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March 11, 1974


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


This is a petition for issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a previous opinion,*fn1 respondent's motion to dismiss for failure to state a claim was granted in part. The central issue that remained was whether petitioner's Sixth Amendment right to counsel during custodial interrogation, as established in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), was violated. At the time of that opinion there appeared to be genuine issues of material fact as to the Escobedo issue, and therefore respondent's alternative motion for summary judgment was denied. Since that time, a transcript of petitioner's trial was made available to this Court; and a close examination of it has made it apparent that the alleged constitutional error at trial was not committed. The subject of this opinion is a reexamination of the questions presented by respondent's motion for summary judgment in light of this fact.


The chronology in this case, as determined from all the pertinent documents on file, is as follows:

Richard Wayne Mattox was 31 years old when he was arrested and questioned by the police in connection with the murder of Harvey Weinstein. He was in relatively good physical health at the time of his arrest. His education is not extensive, not going beyond the eighth grade. Mentally and emotionally he appears to have been stable. Prior to trial a hearing was had regarding his competency to stand trial and a finding was made that he was competent. The hearing was deemed necessary because on two prior occasions in the early 1950's he was twice confined to state mental hospitals — once for a year and again for four months.

On October 1, 1963, at 6 a.m. Mattox was arrested without a warrant for the murder of Harvey Weinstein. He was taken to the Bedford Park Sheriff's Police Station, where he remained in custody until 5 p.m. Once during that time he was handcuffed to a chair and pushed to the floor by an unidentified deputy sheriff. Otherwise, there is no indication of any physical abuse, and Mattox was not injured in any way. In fact, when Mattox was shoved, the Chicago Police Officers who later interrogated him told the deputy to leave him alone.*fn2

During the last two hours of his confinement at the Sheriff's Office, Mattox was questioned by the Chicago Police. He admitted to them that he and the victim's wife had had an ongoing sexual relationship. He also admitted facts which implicated himself and Mrs. Weinstein in the murder. At 5 p.m. he was released into the custody of the Chicago Police Department and taken to headquarters. He was not taken before a magistrate at that time.

When he arrived at the police station, he was given ham sandwiches, milk and coffee. At 8 p.m. the police began questioning him, and continued to do so until 11 p.m., when he was given a lie detector test. At midnight the police again questioned him and continued until approximately 2 a.m. It was during this two hour period that a court reporter recorded Mattox's answers to the questions put to him by Assistant State's Attorney Joseph McDermott.

By the time the questions ceased, Mattox had admitted in his recorded statement the following facts: (1) he was having an affair with Mrs. Weinstein; (2) he knew she wanted to do away with her husband; (3) he knew that an unidentified person he was with on the night of the murder was going to try to kill Harvey Weinstein; (4) Mattox was at the Weinstein home the night of the murder; and (5) he shoved Harvey Weinstein through a doorway and saw Mrs. Weinstein hit him on the head with a heavy object. This statement was admitted into evidence at Mattox's trial as Exhibit 24. It was also used, as will be discussed below, to cross examine him at the motion for a new trial made by his co-defendant, Mrs. Weinstein.

Mrs. Weinstein was tried as a co-defendant in a severed trial about three months prior to Mattox's trial, and was found guilty. She then moved for a new trial on the ground of newly discovered evidence, i.e., Mattox's testimony. Mattox took the stand and testified against the advice and over the objections of his attorney. Prior to testifying, he was thoroughly warned by the judge that anything he said could be used against him at his approaching trial.*fn3

In substance, Mattox testified on direct examination that neither he nor Mrs. Weinstein had anything to do with the murder, but rather, that Harvey Weinstein left his home unharmed in the company of another man named Shelton. Mattox contended at the hearing that Shelton was the murderer and that he had admitted killing Weinstein. On cross examination, Mattox was questioned as to each question and answer contained in the statement taken by the court reporter at police headquarters (which became Exhibit 24 at his trial). He denied he ever gave a statement before a court reporter; and he denied he ever implicated Mrs. Weinstein in the murder. A copy of his statement was then admitted into evidence for the purpose of impeachment by prior inconsistent statement. Subsequently, at his own trial, a transcript of Mattox's testimony was admitted into evidence as Exhibit 25.

The significance of Mattox's testimony at the Weinstein hearing is that he described the conditions under which he was interrogated. In particular, he described the advice the police gave him concerning his constitutional rights. Although his testimony is often contradictory and confusing, the following facts are clear: (1) before the Chicago Police questioned Mattox they advised him that he had a right to consult an attorney *fn4 and that he had a right to refuse to sign any written statements tendered to him by the police;*fn5 (2) he was also advised of his right to remain silent;*fn6 (3) in accordance with this advice, he attempted to call his attorney but without success;*fn7 and (4) he testified that thereafter, he relied upon the advice the police had given him by refusing to either say*fn8 or sign*fn9 anything.

At Mattox's trial, counsel stipulated that if the court reporters were called, they would testify that Exhibits 24 and 25 are accurate records of what Mattox said at the police ...

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