removed from his person by the agents when they met him shortly thereafter.

During the next couple of weeks, Devins made no attempt to contact petitioner. On July 23, 1969, Devins saw petitioner at his office. Again, he was equipped with a recorder and a transmitter, and the agents monitored the conversation. In accordance with instructions, Devins attempted to engage petitioner in conversations similar to the ones he had had with him on previous occasions; but each time Devins mentioned the word 'policy,' petitioner denied having any knowledge of what Devins meant. He said that their previous discussions had been only jokes and that what Devins was suggesting was quite impossible. In general, petitioner denied the content of the previous conversations. Upon leaving petitioner's office, Devins turned the recorder and the transmitter over to the special agents. ³

Summary of Evidence Adduced at the Evidentiary Hearing

The evidence by which petitioner had hoped to establish that Devins had 'framed' him by giving perjured testimony at petitioner's trial was testimony by Ronald Anderson, a cellmate of Devins' at Deuel Vocational Institution that Devins had made such an admission to him. Anderson had so stated in a declaration dated September 29, 1971. On October 14, 1971, Anderson, in a subsequent declaration allegedly prepared by Devins, repudiated the September 29 declaration; but later, in...