Groppi v. Wisconsin Briefs and Appendix

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In t h e

(Emtrt of tljr States
October Teem, 1968 

No.

James E dmund Groppi, 

— vs.—

&.&& 3
Appellant,

State of W isconsin,
Respondent.

ON APPEAL FROM THE SUPREME COURT OF WISCONSIN

JURISDICTIONAL STATEMENT

T homas M. Jacobson
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

Robert E. Sutton
710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Jack Greenberg
M ichael Meltsner
H aywood Burns 

10 Columbus Circle 
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Appellant





TABLE OF CONTENTS

Opinion Below ...................................................................... 1

Jurisdiction .......................................................................... 1

Constitutional and Statutory Provisions Involved .... 2

Question Presented ............................................................  2

Statement .............................................................................. 3

1. Events Prior to Appellant’s Charge for Re­
sisting Arrest ........................................................  3

2. The Resisting Arrest Charge ............................  5

3. Proceedings in Trial Court ................................. 7

How the Federal Questions Were Raised and De­
cided Below ......................................................................  10

The Federal Questions Are Substantial ....................... 13

I. W.S.A. §956.03(3) Denies Appellant’s Four­
teenth Amendment Right to a Fair Trial by 
Totally Prohibiting a Change of Venue in a 
Serious Criminal Prosecution Regardless of the 
Extent of Community Prejudice ......................... 14

II. For Purposes of Change of Venue There Is No 
Rational Basis for a Distinction Between Per­
sons Charged With a Felony and Persons 
Charged With a Misdemeanor ............................  23

Conclusion ..................................................................................  26

A ppendix

Opinion of the Supreme Court of Wisconsin .......  la

PAGE



11

Table of Cases

Baxstrom v. Herold, 383 U.S. 107 (1966) .......
Beck v. Winters, 407 F.2d 125 (8th Cir. 1969)

... 23 
17, 25

PAGE

Duncan v. Louisiana, 391 U.S. 145 (1968) ....14,15,16,17, 25

Edwards v. South Carolina, 372 U.S. 229 (1963) .......  19

Gideon v. Wainright, 372 U.S. 335 (1963) ................... 17
Gregory v. Chicago, ------  U.S. ------ , 22 L.ed. 2d 134,

89 S. C t.------  (1969) ......................................................  19
Gulf, Colorado and Santa Fe Ry. v. Ellis, 165 U.S.

150 (1897) ........................................................................  23

Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965) .... 25

In Re Murchison, 349 U.S. 133 (1955) ....................... 14
Irvin v. Dowd, 366 U.S. 717 (1961) .......................14,19,20

James v. Headley,------ F .2d -------- (5th Cir. 1969) .......  25

Kurtz v. Moffitt, 115 U.S. 487 (1885) ............................. 24

Mason v. Pamplin, 232 F. Supp. 539 (Tex. 1964) af­
firmed sub nom. Pamplin v. Mason (5th Cir. 1966),
364 F.2d 1 ..........................................................................  21

Parker v. Gladden, 385 U.S. 363 (1966) ......... .............  14
People v. Causley, 399 Mich. 340, 300 N.W. I l l  (1941) 24
Pointer v. Texas, 380 U.S. 400 (1965) ...........................  14

Rideau v. Louisiana, 373 U.S. 723 (1963) ...................14,20

Sheppard v. Maxwell, 384 U.S. 333 (1966) ...............14,23



Ill

PAGE

Shuttle sworth v. Birmingham, 373 U.S. 262 (1963),
376 U.S. 339 (1964); 382 U.S. 87 (1965); ------ U.S.
------ , 22 L.ed. 2d 162, 89 S. Ct. —  (1969) .............  19

Sibron v. New York, 392 U.S. 40 (1968) ....................... 2
Skinner v. Oklahoma, 316 U.S. 536 (1942) ................... 23
State ex rel. Gaynon v. Krueger, 31 Wis.2d 609, 143

N.W 2d 437 (1966) .........................................................  15
State ex rel. Plutshak v. State Dept, of Health and 

Social Services, 37 Wis.2d 713, 155 N.W.2d 567
(1968) ................................................................................  17

State ex rel. Rico v. Biggs, 198 Ore. 143, 255 Pac.2d
1055 (1953) .........................................................  22

State v. Nutley, 24 Wis.2d 527, 129 N.W.2d 155 (1964) 15

Thompson v. Louisville, 362 U.S. 199 (1960) ...............  21
Turner v. Louisiana, 379 U.S. 466 (1965) ....................... 14

Washington v. Texas, 388 U.S. 14 (1967) ....................... 14

Table of

Constitutional and Statutory Provisions

W.S.A. Constitution Art. 1, §7 ....................................... 15
W.S.A. §939.60 (1967) ...................................................... 13, 24
W.S.A. §946.41 ......................................................................  3
W.S.A. §956.03(3) ................... 1 ,2,8,9,10,11,13,14,15,17,

18,19, 20, 21, 24
28 U.S.C. §1257(2) ..............................................................  1
28 U.S.C. §2103 ..................................................................  2



IV

Other A uthorities
page

Standards Relating to Fair Trial and Free Press, 
(A .B A . Project on Minimum Standards for Crim­
inal Justice, 1966) ........................................................%

Goebel, Felony and Misdemeanor (1937) ....................... 24
Constitutional and Sattutory Provisions Involved....... 2

phrase “all criminal prosecutions” applies not only to



In t h e

totpnmtT (Hmtrt of t o  Hutted States
October Term, 1968 

No..............

James E dmund Groppi,
Appellant,

—vs.—

State of W isconsin,
Respondent.

