The opinion of the court was delivered by: Perry, District Judge.
The case of Charles Townsend is said to be the oldest capital
punishment case in the country.
The history of the so-called Townsend case dates from the time
of Charles Townsend's arrest in the early morning hours of New
Year's Day 1954 and covers a span of 17 years. Petitioner
(hereinafter sometimes referred to as "Townsend" or "petitioner")
was indicted for the murder of Jack Boone on January 6, 1954. He
was tried in the Criminal Court of Cook County, Illinois; found
guilty by a jury on February 18, 1955, and sentenced to death on
April 7, 1955. Thus Charles Townsend has been, since the date of
his arrest, confined continuously for 17 years in a jail or state
penitentiary and on death row for fifteen years and nine months.
The record in this case is not only long but involved. After
the trial there followed numerous reviews, petitions,
proceedings, appeals and decisions. The Townsend case is now
again before this Court.
This time the cause comes on to be heard upon the Amended
Petition for Writ of Habeas Corpus of petitioner, the Answer and
Amended Answer thereto of respondents, a traverse by petitioner,
evidence submitted in the form of the Appendix in case No. 14519
in the United States Court of Appeals for the Seventh Circuit,
the exhibits presented, the testimony of witnesses and the
argument of counsel for the parties.
Petitioner alleges violation of his Federal Constitutional
rights secured and guaranteed to him by the Fifth, Eighth and
Fourteenth Amendments to the Constitution of the United States,
and pursuant to the pertinent parts of Title 28, Sections 2241
through 2254, and particularly those of Section 2244(a), this
Court has conducted a hearing on petitioner's Amended Petition.
With its long and involved history, the Townsend case stands as
an illustration of the myriad complications, the multitude of
problems, facing the courts in the area of post conviction
review, both direct and collateral in nature. This is one of
those cases which place the courts figuratively on the horns of a
dilemma — in justice to provide petitioner with the opportunity
to pursue every appropriate remedy but at the same time to serve
the interest of society by expeditiously disposing of the ever
increasing load of such cases.
In addition the Supreme Court of this land has set certain
guidelines by its decisions in this area which the lower courts
must follow and interpret and apply. These guidelines have been
necessarily changed from time to time, especially for procedure
in State court trials, in order to bring about uniformity and
fairness of trials in State courts and Federal courts. The
Supreme Court has been especially zealous and rightly so, in
setting guidelines for admitting confessions in capital cases.
The United States Supreme Court in one of its opinions in the
case involving an earlier petition by Townsend noted that the
case came to it "after a tangle of prior proceedings". Since that
time there have been more and involved proceedings in the United
States District Court, the Court of Appeals and the Supreme Court
and the "tangle" has become a labyrinth which, hopefully, will
end with this hearing.
Following is a short history to date of appellate and
collateral review of petitioner's conviction as reflected by the
pleadings, exhibits and reported judicial decisions:
Chronology in Tounsend Case
April 7, 1955 — Charles Townsend was found guilty of murder and
sentenced to death in the Criminal Court of Cook County, Chicago,
March 20, 1957 — The Supreme Court of Illinois affirmed that
conviction. People v. Townsend, 11 Ill.2d 30, 131 N.E.2d 729.
April 28, 1958 — Petition for Post Conviction relief denied,
Criminal Court of Cook County, Illinois.
May 23, 1958 — Petition for Writ of Error (upon the denial of
post-conviction relief) denied by the Supreme Court of Illinois.
December 15, 1958 — Petition for a Writ of Habeas Corpus denied
by the United States District Court, Chicago, Illinois.
December 17, 1958 — Appeal from the denial to issue a Writ of
Habeas Corpus dismissed by the United States Court of Appeals.
United States ex rel. Townsend v. Sain, 7 Cir., 265 F.2d 660.
March 9, 1959 — Supreme Court of the United States, on
certiorari to review the dismissal of the appeal by the Circuit
Court of Appeals, remands cause to the U.S. District Court for a
hearing. Townsend v. Sain, 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d
June 24, 1959 — U.S. District Court dismisses the Petition for
a Writ of Habeas Corpus.
April 7, 1960 — United States Court of Appeals affirms the U.S.
District Court's dismissal. United States ex rel. Townsend v.
Sain, 7 Cir., 276 F.2d 324.
April 3, 1961 — Supreme Court of the United States grants
certiorari. Townsend v. Sain, 365 U.S. 866, 81 S.Ct. 907, 5
March 18, 1963 — Supreme Court of the United States remands the
case to the U.S. District Court for a hearing on the Petition for
a Writ of Habeas Corpus. Townsend v. Sain, 372 U.S. 293, 83 S.Ct.
