Criminal Power

by
 Samuel S. Wilson¹

Like most federal courts, the Sixth Circuit had few historically significant criminal cases until around 1960 because most criminal law was made in the state courts. One early case was Tennessee v. Davis.² James M. Davis was a United States Deputy Collector of Internal Revenue. His duties included seeking out and destroying stills used for the manufacture of moonshine whiskey. In 1878 he was pursuing this duty in Grundy County, Tennessee, where apparently his activity was not altogether welcome. In fact, his affidavit stated, he "was assaulted and fired upon by a number of armed men, and in defense of his life returned the fire." His return fire killed one J. B. Haynes, whose last name, perhaps coincidentally, was the same as the Grundy County Prosecutor E. M. Haynes. Later a state grand jury in Grundy County indicted Davis for first degree murder.

Davis then applied to the Circuit Court of the United States for the Middle District of Tennessee for removal to that court. He relied upon the federal statute allowing removal of state criminal cases where the defendant is a federal officer who alleges that the act was committed in carrying out his federal duties.³ The key question was constitutional. Did Article III's provision on cases "arising under" federal law empower Congress to enact a statute for removal of this kind of case?

The Circuit Court divided and certified the case to the United States Supreme Court. That Court held 7-2 that the statute was constitutional. The dissenting opinion points up the problem best for modern readers. Its author, Justice Nathan Clifford, noted that his case arose under state criminal law, not federal law. Thus, he wrote, federal courts had no jurisdiction of criminal cases unless there was a federal statute making the act a crime.⁴

The majority, however, concluded otherwise. Writing for the Court, Justice William Strong stressed the federal element present in Davis' defense, that he was acting pursuant to federal law when the homicide occurred. Justice Strong relied heavily on Osborn v. Bank of the United States.⁵

Thus Davis and Osborn are really companion cases in federal jurisdiction. Both are regarded as landmarks for a generous interpretation of the constitutional phrase "arising under'' and for the broader principle that Congress can use the federal courts to shelter federal government operations from state court jurisdiction.⁶

A number of notable criminal cases arose in the Sixth Circuit some 80 years after Davis. Some arose because the Supreme Court made many questions of criminal procedure into constitutional questions and, at the same time, allowed these issues arising in state criminal cases to be relitigated in the federal courts through post-conviction remedies.⁷ Some arose because of the increased use by law enforcement officers of electronic devices to intercept communications.

Of the latter group U.S. v. U.S. District Court for the Eastern District of Michigan⁸ is of especial interest. The case involved the Government's petition to the Sixth Circuit for a writ of mandamus directed to the District Court.⁹ The application for the writ arose from a criminal case pending in the district court. Three defendants in that case were charged with conspiring to destroy government property. One of the three, Lawrence Robert "Pun" Plamondon, was charged with dynamiting an office of the Central Intelligence Agency in Ann Arbor, Michigan, on September 29, 1968. This date, of course, was during a period of disruptive, often violent, protests against United States policy in Vietnam.

For some time before the bombing federal agents had been recording telephone conversations in which Plamondon had been involved. He had not, however, been among the persons in whom the federal agents had been primarily interested. John N. Mitchell, then the United States Attorney General, had specifically authorized the wire taps. However, no judicial authorization had been given. In his affidavit, Mr. Mitchell said the taps were "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government."

On motion of the defendant Plamondon, the District Court ordered the wiretap material turned over to him. The Government then sought a writ of mandamus from the Court of Appeals. By a 2-1 decision the Court of Appeals denied the writ. In the majority opinion Judge George C. Edwards, for himself and Chief Judge Harry Phillips, held the wiretaps illegal. He rejected the principal government contention that they were within the inherent powers of the President to protect national security.¹⁰ Such a power might exist if foreign powers were involved, he wrote, but not as to purely domestic matters. Judge Paul C. Weick dissented. He accepted the government's position on inherent powers even in domestic security cases . The Supreme Court affirmed largely on the same basis as the Court of Appeals.¹¹

The rosters of opposing counsel included two newsworthy names. William M. Kunstler argued the case for the respondent in the Sixth Circuit and was on the brief in the Supreme Court. Robert C. Mardian, then an Assistant Attorney General, was on the brief for the Government in the Sixth Circuit and argued the case in the Supreme Court. William T. Gossett, a former president of the American Bar Association, argued the case for Judge Damon J. Keith in the Supreme Court.

