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UNITED STATES EX REL. MUSIL v. PATE

March 7, 1969

UNITED STATES OF AMERICA EX REL. CHARLES MUSIL, PETITIONER,
v.
FRANK J. PATE, RESPONDENT.



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

MEMORANDUM OPINION

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).

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
  affected."
  389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336
  (1967).

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 ...

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