249 F. Supp. 549 | S.D. Iowa | 1966
On June 30, 1965, the United States Court of Appeals for the Eighth Circuit determined that the petitioner, Edward J. Farrant, should be granted a hearing on his allegation relating to the procedure under which he was sentenced and on the question of whether he had effective assistance of counsel at the time he was sentenced.
Petitioner further alleges that he was denied the effective assistance of counsel at the time he was sentenced. On January 16,1933, the petitioner pleaded guilty to the indictment which had been returned against both him and Ray Kinney on December 29, 1932.
The Iowa law provided in 1933, as it does today, that if a defendant is convicted of murder upon his plea of guilty, the court must determine the degree of guilt by an examination of witnesses.
Petitioner was sentenced to life imprisonment on February 6, 1933. The District Court held a brief hearing prior to the pronouncement of its sentence. A transcript of that proceeding was introduced into evidence at the hearing before this Court. The only witness testifying at this proceeding was Mrs. Anna Far-rant, the petitioner’s mother. Her testimony was in no manner related to the question of the degree of murder the petitioner had committed. Since there is no evidence that any other hearing relating to this matter was ever conducted, this Court finds that the petitioner was not given a formal hearing as to the degree of murder of which he was guilty. The absence of such a hearing indicates that the petitioner was not afforded the effective assistance of counsel at the time he was sentenced. It is the respondent’s contention, however, that under the circumstances it was unnecessary to conduct a formal hearing on the degree of murder of which petitioner was guilty and that the absence of such a hearing did not deprive the petitioner of due process of law.
The first part of respondent’s contention is premised upon the fact that Judge Herrick was the presiding judge at the trial of Ray Kinney, the individual with whom the petitioner was indicted for murder.
The United States Supreme Court has held that, “[a]s applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). The punishment provided by Iowa law for first degree murder and that provided for second degree murder or manslaughter vary considerably.
It appears to be well recognized that under 28 U.S.C. § 2243 (1958) a federal district judge conducting habeas corpus proceedings is not limited to a simple remand or discharge of the prisoner seeking the writ, but may dispose of the matter as law and justice require. See, e. g., Jackson v. Denno, 378 U.S. 368, 391-396, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Dowd v. United States ex rel. Cook, 340 U.S. 206, 210,
The Court wishes to express its gratitude to attorneys Joseph Z. Marks and Norman G. Jesse for services gratuitously rendered to the petitioner and to this Court in the holding of the hearing herein and the submission of briefs.
. The petitioner, Edward J'. Farrant, was sentenced to life imprisonment in the Iowa State Penitentiary on February 6, 1933. After having his sentence commuted to ninety years on December 19, 1961, the petitioner was granted a parole in July, 1962, and was placed under the supervision of the Illinois Board of Parole. On November 4, 1962, he was sentenced by an Illinois Court to ninety days in jail for making alcoholic beverages available to minors. After serving this sentence, petitioner was returned to the Iowa State Penitentiary on February 9, 1963, for violation of the terms of his parole.
. An able and experienced attorney, Philip H. Cless, was appointed to represent the petitioner in all matters pertaining to this action; he was subsequently relieved of this appointment by the Court because of the limitations Mr. Farrant desired to place upon his attorney’s conduct of the case. Consequently, the petitioner appeared at the hearing as his own counsel. He was assisted by two members of the bar of this Court, Mr. Joseph Z. Marks and Mr. Norman G. Jesse. Evidence in this matter was taken on December 10, 13 and 16. The parties were granted additional time in which to file briefs.
. The indictment returned on December 29, 1932 was a joint indictment against both Ed J. Farrant and Bay Kinney. The significance of the fact that this was a joint indictment will be discussed at another point. The original files pertaining to this matter appear to have disappeared.
. The petitioner originally entered a plea of not guilty on December 31, 1932, to the indictment charging him with murder. Bay Kinney entered the same plea on January 3, 1933. Unlike Farrant, however, Kinney did not subsequently change his plea and was brought to trial on January 17, 1933. The jury returned a verdict of guilty on January 21 and found that Bay Kinney should be imprisoned for life.
. Although the Iowa Code defines murder as the killing of any human being with “malice aforethought, either express or implied,” Iowa Code § 690.1 (1962), the Supreme Court of Iowa has concluded that an indictment for murder charges a defendant with first degree murder, second degree murder and manslaughter. State v. Martin, 243 Iowa 1323, 1330-1331, 55 N.W.2d 258, 34 A.L.R.2d 904 (1952); Compare with State v. Woodson, 244 Iowa 1262, 59 N.W.2d 556 (1953) wherein there is some indication that a plea of guilty to second degree murder does not require a hearing as to the possibility of the crime being manslaughter.
. In 1933, the statute involved herein was embodied in Chapter 559, § 12913, Code of Iowa (1931). At the present time this section may be found in Iowa Code, § 690.4 (1962).
. See note 4, supra.
. Prior to 1965, first degree murder in Iowa was punished by death or imprisonment for life at hard labor in the penitentiary. Iowa Code § 690.2 (1962)*. (Capital punishment in Iowa was abolished by the Sixty-first General Assembly in 1965. Iowa Acts 1965, 61st G.A. at 10). Second degree murder in Iowa is punished by imprisonment in the penitentiary for life or for a term of not less than ten years. Iowa Code § 690.3 (1962)*. Manslaughter is punished by imprisonment for a period not exceeding eight years. Iowa Code § 690.10 (1962)*. (* same provisions existed in 1933).
. Respondent attempted to offer evidence concerning tile degree of murder in the present proceedings. Petitioner objected on the grounds that said evidence was immaterial to the issue of due process. Petitioner’s objection was sustained.
. In connection with the availability of witnesses, it should be noted that the sentencing judge, Alan A. Herrick, and the arresting officer, George Oessna, were available and testified in the present proceeding.
. See Chessman v. Teets, 354 U.S. 156, 165-166, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957).