Government eavesdropping by the more traditional method of the informer presented important constitutional issues in the cases involving James Hoffa, the president of the Teamsters Union, and his associates. The first case was a criminal prosecution of Hoffa on a two-count information alleging violation of the Taft-Hartley Act.¹² The trial was held from October 22 thru December 23, 1962, in the U.S. District Court of the Middle District of Tennessee, Nashville Division. The trial ended in a hung jury.

In 1963 Hoffa and three associates were indicted on a charge of trying to tamper with the jurors¹³ in the 1962 trial. He again went to trial in U.S. District Court in Nashville.¹⁴ The case was later transferred to Chattanooga. This time Hoffa was convicted. He appealed this conviction to the Sixth Circuit. His counsel argued many issues, many of them insubstantial. Probably the most important was an attack on evidence given by a Government informer, Edward G. Partin.

Partin was a Teamsters Union officer in Baton Rouge, La., and himself under federal indictment for embezzling union funds. During the 1962 trial Partin came to Nashville and joined the Hoffa entourage. He also agreed to act as a Government informer. At the jury-tampering trial, he testified as to numerous statements by Hoffa on plans to bribe the jurors at the earlier trial. On appeal, Hoffa claimed that the Government had "planted" Partin within the Hoffa group. Thereby, the argument ran, he was deprived of rights to counsel and to be protected against unreasonable search and seizure and self-incrimination. The right-to-counsel argument was based on evidence that Partin had been in Hoffa's hotel room when Hoffa's attorneys were also present.

In a unanimous opinion, Chief Judge Weick, writing for himself and Judges Lester L. Cecil and Shackelford Miller, Jr., rejected these arguments.¹⁵ He noted that Partin had not been present during any important strategy discussions between Hoffa and his attorneys. Moreover, such discussions as he did overhear related to a prior case and should not affect a conviction in a subsequent case. On the search-and-seizure and self-incrimination issues, Judge Weick pointed out that the evidence showed that Partin was present at Hoffa's invitation. The Supreme Court reached the same result for similar reasons.¹⁶ Justice Potter Stewart wrote the opinion of the Court.

Meanwhile, back in Nashville, one of Hoffa's attorneys, Z. T. Osborn, Jr., was indicted for trying to tamper with a juror in Hoffa's trial for jury tampering. The Government charged that Osborn directed a Nashville police officer, Vick, to try to bribe one of the jurors for $10,000. In the 1962 Hoffa trial on Taft-Hartley charges, Osborn had hired Vick to investigate jurors. Vick reported his bribery conversations to the FBI which in turn passed on the report to District Judges William E. Miller and Frank Gray, Jr. They were skeptical and authorized Vick to conceal on his person a recording device to either confirm or refute Vick's story. Vick did meet with Osborn carrying a concealed recorder. The recording corroborated Vick's statement and later used for that purpose at Osborn's trial.

Osborn was convicted and he appealed to the Sixth Circuit where the judgment was affirmed.¹⁷ Judge Edwards wrote the opinion in which Judges Shackelford Miller Jr. and Clifford O'Sullivan joined. Although Osborn conceded the authenticity of the recording, he challenged its admissibility largely on Fourth Amendment grounds. He also claimed entrapment and that his bribery scheme had not developed far enough to be a violation of the statute.

Judge Edwards gave short shrift to the admissibility point, indicating that the only substantial potential issue was authenticity which Osborn conceded. He also rejected the entrapment argument by pointing out that Vick only gave Osborn the opportunity to engage in illegal conduct; he did not induce him to do so. Finally, Judge Edwards held that the statutory term "endeavor" encompassed Osborn's conduct.

