motions to sever

In the early morning hours of January 10, 1960, six men were playing poker in the basement of John Gladson's home in Lee's Summit, Missouri, when three or four masked men armed with a shotgun and pistols broke in and robbed each player of money and personal property before fleeing in a car belonging to one of the victims. Shortly afterward the stolen car was found abandoned in a field, and four men including petitioner Bob Fred Ashe were arrested that same morning. Ashe was first brought to trial on May 17, 1960, on a charge of robbing one of the players, Donald Knight. The State called Knight and three of his fellow poker players as prosecution witnesses. Each of them described the circumstances of the holdup and itemized his own individual losses. The State's evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner's uncle by marriage, said that at the "patrol station" he had positively identified each of the other three men accused of the holdup, but could say only that the petitioner's voice "sounded very much like" that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his "size and height, and his actions." The petitioner's defense was an alibi. The defense offered no testimony and waived final argument. The jury—though not instructed to elaborate upon its verdict—found the petitioner "not guilty due to insufficient evidence." Six weeks later the petitioner was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The witnesses were for the most part the same, though this time their testimony was substantially stronger on the issue of the petitioner's identity. For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary. The Supreme Court of Missouri affirmed the conviction, holding that the "plea of former jeopardy must be denied." A collateral attack upon the conviction in the state courts five years later was also unsuccessful. The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. The District Court denied the writ. The Court of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey. The Supreme Court granted certiorari to consider the important constitutional question this case presents.

Petitioners Daniel D. Glasser, Norton I. Kretske, and Samuel H. Roth, together with Louis Kaplan and Anthony Horton, were found guilty upon an indictment charging them with a conspiracy to defraud the United States under § 37 of the Criminal Code. Glasser had served as assistant United States attorney in charge of liquor cases from March 1935 until April 1939. Kretske assisted him from October 1934 until April 1937 before entering private practice. Roth was a private attorney. Kaplan was an automobile dealer reputedly engaged in the illicit alcohol traffic. Horton was a professional bondsman. The second count alleged that the defendants conspired to defraud the United States of its governmental function to be honestly represented in court free from corruption. This was to be accomplished by soliciting payments to influence Glasser and Kretske in their official duties. Before trial all defendants moved to quash the indictment on the grounds that the grand jury was illegally constituted because women were excluded and that the indictment had not been properly returned in open court. Glasser, Kretske, and Roth also demurred. The motions and demurrers were overruled. Trial began on February 5, 1940. After Kretske's counsel sought a continuance that was denied, McDonnell was appointed Kretske's attorney. On February 6, after Kretske expressed dissatisfaction, the court appointed William Scott Stewart, who had already entered an appearance for Glasser, to represent Kretske as well. Glasser objected on the record, stating that he wanted his own lawyer representing him. He noted inconsistencies in the defense because statements about payments to take care of Glasser would not be binding on him and could create an impression that the defendants were together. After further discussion Stewart was appointed for Kretske and represented both defendants throughout the month-long trial. The government called witnesses including accountant Brantman, who testified he gave Kretske $3000 on behalf of Abosketes, Abosketes himself, Frank and Anthony Hodorowicz, Edward Dewes, and others who described payments to Kretske to fix liquor-violation cases, references to "Red" or the red-head, and Roth's representation of defendants in those matters. The jury, composed of six men and six women, returned a guilty verdict on March 8, 1940. Glasser and Kretske received sentences of fourteen months' imprisonment and Roth was fined $500. The Seventh Circuit affirmed the convictions of Glasser, Kretske, and Roth. Glasser and Roth filed affidavits alleging that women on the petit jury panel had been drawn exclusively from the membership of the Illinois League of Women Voters. The record is barren of any actual tender of proof on the motion for new trial. The Supreme Court granted certiorari.

