Knoch, Senior Circuit Judge, and Kiley and Cummings, Circuit Judges. Knoch, Senior Circuit Judge (dissenting).
This is an appeal from the district court's dismissal of a habeas corpus petition filed by John Edwin Myers, who was sentenced to death for murder in April, 1964, after a jury trial in an Illinois court. We retain jurisdiction, and remand for a limited hearing.
Myers and a thirteen year old girl companion were arrested in Texas on September 2, 1961, at about 2:00 a.m. and were charged with kidnapping. During the evening of September 3 he admitted to Texas authorities that he had committed one homicide in Texas and two in Illinois. The next afternoon he admitted the Illinois killings to Illinois authorities.
Myers and his juvenile companion were indicted for murder in St. Clair County, Illinois, as to one of the admitted Illinois homicides. Counsel was appointed for Myers and before trial a motion to suppress succeeded in excluding the confessions to the Texas authorities, but the motion failed with respect to the confession to Illinois authorities.*fn1
Two petitions for a change of venue from St. Clair County, based on alleged prejudicial publicity, were denied. A jury found Myers guilty and fixed the penalty at death. Court-appointed appellate counsel for Myers moved to vacate the judgment and sentence of death on the ground that the court had violated Illinois law by denying Myers a hearing in mitigation of sentence. The motion was denied. An appeal to the Illinois Supreme Court resulted in affirmance of the conviction. People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297. The United States Supreme Court denied certiorari, 385 U.S. 1019, 87 S. Ct. 752, 17 L. Ed. 2d 557. The petition before us was filed in May, 1967.
The issues raised in this court are (1) whether Myers was denied due process by the denial of a change of venue, (2) whether he was denied due process by the admission at his trial of his confession to Illinois authorities over his objection that the confession was tainted by the involuntary confession to the Texas authorities, (3) whether he was denied a Sixth Amendment right to compel his juvenile companion to testify in his behalf, and (4) whether his right to due process was violated by the state court's denial of a hearing in mitigation of sentence.
In the district court, in response to a rule to show cause, the state of Illinois relied upon the decision of the Illinois Supreme Court, and the record of the state trial. The district court found on the state court record that the Supreme Court of Illinois had adequately covered the claims of unconstitutionality presented in Myers' petition, and agreed with the "conclusions and ruling" of the Illinois Supreme Court.
The Supreme Court of Illinois detailed the circumstances which are the basis of Myers' claim that the denial of his motion for a change of venue prejudiced the outcome of his trial. Myers argues that these circumstances show that pretrial publicity permeated the community to such an extent that prejudice from the denial of his change of venue must be presumed. The record of this case shows that the newspapers, radio and television gave extensive coverage to petitioner's case and that apparently 38 jurors out of a panel of 120 had to be excused because they had heard or read something which might affect their judgment in the case.
These facts fall far short of those present in the cases upon which Myers relies. In Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751, eight of the twelve jurors who decided the case admitted before trial that they had formed an opinion of defendant's guilt. In Rideau v. State of Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663, the people of Louisiana saw Rideau confess to the sheriff on television. In Estes v. State of Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543, a pre-trial hearing and the defendant's trial were broadcast live on television and radio facilities; and in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600, no effort was made to insulate the jury from trial publicity, two jurors admitted reading highly inflammatory material, a pre-trial inquest was televised live, and prospective jurors received anonymous letters after pictures of the jurors accompanied by their names and addresses appeared in the press. These differences in facts indicate the probability of prejudicial effect of publicity on the trials in the cases relied on was greater than that present in Myers' case. Moreover, in Rideau, Estes, and Sheppard, the cases where the Supreme Court evinced a willingness to presume prejudice to the defendant as a result of publicity, conduct engaged in by the state or procedures adopted by the trial judge contributed substantially to the quantity and effect of the publicity surrounding the trial. No such conduct or procedure is present in the record of this case.
During his trial, Myers sought to introduce, as evidence of insanity, letters written by him to his juvenile accomplice. These letters were owned by his accomplice and were in the possession of his accomplice's attorney who refused to produce them in court on the ground that his client would be incriminated by them. After the defendant concluded his case, the state produced a psychiatrist who testified as a rebuttal witness on the sanity issue. Myers then sought to call his accomplice as a surrebuttal witness. The accomplice had been subpoenaed by the state and was present in court but had not been called by the state, since her lawyer advised the prosecutor that she would refuse to testify on Fifth Amendment grounds. The trial court refused to allow Myers to call the accomplice, ruling that no surrebuttal would be allowed.
On appeal, the Illinois Supreme Court found no error in the rulings excluding the letters and refusing the defense permission to call the accomplice. The court concluded that the privilege against selfincrimination had been properly invoked with regard to the letters and also that the accomplice was properly excluded as a witness, since she had indicated that she would refuse to testify if called.
Myers argues that these rulings violated his right to compulsory process under the Sixth Amendment as enunciated in Washington v. State of Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019. In Washington a state law which prevented a criminal defendant from calling an accused accomplice as a witness on his behalf was held to violate the Sixth Amendment. The holding in Washington was based on the Supreme Court's conclusion that the compulsory process clause is violated by "arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief." The action of the trial court here in allowing an attorney to refuse to produce incriminatory letters which his client has left in his possession does not fall within the class of rules condemned in Washington ; nor does the trial court ruling denying Myers the right to call surrebuttal witnesses, or the Illinois Supreme Court ruling that a criminal defendant may not call a witness who has indicated that she will refuse to testify. The Sixth Amendment does not operate to prevent a state from adopting any limitations on defense evidence in criminal trials, but only prevents the adoption of broad arbitrary limitations. The limitations here are neither broad nor arbitrary, and we consequently find no violation of Myers' Sixth Amendment rights.
Myers argues that he was denied a hearing on mitigation of sentence and that this denial abridges his constitutional right to due process. The Illinois Supreme Court found that he had been granted an opportunity to speak in mitigation prior to sentencing and that his failure to speak was a waiver of his right to be heard. Myers argues that the record shows that he was not offered a right to be heard in ...