On the same day of the decision in Hoffa, December 12, 1966, the Supreme Court also affirmed Osborn. Again the opinion was by Justice Stewart and again it largely followed the rationale of the Court of Appeals. Chief Justice Earl Warren dissented in Hoffa. He concluded that under the Court's supervisory power over the federal courts, it should vacate a conviction based on the testimony of a witness so "unsavory" as Partin.¹⁸

Justices Tom C. Clark and William O. Douglas also dissented in Hoffa. They thought the certiorari had been improvidently granted. Because the trial court had found that Hoffa invited Partin into his entourage, they concluded, the facts did not really raise basic issues on informers. Douglas also dissented in Osborn. Here he urged an absolute Fourth Amendment rule against obtaining evidence of speech by surreptitious means--even where, as in Osborn, a judge or judges had approved in advance the means used.

The Hoffa jury tampering trial also involved a publicity issue which was relatively minor, but the Sixth Circuit handled what is still probably the leading case on this issue in Sheppard v. Maxwell.¹⁹ The case arose in an action for a writ of habeas corpus. The petitioner was Dr. Samuel Sheppard, then a prisoner in the Ohio penitentiary. Sheppard, a Cleveland osteopath, had been convicted in an Ohio court of murdering his wife, Marilyn, in 1954. The investigation and later the trial received fantastic publicity.²⁰

During the investigation, the Cleveland Press campaigned vigorously for Sheppard's arrest. The newspaper went beyond extensive and somewhat slanted reporting. It published front page editorials demanding that police "grill" Dr. Sheppard. "Why isn't Sam Sheppard in jail?" asked one headline.²¹ This approach continued during the trial. Perhaps the most flagrant example was a story which appeared on November 24, 1954, about a month after the trial began. The story said Mrs. Sheppard had described her husband as a "Dr. Jekyll and Mr. Hyde" and that a "bombshell" witness would testify as to a display of the defendant's temper.²² No such evidence was ever offered.²³

The court room itself was jammed with reporters.²⁴ One extra press table was set up inside the bar. It extended across the room within a few feet of the jury at one point and of defendant and his counsel at another.²⁵ The reporters' comings and going made it difficult to hear the proceedings.²⁶ When the judge entered the court room on the first day of trial, he found a photographer seated in his chair.²⁷

The trial began on October 18, 1954. It went to the jury on December 17. On December 21, the jury found Dr. Sheppard guilty of second-degree murder. He was sentenced to life imprisonment. This judgment was affirmed on direct appeal by the Ohio Court of Appeals²⁸ and the Ohio Supreme Court.²⁹ The United States Supreme Court denied a petition for certiorari.³⁰

In 1963, Sheppard petitioned the U.S. District Court for a writ of habeas corpus. The respondent was E. L. Maxwell, warden of the Ohio Penitentiary. Sheppard's counsel was F. Lee Bailey, then at the threshold of his national career as a criminal defense attorney. In the Court of Appeals and the Supreme Court, Bailey was opposed by William B. Saxbe, then Attorney General of Ohio and later United States Senator and Attorney General of the United States.

Chief Judge Carl A. Weinman heard the case and issued the writ.³¹ He held that, because of the publicity, the impartiality of the jury was not maintained and a continuance or change of venue should have been granted. He also said that the trial judge's impartiality was questionable, that lie detector evidence was erroneously admitted, and that during deliberations the jurors were improperly permitted to have telephone conversations with outsiders.

The Sixth Circuit reversed. Writing for himself and Judge Harry Phillips, Judge Clifford O'Sullivan joined with the trial court in criticizing the journalistic antics Judge O'Sullivan concluded, however:

We are not prepared to hold that American citizens have so far forgotten their traditional heritage of "fair play" that such shabby reporting would irretrievably infect the minds of an entire metropolitan community. Our jury system cannot survive if it is now proper to presume that jurors, selected with the care taken in this case, are without the intelligence, courage and integrity the laws command that they ignore the kind of publicity here involved. (Emphasis by the Court).³²

On the claim that the trial judge was not impartial, Judge O'Sullivan pointed out that it was based on "testimony as to the uncorroborated oral statement of a deceased person."³³ Such testimony, he said, "is the weakest form of evidence." As to the issues of lie-detector evidence and unauthorized communications with jurors, he pointed out that the Ohio Supreme Court found neither to be reversible error under state law. They did not, he concluded, rise to the level of constitutional violations so as to justify Sheppard's release.

