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October 31, 1967


The opinion of the court was delivered by: Decker, District Judge.


After holding an evidentiary hearing upon a petition for habeas corpus filed by a state court prisoner presently confined at the Illinois State Penitentiary, I am confronted with the question of whether the writ should be granted because of inadequate representation of the petitioner at his trial.

The ten to fifteen year sentence which petitioner DeMary has been serving was imposed on July 3, 1963, by the Criminal Court of Cook County following a jury trial upon a charge of burglary. DeMary did not appeal his conviction but subsequently filed a petition in the trial court under the Illinois Post-Conviction Hearing Act which was dismissed on the State's motion without a hearing. In his post-conviction petition, DeMary alleged that he had not been provided adequate representation of counsel on his trial, as guaranteed by the due process clause of the Fourteenth Amendment, and particularly alleged that neither his court-appointed public defender nor any other public defender ever came to the jail to consult with him as to the nature of the charge against him or to see if he had any witnesses to appear in his behalf. In such petition, DeMary also alleged that his co-defendant Frank Wilson was available as a witness at the time of DeMary's trial and furnished a supporting affidavit to this effect.

The dismissal of this petition without a hearing was affirmed by the Supreme Court of Illinois, People v. DeMary, 37 Ill.2d 364, 227 N.E.2d 361 (1967) (Schaefer, J., dissenting).

In the petition filed here for a writ of habeas corpus, DeMary makes substantially the same allegations as he set forth in his post-conviction petition.

Under the provisions of 28 U.S.C. § 2243, I considered it mandatory to grant petitioner's request for an evidentiary hearing, which I limited to two factual questions: (1) Did court-appointed trial counsel confer adequately with petitioner in advance of his trial? (2) Was Frank Wilson an available defense witness at petitioner's trial, and what would have been the nature and effect of his testimony?

On the basis of such hearing, and after consideration of all the documents submitted, including the transcript of the trial, I have determined that the petition must be granted for the reasons which I will now state.

The details of the burglary for which petitioner was tried and convicted are sufficiently set forth in the Supreme Court opinion, 37 Ill.2d at 365-366, 227 N.E.2d 361. The following additional facts were developed at the evidentiary hearing or obtained from the transcript of the trial court testimony, which I have carefully reviewed.

DeMary's arrest for the October 10, 1961, burglary occurred on October 23, 1961. After being taken to the police station, according to police testimony, he gave an oral statement admitting that he and his brother-in-law, Frank Wilson, the co-defendant, participated in the burglary. After this statement was reduced to writing, DeMary refused to sign it. After being released on bond, DeMary did not appear at his arraignment, and the case against him was stricken with leave to reinstate. DeMary claims that at the time of his arraignment he was ill in the hospital. His co-defendant Wilson was thereupon tried and acquitted.

The case was called again on March 27, April 15, April 25, May 9, and May 21, and was continued each time. On the second of these dates, Attorney Knipper was furnished with a copy of the alleged confession, and on April 25 she answered "ready for trial." On June 17, Miss Knipper again answered "ready for trial," and the trial was held on the following two days.

From Attorney Knipper's own testimony, it appears that she only consulted with DeMary on four occasions prior to appearing for trial. These four dates were March 6, March 27, April 15 and April 25. All of these "consultations" were in the "bull pen," the detention area for prisoners directly behind the courtroom. There were no conversations on the continuance dates of May 9 and May 21.

On March 6 there was only a brief interview at which time Miss Knipper found out that there was a possibility that DeMary or his family would be able to obtain private counsel, and on this occasion he stated to her that he did not commit the burglary and that "there was a possibility of an alibi." Miss Knipper at that time made a notation "to check the alibi for the day of the burglary." Thereafter she did no checking and she had no further conversation with DeMary relative to the alibi defense.

According to her own testimony, Miss Knipper spoke with DeMary on March 27 only to tell him that the case would be continued. The next conversation on April 15 occurred after Miss Knipper had read the alleged confession. At this time, according to her testimony, she told DeMary that the case would be difficult for him if Clifton Sloan, the ...

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