fact which is not probative as to whether he was competent to
waive his rights.
Secondly, assuming he knew of petitioner's history of mental
illness, the trial judge did have the opportunity to observe
petitioner's demeanor throughout the proceedings and
particularly when petitioner waived his right to remain
silent. It is well established that raising the issue of
incompetency sua sponte is within the sound discretion of the
trial judge; and failure to raise the issue does not violate
due process unless he abused that discretion. See Green v.
United States, 128 U.S.App.D.C. 408, 389 F.2d 949, 953 (1967).
Petitioner has not alleged circumstances so unfair that it
could be said the discretion to raise the issue of
incompetency sua sponte was abused. Therefore, he was properly
permitted to waive his right against self-incrimination; and
admission of the transcript of his testimony at his own trial
was not in error.
C. Incompetency of Appointed Counsel
Petitioner further objects to his conviction on the ground
that his court-appointed attorneys were incompetent.
Specifically, he asserts that trial counsel failed to object
to certain items of evidence and then elected to present no
evidence on petitioner's behalf. Did this constitute a denial
of petitioner's Sixth Amendment right to effective counsel?
Clearly not. Although the right to counsel is a fundamental
right which is 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 (1963), it does not follow that
perfection is required. Rather, this constitutional guarantee
is satisfied when the conduct of counsel is such that the
essential integrity of the proceedings as a trial is preserved
and the trial has not made a travesty of justice. United
States v. Stahl, 393 F.2d 101, 104 (7th Cir. 1968). United
States v. Dilella, 354 F.2d 584, 587 (7th Cir. 1965). Errors
of judgment of counsel, if any, whether of omission or
commission, do not constitute a deprivation of effective
representation at trial within the constitutional concept.
Id. The trial in this case cannot honestly be categorized as a
travesty of justice because of counsel's failure to object to
some of the prosecution's evidence and to present any evidence
for the defense. Indeed, the court congratulated counsel on his
advocacy and acknowledged that counsel's omissions were part of
Petitioner also contends appellate counsel was incompetent
in that he raised on appeal only the issue of whether the body
of the murder victim was properly identified. His failure to
brief the questions presented in the instant petition is
alleged to have violated petitioner's right to effective
counsel. However, as mentioned above, this constitutional
guarantee does not require perfection; and mere errors of
judgment, if any, whether of omission or commission, do not
constitute a deprivation of effective counsel. Moreover,
counsel is obligated by the constitution to brief only those
points which, in his judgment, can be sustained on appeal. See
Hanger v. United States, 308 F. Supp. 281, 283 (E.D.Mo. 1969),
aff'd, 428 F.2d 746 (8th Cir. 1969).
In essence, petitioner contends that the incompetence of
appellate counsel is indicated by his failure to raise on
appeal those issues which are presently found by this Court to
be without merit. Such a position is clearly untenable, and I
will not substitute my judgment for that of counsel.
Therefore, I hold that petitioner fails to state a claim
upon which relief may be granted with regard to the issue of
the competency of his trial or appellate attorneys.
As to the remaining issues, I find there are genuine issues
of material fact
which requires denial of respondent's motion for summary
judgment; and for the following reasons, it is concluded that
petitioner states a claim upon which relief may be granted:
A. Denial of Counsel During Custodial
Petitioner objects to his conviction on the ground that his
Sixth Amendment right to counsel during police interrogation,
as established by Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct.
1758, 12 L.Ed.2d 977 (1965), was denied, and that the
statement obtained from him was therefore inadmissible.
Because he alleges his trial commenced on August 16, 1965 (i.
e., after the date of the decision in Escobedo), the rule in
Escobedo applies. Johnson v. New Jersey, 384 U.S. 719, 734, 86
S.Ct. 1772, 16 L.Ed.2d 882 (1966).
In support of his contention, petitioner alleges that when
he asked permission to consult with his attorney, the police
and assistant state's attorney disregarded his request by
continuing to question him. Furthermore, he alleges they
misled him by telling him he would be protected against
self-incrimination so long as he did not sign anything. Relying
upon this advice, petitioner eventually admitted to them that
he had been in the victim's home the night of the murder and
that he was having an affair with the victim's wife. He refused
to sign a transcript of his statement. The unsigned transcript
was then entered in evidence at his trial over defense
counsel's objection, and the court relied upon it in finding
Where, as here, the investigation is no longer a general
inquiry into an unsolved crime but has begun to focus on a
particular suspect, the suspect has been taken into policy
custody, the police carry out a process of interrogations that
lends itself to eliciting incriminating statements, the
suspect has requested and been denied an opportunity to
consult with his lawyer, and the police have not effectively
warned him of his absolute constitutional right to remain
silent, the accused has been denied the assistance of counsel
in violation of the Sixth Amendment to the Constitution as
made obligatory upon the States by the Fourteenth Amendment;
and no statement elicited by the police during the
interrogation may be used against him at his criminal trial.
Escobedo v. Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 12
L.Ed.2d 977 (1964).
The trial court having admitted into evidence petitioner's
statement which was allegedly obtained in violation of
Escobedo, and the court having relied upon that statement in
finding him guilty, it is concluded that serious constitutional
error may have been committed at trial. Therefore, petitioner
states a claim upon which relief may be granted as to this
B. "Harmless Error"
In dismissing petitioner's request for post-conviction
relief without an evidentiary hearing, presiding Judge Power
of the Criminal Division of the Circuit Court of Cook County
held, in effect, that petitioner had the burden of proving
that the alleged constitutional errors at his trial were not
"harmless", and that he had failed to sustain that burden.
Judge Power said:
"The petitioner has not established any
constitutional errors which contributed to the
defendant's conviction sufficient enough to grant
him any post conviction relief, therefore, his Post
Conviction Petition will be denied." Record at 232,
Mattox v. People, Post Conviction No. 2079 (June
15, 1971) (emphasis added).
Petitioner contends that such a "harmless error" standard is
contrary to that established in Fahy v. Connecticut,