Judge George C. Edwards dissented. He disagreed with the majority of the effect of the publicity during the trial. Citing five examples,³⁴ he said that these, considered against the general background of the trial, added up to a violation of due process. He added: "Any other view would deny common sense as effectively as saying that since no single one of the 35 wounds was necessarily fatal, Marilyn Sheppard was not murdered.³⁵ When the case came up to the Supreme Court for the second time, it granted certiorari.³⁶

Relying on the Billie Sol Estes case³⁷ decided just in the previous term, the Court reversed the Court of Appeals.³⁸ Writing for an eight-man³⁹ majority, Justice Tom C. Clark held that petitioner need not show that the jurors were actually prejudiced by the publicity. Following Judge Edwards' approach, he referred to the "totality of circumstances."⁴⁰ He was also critical of the trial judge for concluding that little could be done to protect the jurors. Clark said that Judge Blythin could have controlled what went on in the court house, could have "insulated" the witnesses from press interviews, and could have tried to control the release of material by police and counsel.⁴¹

After the Supreme Court decision, Sheppard was retried in the state court and acquitted. Sheppard has become the leading case of the effect of publicity on criminal trials. It is almost a standard citation in any opinion on the subject.⁴² Law review comment was extensive. No less than 15 case notes were published.⁴³ The case is included in most constitutional law casebooks.

Two trends in the early 1960's created the significant issue of United States ex rel Shott v. Tehan.⁴⁴ One trend was the increasing application of federal constitutional rules to state criminal proceedings. The second was the increasing availability of federal review of state criminal convictions.⁴⁵ The combination made retroactivity--the issue in Shott--of great importance. To take the Shott example, when the Supreme Court decided in 1965 that it was unconstitutional for a state prosecutor to comment on the defendant's failure to testify,⁴⁶ should a federal court grant a writ of habeas corpus in 1966 vacating Shott's 1961 conviction because the prosecutor had then so commented to the jury?

The Shott story had an unusual beginning. Edgar I. Shott was a Cincinnati attorney. He had been friends since boyhood with another Cincinnati attorney, Leslie Stickler. During the late 1950's, Stickler operated a "Ponzi" scheme. He claimed to represent unnamed real estate developers in sore need of short-term credit. Stickler offered to accept the money of various persons to loan to the developers, who were non-existent, at extremely high rates of interest. What Stickler was doing, of course, was using the money of subsequent lenders to repay prior lenders with high interest.⁴⁷ The inevitable collapse came in 1961, but not before the loans exceeded $3,300,000. Shott participated not only as a lender but also in borrowing money from others to be reloaned to Stickler.⁴⁸ Both activities brought him before the Sixth Circuit.

As a lender, he loaned Stickler more than $1,300,000. Because he stopped making loans before the collapse, he showed a $342,900 profit. Stickler's trustee in bankruptcy sued Shott on a theory of fraudulent conveyance. Judge John W. Peck then District Judge for the Southern District of Ohio, granted summary judgment for the Trustee. The Sixth Circuit affirmed.⁴⁹

In borrowing funds from others to be reloaned to Stickler, Shott also ran afoul of the Ohio ''blue-sky" laws.⁵⁰ He was convicted in Ohio Common Pleas Court of selling a "security" without a license. His conviction was affirmed without opinion by the Ohio Court of Appeals and the Ohio Supreme Court.⁵¹ During the state trial, Shott did not testify and the prosecutor commented thereon in his closing argument. Such comment was routine prosecutorial procedure, sanctioned by a provision in the Ohio Constitution.⁵²

When Shott petitioned for a writ of habeas corpus in the District Court, the case did not seem likely to make legal history. One of Shott's contentions was that the prosecutor's comments were unconstitutional, but for many years the Supreme Court had held that the states were not required to apply federal standards in according the privilege against self-incrimination⁵³ and more specifically that such comment was constitutionally proper.⁵⁴

Judge Peck, denied the writ in the District Court. But history caught up with the case on the way to the Sixth Circuit. On June 15, 1964, the day before oral argument in the Sixth Circuit, the U.S. Supreme Court decided Malloy v. Hogan,⁵⁵ holding that states must meet federal standards on the privilege against self incrimination. The Fifth Amendment privilege was thus incorporated into the Due Process clause of the Fourteenth Amendment.

