Whitty v. State of Wisconsin

• Decision Date: 30 December 1970
• Docket Number: No. 18147.,18147.
• Citation: 436 F.2d 401
• Parties: Thomas James WHITTY, Petitioner-Appellant, v. STATE OF WISCONSIN and Wilbur J. Schmidt, Secretary of Department of Health and Social Services, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

436 F.2d 401 (1970)

Thomas James WHITTY, Petitioner-Appellant, v. STATE OF WISCONSIN and Wilbur J. Schmidt, Secretary of Department of Health and Social Services, Respondents-Appellees.

No. 18147.

United States Court of Appeals, Seventh Circuit.

December 30, 1970.

Percy L. Julian, Jr., Anthony J. Theodore, Madison, Wis., Jack Greenberg, Michael Meltsner, William L. Robinson, New York City, Robert H. Friebert, Milwaukee, Wis., for petitioner-appellant.

Robert W. Warren, Atty. Gen., Jeffrey B. Bartell, William A. Platz, Asst. Attys. Gen., Madison, Wis., for respondents-appellees.

Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

KNOCH, Senior Circuit Judge.

Petitioner-Appellant, Thomas James Whitty, has appealed to this Court from denial of his petition for writ of habeas corpus in the District Court for the Eastern District of Wisconsin.

Petitioner bases his claim on alleged constitutional violations at his trial in the Circuit Court of Milwaukee County, Wisconsin, on a charge of indecent behavior with a female under the age of sixteen years. The jury found him guilty. He is presently at the Wisconsin State Prison serving an indeterminate term under the custody of the Department of Health and Social Services. His conviction was affirmed by the Supreme Court of Wisconsin, 1967, 34 Wis.2d 278, 149 N.W.2d 557, cert. den. 1968, 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155.

The Wisconsin Supreme Court agreed that Petitioner had a right to reasonable bail and without deciding whether bail at the figure initially set was or was not reasonable, condemned as improper the conditioning of a reduction in bail for him on his waiver of a preliminary hearing. The Wisconsin Supreme Court, however, concluded, as we do, that there was no showing of a reasonable possibility of prejudice arising from this error and held that this was not denial of a right so basic to fair trial that it must be conclusively presumed to be reversible error.

Petitioner agrees that there is no general constitutional right to a preliminary examination but he feels that the right is so substantial (where preliminary examinations are used) as to become constitutional in nature, drawing an analogy from Spevack v. Klein, 1967, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574, where an attorney was disbarred because he invoked his constitutional privilege against self-incrimination in a proceeding to discipline him, without regard to whether the privilege was or was not applicable to the documents he insisted on withholding. We do not recognize this analogy as valid.

Petitioner argued here, and in the Wisconsin Supreme Court, that he lost valuable by-products of a preliminary hearing by way of discovery. The evidence adduced at the trial in the State's case in chief demonstrates that Petitioner would not have been discharged for lack of evidence. See Coleman v. State of Alabama, 1970, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, where the United States Supreme Court decided that the accused was improperly denied counsel at his preliminary hearing, but remanded the cause (399 U.S. 11, 90 S.Ct. 1999) to the Alabama Court to determine in the first instance whether denial of counsel was harmless error under Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Here the Wisconsin Supreme Court has considered this issue and decided it adversely to Petitioner. Mr. Justice White's concurring opinion in Coleman noted (399 U.S. 18, 90 S.Ct. 1999) that the possibility of counsel's having detected preclusive flaws in the State's probable cause showing was for practical purposes mooted by the trial evidence. That comment is equally applicable to the case before us.

It is pure speculation to conjecture, as Petitioner does, that the State would have disclosed in such a preliminary hearing the evidence used in rebuttal on which another of Petitioner's major contentions is based.

In the course of its case in chief the prosecution adduced evidence that the victim on the day of the offense was approached by a man, whom she identified as Petitioner, who induced her to enter the basement where the offense occurred by asking her to help him find a black and white rabbit.

The defense presented a series of witnesses who testified that they had seen Petitioner elsewhere than at the scene of the crime at various times during the late afternoon and evening of the day of the offense. Testimony was elicited on cross-examination and on rebuttal concerning the addresses of the places where Petitioner was seen and in some instances their distance from the site of the offense.

Petitioner himself testified to the same effect as to his whereabouts during the period involved and denied any part in the events described by the prosecution witnesses. On cross-examination he said that he did not talk about a rabbit to anybody on that day or at any other time and specifically denied speaking to a little girl named Cynthia Regner on May 21, 1965, the day before the offense in question, or telling her that he was looking for a black and white rabbit.

Over objection of defense counsel, Cynthia Regner was allowed to testify, after other rebuttal witnesses, that a man, who she identified as Petitioner, approached her in the early evening of May 21, 1965 and asked her if she wanted to see a rabbit. She said she went into the basement with him where he knelt and put his hands on her waist, but that the vacuum cleaner her mother was using above suddenly stopped and the man ran upstairs.

The jury was cautioned by the Trial Judge that this evidence was not offered as proof of Petitioner's guilt of the offense charged and that the jury was not to consider the testimony as in anywise indicating that any offense was committed by the Petitioner on that occasion, the testimony being admitted for the limited purpose of identification because Petitioner's identification has been put in issue by the alibi witnesses.

Over objection of defense counsel, the child's mother was allowed to testify that her daughter told her of this incident that same evening. Petitioner was recalled and he denied all aspects of Cynthia Regner's testimony.

Petitioner argues that deprivation of the invaluable discovery device which a preliminary hearing affords has not been and cannot be shown harmless here as we can never ascertain what defense counsel would have gained by a preliminary hearing. For example, he points to the brief cross-examination of Cynthia Regner, which he considers indicative of the harm done by what the Wisconsin Supreme Court viewed...