745, 9 L.Ed.2d 770.
December 17, 1963 — Hearing commences in the U.S. District
Court upon the Petition for a Writ of Habeas Corpus before Judge
Joseph Sam Perry, to whom the case had been reassigned.
January 13, 1964 — U.S. District Court finds Townsend's
confession to be voluntary, but issues a writ giving leave to the
State of Illinois to retry the petitioner within four months
after entry of findings of fact, conclusions of law and judgment
July 22, 1964 — United States Court of Appeals reverses the
decision of the U.S. District Court. United States ex rel.
Townsend v. Ogilvie, 7 Cir., 334 F.2d 837.
January 1965 — Supreme Court of the United States denies
certiorari. Townsend v. Ogilvie, 379 U.S. 984, 85 S.Ct. 683, 13
April 7, 1965 — U.S. District Court dismisses writ under
mandate of Supreme Court and denies leave to file an Amended
May 17, 1966 — United States Court of Appeals affirms the
District Court's dismissal of the writ. United States ex rel.
Townsend v. Ogilvie, 7 Cir., 360 F.2d 925.
November 7, 1966 — Certiorari denied by Supreme Court of the
United States. Townsend v. Ogilvie, Sheriff et al., 385 U.S. 938,
87 S.Ct. 304, 17 L.Ed.2d 218.
March 10, 1967 — Townsend given leave to file new Petition for
a Writ of Habeas Corpus.
March 13, 1967 — Motion of Cook County officials to dismiss
petition for habeas corpus filed and denied.
March 19, 1968 — Respondent's amended motion to dismiss
petition for habeas corpus denied.
March 25, 1968 — Respondent's motion for leave to file motion
for judgment on the pleadings denied.
July 18, 1969 — Petitioner transferred from Cook County Jail to
Illinois State Penitentiary.
July 22, 1969 — Respondent's motion to dismiss because of
petitioner's transfer out of their custody.
September 26, 1969 — Townsend given leave to file instanter
Amended Petition for Writ of Habeas Corpus.
December 8, 1969 — Respondent Warden Pate's motion to dismiss
Amended Petition for Writ of Habeas Corpus denied in toto. On
Court's own motion, Townsend to be given a psychiatric
examination. Respondent's answer to be filed in 20 days.
December 30, 1969 — Warden Pate files Petition for Writ of
Prohibition and/or Mandamus in U.S. Court of Appeals.
January 26, 1970 — Response filed by Townsend in accordance
with order of U.S. Court of Appeals.
February 10, 1970 — Petition for Writ of Prohibition and/or
Mandamus denied by Court of Appeals. No opinion rendered.
May 8, 1970 — Respondent filed petition for certiorari.
June 22, 1970 — Respondent's petition for certiorari denied by
the Supreme Court of the United States.
Upon the Supreme Court's last denial of certiorari, this Court
proceeded in the matter of petitioner's Amended Petition.
Petitioner's counsel having filed a petition alleging that
petitioner "has deteriorated into a state of insanity" as a
result of his long confinement under death sentence, and
petitioner having denied he is insane, this Court ordered that a
psychiatric examination be made of petitioner by Dr. Richard C.
Marohn, a competent and qualified psychiatrist. Based upon said
psychiatrist's psychiatric evaluation of petitioner, upon
petitioner's sane and rational pleadings to this Court, and other
evidence, the Court found Charles Townsend sane, capable of
conferring with his counsel and competent to stand trial.
Petitioner has been ably represented in this proceeding by
William R. Ming,
Jr. and Sophia H. Hall and the law firm of McCoy, Ming and Black,
as has respondent by William J. Scott, Attorney General for the
State of Illinois, and James B. Zagel, Morton E. Friedman and
Donald J. Veverka, Assistant Attorney Generals. The Court notes
that since about 1957 Charles Townsend has had the benefit of the
professional services of the above mentioned law firm and of a
former member of that firm, now Mr. Justice George N. Leighton of
the Illinois Appellate Court, all of said services having been
afforded to the petitioner without any compensation to any of
said attorneys. On the trial below petitioner was represented by
the Cook County Public Defender and his assistants, all without
cost to the petitioner, who is now and has been at all times
indigent and without funds to pay for his defense.