Although Malloy's particular facts involved the admissibility of a confession, the Sixth Circuit considered that the principle covered prosecutorial comment and granted the writ.⁵⁶ However, the respondent successfully sought certiorari in the United States Supreme Court. Before the Shott case came up for hearing in the Supreme Court, that Court held, as the Sixth Circuit had anticipated, that prosecutorial comment on a defendant's failure to testify was indeed unconstitutional.⁵⁷

When the Supreme Court took up the Shott case, however, the Court concluded that, since Shott's original conviction had become final before either Malloy or Griffin was decided, the principal issue was really retroactivity. In an opinion by Justice Potter Stewart, the Court held that Griffin should not be retroactively applied. The chief reasons were that the question did not go to the fact-finding accuracy of the original trial⁵⁸ and the extremely large number of cases which would have had to be retried in the six states where prosecutorial comment had been standard practice.

The Supreme Court remanded the case to the Sixth Circuit to consider claims by Shott which the Court of Appeals had not found necessary to consider earlier. The principal one of these was that the Ohio securities law was unconstitutional in that it placed the burden on a defendant to prove that any security he sells comes within a statutory exemption. The court held the statute constitutional.⁵⁹

The Shott case was one of a group of cases decided by the Supreme Court on retroactivity.⁶⁰ The general test was based on the purpose of the new rule. Would that purpose be served by making it retroactive? As we have seen in Shott, the Court found that the purpose of the rule against comment on failure to testify would not be so served. The examination of purpose required the Court to reexamine carefully the jurisprudential underpinnings of their original decisions. Thus, the retroactivity cases were not only important because of their practical effect on the number of cases to be retried but also because they contain an articulation of the Court's philosophy on criminal procedure.⁶¹

Two other Sixth Circuit criminal cases should be mentioned. Although neither made new constitutional law, both were notable articulations of significant problems. The first case, U.S. v. Smith,⁶² involved the proper standard for the insanity defense. Smith was convicted of robbing a savings and loan in Ashland, Kentucky. The trial court instructed the jury on the traditional M'Naghten rule based on knowing right from wrong. The Sixth Circuit reversed, adopting an insanity defense based on the American Law Institute Model Penal Code. In the Court's opinion, Judge Edwards pointed out that the jury should return a verdict of not guilty not only when mental illness prevented the defendant from "knowing the wrongfulness of his act" but also when it rendered him "substantially incapable of conforming his conduct to the requirements of the law he is charged with violating."⁶³ The case has been cited in a number of federal cases as well as state cases in Alaska, California, Idaho, Indiana and Tennessee. It was also noted in three law reviews.⁶⁴

The second case, Beasley v. U.S.,⁶⁵ raised the issue of inadequate assistance of counsel. Beasley was convicted of armed bank robbery. His conviction was affirmed on direct appeal.⁶⁶ Then he filed a statutory motion⁶⁷ to vacate his conviction because his appointed counsel had not represented him adequately at his original trial. The trial judge denied the motion. She found that Beasley's representation had been "incompetent and ineffective"⁶⁸ but had not made the trial "a farce and a mockery shocking to the Court."

The Sixth Circuit reversed. It held that the "farce-and-mockery" standard should not be used. In his opinion for the Court, Judge Anthony J. Celebrezze wrote: "We hold that the assistance of counsel required under the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance."⁶⁹

By this decision the Sixth Circuit became the third circuit to abandon the "farce and mockery" test⁷⁰ and the second to adopt the "reasonably effective" test.⁷¹ The case has been widely cited in other federal cases and in state cases in Connecticut, Idaho, Indiana, Michigan, Ohio, Oregon and Tennessee.