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
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
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
On March 5, 1963, DeMary presented himself to the police, and
the case against him was reinstated the following day. After his
formal plea of not guilty was
taken, the case was then assigned to Judge Harewood, and an
assistant public defender, Justine Knipper, was designated to
represent DeMary. She appeared with him on the same date, March
6, before Judge Harewood, who continued the case to March 27,
1963, with directions to the prosecution to furnish DeMary's
counsel with any statements in their possession.
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
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 ...