Gene Andrew Austad v. Henry Risley and Thomas Sellars, and Attorney General Mike Greely, Additional And

Gene Andrew Austad, who is serving a life sentence plus consecutive terms of years in Montana upon multiple felony convictions, petitioned for habeas corpus relief claiming that the state had convicted him in violation of the federal Constitution. He asserted that because of his mental condition at the time of trial he was denied due process and that the pretrial publicity created an environment in which the failure of the state court to change the venue amounted to a denial of a fair trial. He asserted a number of other alleged constitutional deficiencies in the state proceedings, all of which were carefully reviewed by the district court. Austad appeals only the issues of denial of a change of venue and fitness' to stand trial.

The initial question of Austad’s mental fitness to stand trial was essentially *429 one of fact. Head injuries sustained by Austad as a result of a high speed police chase left him with residual brain damage. He claimed also to be suffering from amnesia and pain and having difficulty in communicating with his counsel. A comprehensive pretrial hearing was conducted by the state court on the fitness issue. The court compiled a voluminous- record of…

dissenting.

I respectfully dissent. The majority today affirms a district court’s denial of a petition for habeas corpus despite the fact that no federal court has reviewed the prejudicial pretrial publicity exhibits contained in the state court record. 1 It does so- on the authority of the Supreme Court’s recent decision in Patton v. Yount, — U.S. -, 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984). Yet, the Court’s opinion in Patton makes it abundantly .clear that every federal court which dealt with the case — every.tier of the federal judiciary, including the Supreme Court — carefully reviewed the relevant portions of the state court record, including all pretrial publicity exhibits. In the district court, a hearing was held before a magistrate, id. at-, 104 S.Ct. at 2887 , and the district court made an “independent review of the record,” Yount v. Patton, 537 F.Supp. 873, 876 (W.D.Pa.1982). The Third Circuit “independently examined the nature of the publicity surrounding the second trial, the testimony at voir dire of the venire as a whole, and the voir dire testimony of the jurors eventually seated.” Patton, — U.S. at-, 104 S.Ct. at 2887 . Finally, the Supreme Court made a thorough…

739 F.2d 428 Gene Andrew AUSTAD, Petitioner-Appellant, v. Henry RISLEY and Thomas Sellars, Respondents-Appellees, and Attorney General Mike Greely, Additional Respondent and Appellee. No. 83-3933. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, 1984. Decided July 31, 1984. Curtis G. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for petitioner-appellant. Margaret M. Joyce Johnson, Asst. Atty. Gen., Helena, Mont., for respondents-appellees. Appeal from the United States District Court for the District of Montana. Before WRIGHT, GOODWIN and NORRIS, Circuit Judges. GOODWIN, Circuit Judge. 1 Gene Andrew Austad, who is serving a life sentence plus consecutive terms of years in Montana upon multiple felony convictions, petitioned for habeas corpus relief claiming that the state had convicted him in violation of the federal Constitution. He asserted that because of his mental condition at the time of trial he was denied due process and that the pretrial publicity created an environment in which the failure of the state court to change the venue amounted to a denial of a fair trial. He asserted a number of other alleged constitutional…