United States District Court, Northern District of Illinois, E.D
March 7, 1969
UNITED STATES OF AMERICA EX REL. CHARLES MUSIL, PETITIONER,
FRANK J. PATE, RESPONDENT.
The opinion of the court was delivered by: Marovitz, District Judge.
Petition for Writ of Habeas Corpus
This is a petition for a writ of habeas corpus. Petitioner and
another party were arrested on November 14, 1959, one day after
the fatal shooting of Carl Christensen. Some unknown time later,
petitioner was called as a witness at the coroner's inquest into
the death of Carl Christensen. Before testifying, he was warned
by the deputy coroner that he did not have to testify unless he
did so voluntarily and that anything said may be held against him
at a later date. Petitioner was not advised that he had a right
to counsel. Petitioner then gave testimony amounting to a
confession. At trial for the murder of Christensen, petitioner
denied his guilt, and the testimony he had previously given was
used to impeach him. Petitioner was found guilty of murder and
sentenced to thirty-five years imprisonment. The Illinois Supreme
Court affirmed that conviction on May 18, 1967. People v. Musil,
37 Ill.2d 373, 227 N.E.2d 751 (1967).
Petitioner brings this action on the theory that his conviction
was in violation of his constitutional right to counsel.
The Sixth Amendment to the United States Constitution provides,
"In all criminal prosecutions, the accused shall enjoy the right
* * * to have the Assistance of Counsel for his defense." That
right is a fundamental right, essential to a fair trial, and,
consequently, applicable to the states under the due process
clause of the Fourteenth Amendment. Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963).
The question before this court is whether an indigent has a
right to counsel at a coroner's inquest. It is clear that the
right to counsel is not limited to having a lawyer present at the
trial. Moore v. Michigan, 355 U.S. 155, 160, 78 S.Ct. 191, 2
L.Ed.2d 167 (1957). The clearest and most recent statement of the
scope of the right to counsel is found in Mempa v. Rhay:
"appointment of counsel for an indigent is required
at every stage of a criminal proceeding where the
substantial rights of a criminal accused may be
389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336
Besides the trial, Gideon v. Wainwright, 372 U.S. 335
, 83 S.Ct.
792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), an accused has a
right to counsel at some arraignments, Hamilton v. Alabama,
368 U.S. 52
, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), United States v.
Stahl, 393 F.2d 101
(7th Cir. 1968); at preliminary hearings,
Arsenault v. Massachusetts, 393 U.S. 5
, 89 S.Ct 35, 21 L.Ed.2d 5
(1968), White v. Maryland, 373 U.S. 59
, 83 S.Ct. 1050, 10 L.Ed.2d
193 (1963); at the time of sentencing, Townsend v. Burke,
334 U.S. 736
, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); at a revocation of
probation proceeding, McConnell v. Rhay, 393 U.S. 2
, 89 S.Ct. 32,
21 L.Ed.2d 2 (1968), Mempa v. Rhay, 389 U.S. 128
, 88 S.Ct. 254,
19 L.Ed.2d 336 (1967); and on appeal, Douglas v. California,
372 U.S. 353
, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
The specific question before us, then, is whether a coroner's
inquest is a similar criminal proceeding wherein the rights of
the accused may be affected. The state contends that the purpose
of the inquest is "merely a preliminary investigation into the
circumstances surrounding a particular death." (Brief, at 4).
Further, a short while after the Illinois Supreme Court affirmed
petitioner's conviction, it discussed the nature of a coroner's
inquest and was "unwilling" to find that it was a "stage of a
criminal proceeding." People v. Murdock, 39 Ill.2d 553, 558,
237 N.E.2d 442 (1968). On this basis, the Illinois Supreme Court said
that Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336
(1967), was inapplicable.
Mr. Justice Schaefer's dissent on this issue is particularly
compelling, 39 Ill.2d at 563-566, 237 N.E.2d 442. As he points
out, "(a) coroner's inquest is a proceeding of some kind and it
certainly is not a civil proceeding." Id. at 564, 237 N.E.2d at
448. The statutory purpose of this formal proceeding is to
determine how and "by whom * * * the dead body came to its death
* * *." Ill.Rev.Stat. ch. 31, ¶ 15 (1967). In this particular
case, petitioner was clearly suspected of murder. He was under
arrest. He was called to testify about the circumstances
regarding the murder. In sum, the proceeding was clearly criminal
in nature, a critical stage in the criminal process.
Moreover, not only was this a stage where the accused's rights
may have been affected, they were affected. The situation
presented here is not distinguishable from that in Arsenault v.
Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). In
both cases, the petitioners were arrested in connection with a
recent homicide and made incriminating statements at a
preliminary hearing at which each was unassisted by counsel.
Later at their respective trials, each was questioned about his
prior statements, in Musil's case for purposes of "impeachment"
and in Arsenault's case for "refreshing his memory." 393 U.S. at
5, 89 S.Ct. 35, 21 L.Ed.2d 5. Both were found guilty. It is
apparent to us that the absence
of the aid of counsel deprived this petitioner as it did
Arsenault of his basic right to an adequate meaningful defense.
There is an additional, independent reason why we believe that
this petitioner was deprived of basic rights. Among the Illinois
laws regarding coroner's inquests is the following:
"Any witness appearing at the inquest shall have the
right to be represented by counsel."
Ill.Rev.Stat. ch. 31, ¶ 18.1 (1967).
That provision was in force when petitioner was brought to
testify at the inquest, although he was not advised of this
right. The state suggests that the absence of any provision for
the appointment of counsel is of "primary significance." (Brief,
at 2). Also, the Illinois Supreme Court, in People v. Murdock,
said that this statute "has never been construed to give an
indigent witness the right to free counsel, even though such
witness was then suspected of murdering the decedent." 39 Ill.2d 553,
557, 237 N.E.2d 442, 445 (1968). Yet, under these
circumstances, what this construction means in plain and simple
terms is that the rich have a right to counsel but the poor do
not. I can hardly think of a construction which more clearly
violates the equal protection clause of the Fourteenth Amendment.
Cf. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d
In support of its position that defendant Musil was adequately
advised of his rights, the state refers us to People v. Jackson,
23 Ill.2d 263, 178 N.E.2d 310 (1961). In that case the defendant
was arrested on a murder charge. The day after his arrest he
signed a lengthy confession describing the murder. About a week
later, at a preliminary hearing, without being represented by
counsel or advised of his right to remain silent, the defendant
admitted under oath that he stabbed the victim. The transcript of
this proceeding was admitted into evidence against the defendant
at his trial. On appeal, the defendant contended that his
privilege against self-incrimination had been violated. The state
suggested that defendant waived the privilege when he
affirmatively replied to a question as to whether his statement
was made of his own free will. The Illinois Supreme Court
rejected this reasoning, and properly pointed out:
"One cannot waive a right he does not know exists,
and there is nothing in this record from which it can
be said that the defendant knew or should have known
of his right * * *. Indeed, it is admitted he was not
at any time advised of this right before he testified
under oath, thus leaving little room for the argument
that he deliberately and intelligently waived such
23 Ill.2d 263
, 269, 178 N.E.2d 310
, 313 (1961).
Quite simply, this case is support for defendant's position, not
for that of the state.
Moreover, that a criminally accused must be adequately informed
of his rights before he can be said to have made an intelligent
and voluntary waiver of them is a principle of long standing.
Indeed, the United States Supreme Court has defined a waiver as
"an intentional relinquishment or abandonment of a known right or
privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,
1023, 82 L.Ed. 1461, 146 A.L.R. 357 (1938). Further, "`courts
indulge every reasonable presumption against waiver' of
fundamental constitutional rights and * * * we `do not presume
acquiescence in the loss of fundamental rights.'" Id.
Petitioner was not advised of his right to counsel under the
Sixth Amendment or Illinois state law. Consequently, he cannot be
said to have waived this right.
The judiciary has been particularly vigilant in the area of
constitutional rights. In recent years, many important opinions
have been written on the Fourth Amendment right to be secure
against unreasonable searches and siezures, e.g., Katz v. United
States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), United
States v. White, 405 F.2d 838 (7th Cir. 1969), on the Fifth
of the privilege against self-incrimination, e.g., Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d
974 (1966), Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12
L.Ed. 2d 977 (1964), and on the Sixth Amendment rights of
assistance to counsel for one's defense, e.g., Arsenault v.
Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed. 2d 5 (1968),
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799,
93 A.L.R.2d 733 (1963), and to confront and cross-examine the
witnesses against him, e.g., Bruton v. United States,
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Our decision today is
in line with these attempts to preserve, protect, and to make
meaningful the Constitutional rights and privileges which are
afforded free citizens in a free society.
Petitioner is entitled to have his murder conviction vacated
and a new trial ordered at which time his testimony given at the
coroner's inquest would be inadmissible. As petitioner is being
incarcerated legally on two other indictments, he must not, of
course, be released from prison.
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