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UNITED STATES EX REL. TOWNSEND v. TWOMEY

January 27, 1971

UNITED STATES OF AMERICA EX REL. CHARLES TOWNSEND, NO. 210838, BY WILLIAM R. MING, JR., HIS NEXT FRIEND, PETITIONER,
v.
JOHN J. TWOMEY, WARDEN OF ILLINOIS PENITENTIARY, JOLIET-STATESVILLE BRANCH, RESPONDENT.



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

MEMORANDUM OPINION

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, Illinois.

March 20, 1957 — The Supreme Court of Illinois affirmed that conviction. People v. Townsend, 11 Ill.2d 30, 131 N.E.2d 729.

October 14, 1957 — Petition for Certiorari denied. Townsend v. Illinois, 355 U.S. 850, 78 S.Ct. 76, 2 L.Ed.2d 60.

November 25, 1957 — Rehearing denied. Townsend v. Illinois, 355 U.S. 886, 78 S.Ct. 152, 2 L.Ed.2d 116.

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.

November 10, 1958 — Petition for Certiorari denied. Townsend v. Illinois, 358 U.S. 887, 79 S.Ct. 128, 3 L.Ed.2d 115.

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 634.

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 L.Ed.2d 859.

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 order.

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 L.Ed.2d 574.

April 7, 1965 — U.S. District Court dismisses writ under mandate of Supreme Court and denies leave to file an Amended Petition.

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.

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 States.

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 these assaults.

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 not.

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 ...


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