In the early morning hours of March 20, 1970, respondent Bursey and petitioner Weatherford, an undercover agent for the South Carolina State Law Enforcement Division, along with two others, vandalized the offices of the Richland County Selective Service in Columbia, South Carolina. Police were advised of the incident by Weatherford. Weatherford was arrested and charged along with Bursey to maintain his undercover status and his capability of working on other current matters. Weatherford was immediately released on bond and, continuing the masquerade, retained attorney Frank Taylor, Sr. Bursey was later released on bond and retained his own counsel, C. Rauch Wise. On two occasions thereafter and prior to trial, Weatherford met with Bursey and Wise, and the approaching trial was discussed. The District Court found that on neither occasion did Weatherford seek information from Bursey or his attorney or initiate the meetings. Weatherford was brought into the meetings by Bursey and Wise in an effort to obtain information about the plaintiff's defense. Weatherford advised them he would obtain a severance on the ground that he might be prejudiced by Bursey's reputation. Bursey and Wise raised the question of a possible informer but never asked Weatherford if he were an informer. At no time did Weatherford discuss with or pass on to his superiors or to the prosecuting attorney any details or information regarding Bursey's trial plans, strategy, or anything having to do with the criminal action pending against Bursey. Until the day of trial the prosecuting attorney did not plan to use Weatherford as a witness. Weatherford had not expected to be a witness and had anticipated continuing his undercover work. Weatherford was called for the prosecution and testified as to his undercover activities and gave an eyewitness account of the events of March 20, 1970. Bursey took the stand, was convicted, and then disappeared until apprehended some two years later, at which time he was incarcerated and forced to serve his 18-month sentence. Bursey then filed suit under 42 U.S.C. § 1983 against Weatherford and Strom. Strom was the head of the South Carolina State Law Enforcement Division. Bursey asserted that the defendants had deprived him of his right to the effective assistance of counsel guaranteed him by the Sixth and Fourteenth Amendments as well as of his right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. The case was tried without a jury. The District Court found for the defendants in all respects and entered judgment accordingly. The Court of Appeals for the Fourth Circuit reversed, and the Supreme Court granted the petition for certiorari filed by Weatherford and Strom.

The respondent, Joe O’Neil, was arrested along with a man named Runnels when the police of Culver City, California, answered a midnight call from a liquor store reporting that two men in a white Cadillac were suspiciously cruising about in the neighborhood. The police responded to the call, spotted the Cadillac, and followed it into an alley where a gun was thrown from one of its windows. They then stopped the car and apprehended the respondent and Runnels. Further investigation revealed that the car had been stolen about 10:30 that night in Los Angeles by two men. They had forced its owner at gunpoint to drive them a distance of a few blocks and then robbed him of $8 and driven off. The victim subsequently picked Runnels and the respondent from a lineup, positively identifying them as the men who had kidnaped and robbed him. Arraigned on charges of kidnaping, robbery, and vehicle theft, both the respondent and Runnels pleaded not guilty, and at their joint trial they offered an alibi defense. Each told the same story: they had spent the evening at the respondent’s home until about 11 p. m., when they had left together. While waiting at a bus stop they were picked up by a friend driving a white Cadillac, and he offered to lend them the car for a few hours while he went into a nightclub. Another police officer testified that after the arrest Runnels had made an unsworn oral statement admitting the crimes and implicating the respondent as his confederate. When Runnels took the stand in his own defense, he was asked on direct examination whether he had made the statement, and he flatly denied having done so. He also vigorously asserted that the substance of the statement imputed to him was false, and he was then intensively cross-examined by the prosecutor but stuck to his story in every particular. The jury found both defendants guilty as charged. After unsuccessful efforts to set aside the conviction in the California courts, the respondent applied for federal habeas corpus relief in the United States District Court for the Northern District of California. While the case was pending there this Court decided Bruton v. United States and Roberts v. Russell, the District Court ruled that the respondent’s conviction had to be set aside, the Court of Appeals for the Ninth Circuit affirmed, and the Supreme Court granted certiorari.