This Court has considered the evidence adduced by the parties
at this hearing. It again has reread and reconsidered all of the
record in this case, as offered in evidence herein, including the
various proceedings, appeals and decisions (prior to the Amended
Petition herein considered) in the State trial court, the Supreme
Court of Illinois, the United States District Court for the
Northern District of Illinois, the United States Court of Appeals
for the Seventh Circuit and the Supreme Court of the United
The Court now is fully advised in the premises herein and has
written this Memorandum Opinion which also shall stand as its
Findings of Fact and Conclusions of Law herein.
In the hope that this decision will furnish a basis for the
final resolution of this case, this Court has conducted a de novo
hearing and undertakes to summarize all of the evidence and law
applicable in some detail.
In the month of December 1953 there occurred a series of brutal
assaults in the neighborhood of 38th Street and Michigan
Boulevard in the City of Chicago. Johnny Stinson, Jack Boone,
Thomas Johnson, Willis Thompson, Joseph Martin and Gus Anagnost
were assaulted and robbed. Stinson, Boone, Johnson and Thompson
all died as a result of an assault, each made with some hard
substance. According to Martin and Anagnost, a brick was the
object with which they were assaulted. The similarity of these
six assaults led police to believe that the assailant was one and
the same in each case. The armed robbery of Joseph Martin took
place on December 4, 1953; the assault on Jack Boone occurred on
December 18, 1953, and the last assault, on Gus Anagnost,
occurred on December 28, 1953. The police undertook a concerted
drive to identify and arrest the person or persons guilty of
In the early morning hours of January 1, 1954, a police
homicide squad, composed of Police Officers Edward Cagney, John
Fitzgerald, George Martin and John Corcoran, arrested several
young Negro men on suspicion. Among those arrested were George
Hare, Oliver Johnson, Theodore Redd and Vernon Campbell (a/k/a
Vincent Campbell). The police accused Vernon Campbell of being
implicated in the assaults; but he denied any part. They
questioned all the others arrested at length. Campbell and the
others informed police that Charles Townsend was a likely
suspect, that more than once he had been seen with a brick, and
that Townsend had said he was going to use it to "make some
money". The police officers inquired as to when and where they
might find him.
Vernon Campbell, who was then on probation from a conviction of
robbery and was a known associate of Townsend, was put in a squad
car and driven around. He knew where Townsend played pool.
Campbell named a location near 35th Street and Indiana Avenue.
The police and Campbell waited at the corner. At about 2:25 A.M.
on New Year's Day 1954 Charles Townsend and Robert Corley or
Robert Brown came along and were arrested by the four police
officers above named.
Townsend was taken to the Second District Police Station where
he was questioned for some time, 30 minutes to an hour or more,
with all four of the police officers present, about the death of
Jack Boone, a Chicago steelworker, and the several other
homicides and robberies. Officer Cagney did most of the
questioning. Townsend denied knowledge of Boone's death or of the
other homicides and robberies.
Townsend was then 19 years old. The police had learned from
Townsend's associates and from him that he was a confirmed heroin
addict. They learned from Townsend that it was his practice to
take heroin two or three times daily and that he had taken an
intravenous injection of heroin around midnight or 12:30 A.M.
while the New Year's Eve celebrations were still in progress.
About 5 o'clock in the morning of January 1, 1954, Townsend was
transferred from the police station at 300 East 29th Street to
the 19th Police District station where he was placed in a cell
all alone. The lockup keeper was told to allow no one to speak to
Townsend. There Townsend remained incommunicado until about 8
o'clock that evening. He was left without food, except that a
lockup officer testified that he was eating a sandwich and asked
Townsend if he wanted one and that Townsend answered that he did
Shortly after 8 P.M. Townsend was returned to the Second Police
District station and to the custody of the officers who had
arrested him. There he was put in a "show up" with several other
men, including George Hare, Oliver Johnson and Vernon Campbell.
The purpose of the "show up" was to allow the aforementioned Gus
Anagnost to select from the "show up" the man who had robbed him.
Anagnost came in and picked out a Negro male in the line-up other
than Townsend as his assailant. There was a scuffle between
Townsend and the man identified by Anagnost. The police officers
told Anagnost that he "picked out the wrong man."
After the "show up" Townsend was taken into another room and
the police officers continued to interrogate him until about 9:45
P.M. when Assistant State's Attorney Rudolph Janega arrived to
take a statement from Townsend. He had been called by Officer
Cagney who had done most of the questioning of Townsend. When
Janega arrived Townsend was holding his stomach and complaining
that he was sick and wanted a doctor. Janega would not take a
statement from Townsend in his condition and until he was treated
by a ...