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UNITED STATES EX REL. VEAL v. WOLFF

May 14, 1981

UNITED STATES EX REL. JOHNNY VEAL, PETITIONER,
v.
DENNIS WOLFF, WARDEN, AND HONORABLE WILLIAM G. SCOTT, ATTORNEY GENERAL OF ILLINOIS, RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

This is a petition for a writ of habeas corpus filed by Johnny Veal pursuant to 28 U.S.C. § 2254(a) in January, 1980. Veal is currently incarcerated at Stateville Correctional Center in Joliet, Illinois, where he is serving concurrent terms of not less than 100 years nor more than 199 years for the murders of two Chicago police officers in July, 1970. His conviction was affirmed by the Illinois Appellate Court in People v. Veal, 58 Ill. App.3d 938, 16 Ill.Dec. 188, 374 N.E.2d 963 (1st Dist. 1978). The Illinois Supreme Court denied leave to appeal, and Veal's petition for a writ of certiorari was denied by the United States Supreme Court, Veal v. Illinois, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979).*fn1

Veal challenges his state criminal conviction as having been procured in violation of his sixth amendment right to confront and cross-examine witnesses, and to compel the attendance of witnesses in his behalf, and his fourteenth amendment right to due process, in that: (1) the trial court refused to let petitioner's alibi witnesses testify in his defense because their names were not disclosed to the State at the conclusion of the State's case-in-chief; (2) the State failed to disclose charges pending against two juvenile witnesses who testified for the State and did not correct the perjured testimony of one of these witnesses on this point at trial; (3) the State suppressed and failed to disclose upon request other evidence favorable to the defense; and (4) the trial judge was a material witness who declined to recuse himself and testify at the post-trial hearing concerning an in camera and partially recorded discussion he had with one of the State's witnesses during the trial at which the witness, who later recanted his trial testimony at the post-trial proceeding, maintained that he told the judge that he had fabricated his trial testimony because of threats made by the State.*fn2

I.

Petitioner Veal and a co-defendant, George Clifford Knights,*fn4 were tried before a jury in the Cook County Circuit Court during the summer of 1971 for the July 17, 1970, murders of Chicago police officers James Severin and Anthony Rizzato at the Cabrini-Green housing project. The trial began in July and lasted well over a month. Veal and Knights each had separate counsel.*fn5

At the time of the trial, the Illinois Code of Criminal Procedure required that, upon request by the prosecution not less than ten days prior to trial, the defendant must produce, not less than five days prior to trial, notice that he intended to rely on an alibi defense. The notice was required to contain a statement of where the defendant claimed he was at the time of the crime and a list of the names and addresses of the witnesses whom the defendant intended to call to support the defense. Ill.Rev.Stat. ch. 38 § 114-14 (1969).*fn6 If the defendant did not comply with the statute, the court was permitted to exclude any alibi evidence offered by the defendant. Ill.Rev.Stat. ch. 38, § 114-14 (1969). The Code specifically denied to the defense the right to discover the names and addresses of the State's rebuttal witnesses. Ill.Rev.Stat. ch. 38 § 114-9(c) (1969).

Prior to Veal's trial, the State filed a motion for discovery which included a demand for notice of any alibi defense and the names and addresses of any alibi witnesses. People v. Veal, 58 Ill. App.3d 938, 975-76, 16 Ill.Dec. 188, 374 N.E.2d 963 (1st Dist. 1978). See also Transcript at 6761, 6763-64. Veal did not respond to the State's demand. After the State had presented its case-in-chief and before the commencement of the defense, Veal's attorney argued that the Illinois notice-of-alibi statute was unconstitutional. He pointed out that while the United States Supreme Court, in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), had held that the Florida notice-of-alibi statute did not offend the fifth amendment, the Court had specifically noted that the Florida statute mandated reciprocal discovery of the State's rebuttal witnesses. Further, the Court in Williams had specifically left open the question of a defendant's sixth amendment right to present witnesses on his behalf. Veal's counsel argued that because the Illinois statute did not provide the defense an opportunity for reciprocal discovery and because the defendant had a sixth amendment right to present witnesses in his behalf, the statute was unconstitutional and should not be enforced. Transcript at 6759-61.

The State argued that the attack on the constitutionality of the alibi statute was untimely. Transcript at 6760. The State went on to argue that in Williams, the Supreme Court had upheld the constitutionality of a statute "similar" to the Illinois statute. Further, they pointed out that the Illinois Supreme Court in People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634 (1970), had upheld the constitutionality of the Illinois alibi statute, despite Williams. Transcript at 6773. In response, Veal's counsel argued that the Illinois Supreme Court in Holiday had also specifically declined to rule on the sixth amendment issue. Transcript at 6774. The State responded that "we do wish to have the alibi statute complied with as the Illinois Supreme Court has stated it should be complied with, as the United States Supreme Court has stated it should be complied with." Transcript at 6774. Veal's counsel again argued that the Sixth Amendment of the United States Constitution as well as the Illinois Constitution guaranteed a defendant's right to compel the attendance of witnesses. Transcript at 6775.

The court responded:

  The answer is the Court will permit them to
  testify. The Court stated previously to defense
  counsel, I am going to treat the defense the same
  as it did the State. When the State offered a
  policeman there who wasn't on the list, I said he
  could not testify, and at that time, I asked Mr.
  Pincham, or both counsel, I stated on the record,
  gentlemen, I am going to treat the defense the
  same way as I'm treating the prosecution. I want
  to be fair to both. If you have alibi witnesses,
  submit those names. To date, they were not given.
  This is the proper time to give a list of
  witnesses.
  Mr. Adam: I'll not give them until the witness
  takes the stand.
  The Court: Then the Court will not permit them to
  testify, and that's ...

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