ON APPEAL FROM THE SUPREME COURT OF WISCONSIN

JURISDICTIONAL STATEMENT

Opinion Below

The opinion of the Supreme Court of Wisconsin is 
reported at 41 Wis.2d 312, 164 N.W. 2d 266 (1969) and 
is set forth in the Appendix, infra pp. la-24a.

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1257(2), this heing an appeal which draws into 
question the validity of W.S.A. §956.03(3) infra, p. 2, 
on the ground that it is repugnant to the Constitution 
of the United States.

Appellant was convicted of resisting arrest in the Cir­
cuit Court of Milwaukee County. A change of venue and 
motion to dismiss were denied on the ground that W.S.A. 
§956.03(3) did not permit a change of venue in a misde­



2

meanor case. On appeal, his conviction and sentence were 
affirmed on February 4, 1969. On April 1, 1969 a petition 
for rehearing was denied. Timely notice of appeal to this 
Court was filed in the Supreme Court of Wisconsin on 
May 6, 1969. As the Supreme Court of Wisconsin explicitly 
rejected appellant’s challenge to W.S.A. §956.03(3), this 
matter is appropriately brought to this Court by appeal. 
See e.g. Sibron v. New York, 392 U.S. 40 (1968).

In the event that the Court does not consider appeal 
the proper mode of review, appellant requests that the 
papers whereupon this appeal is taken be regarded and 
acted upon as a petition for writ of certiorari pursuant 
to 28 U.S.C. §2103.

Constitutional and Statutory Provisions Involved

This case involves the Sixth and Fourteenth Amend­
ments to the Constitution of the United States.

This case also involves §956.03(3) of Wisconsin Stat­
utes, which states:

If a defendant who is charged with a felony files his 
affidavit that an impartial trial cannot be had in the 
county, the court may change the venue of the action 
to any county where an impartial trial can be had. 
Only one change may be granted under this sub­
section.

Question Presented

Whether W.S.A. §956.03(3), which prohibits Wisconsin 
trial courts from granting a change of venue when an 
impartial trial cannot be had because of community prej­
udice in a misdemeanor case, violates the Due Process 
and Equal Protection Clauses of the Fourteenth Amend­
ment?



3

Statement

Appellant James E. Groppi, a Roman Catholic priest, 
was charged with resisting arrest under W.S.A. $946.41, 
a misdemeanor punishable by a maximum of one year 
imprisonment in a county jail and a five hundred dollar 
fine, as a result of an incident arising out of a civil rights 
march in Milwaukee, Wisconsin on August 31, 1967 (R. 22, 
90, 92).1 Father Groppi was convicted by a jury of re­
sisting arrest on February 9, 1968 (R. 175) and sentenced 
to six months in prison and a fine of five hundred dollars. 
The six month sentence was stayed and appellant was 
placed on two years probation (R. 185). If the five-hundred 
dollar fine were not paid within twenty-four hours, appel­
lant was to serve an additional six months in prison.

On February 4, 1969, the Supreme Court of Wisconsin 
affirmed appellant’s conviction and sentence. Chief Judge 
Hallows, concurred, and Judges Heffernan and Wilkie dis­
sented. A  petition for rehearing was denied on April 1, 
1969.

1. Events Prior to Appellant’s Charge for Resisting Arrest.

Prior to and during the incidents that led to his arrest, 
appellant was advisor to the Youth Council of the Mil­
waukee Chapter of the National Association for the Ad- 1

1 Specifically, appellant was charged with:
Unlawfully, knowingly resist [ing] Wilfred Buchanan, duly 
appointed and qualified, and acting police officer of the City 
of Milwaukee, in said county, while the said Wilfred Buchanan 
was then and there engaged in doing an act in his official 
capacity, and with lawful authority, to wit: . . . while said 
defendant was being carried to a police wagon, after being 
placed under arrest, said defendant began kicking his legs, 
striking said officer, Wilfred Buchanan in the body with his 
foot, that said defendant [swore at Wilfred Buchanan] (R. 20)



4

vancement of Colored People (hereinafter NAACP), a 
group active in the Milwaukee area in support of efforts 
of Negro citizens to obtain equal civil rights.

On August 30, 1967, the Mayor of Milwaukee issued a 
proclamation prohibiting all “marches, parades, demon­
strations, or other similar activities” in Milwaukee be­
tween the hours of 4 P.M. and 9 A.M. for a thirty-day 
period (R. 55). The proclamation was the Mayor’s re­
sponse to several civil rights demonstrations and marches 
in the Milwaukee area “ for a fair housing bill, to consider 
the right of movemnet within the confines of our coun­
try . . .” (R. 93).

On August 31, 1967, Father Groppi along with “an as­
sembly of black and white people from the community met 
at St. Boniface’s Church (located at the corner of North 
11th and West Meinecke] to discuss the Mayor’s Proclama­
tion, the demonstrations, and the arrest of Youth Council 
members and the people of the community on the previous 
night” (R. 93). Between 7 P.M. and 8 P.M. three to four 
hundred persons from that assembly decided to march from 
the church to City Hall in order to “ question the Mayor 
on the Proclamation” (R. 95). They marched very slowly 
in a peaceful and orderly fashion (R. 36), three or four 
abreast, arms locked, south on North Eleventh Street 
(R. 22, 30, 36, 90). Father Groppi was one of those at 
the head of the march (R. 103). The group turned east 
on West North Avenue, and continued marching (R. 30, 
36).

While the group was still on North Eleventh Street, 
prior to marching down West North Avenue, Inspector 
Ullius of the Milwaukee Police Department announced that 
the march was in violation of the Mayor’s proclamation 
(R. 31). Although Ullius used a bullhorn and repeated a



5

demand that the marchers disperse, he testified that be­
cause of the “ singing and booing,” he did not know how 
many marchers actually heard the warning (R. 31, 35). 
Appellant himself testified that he did not recall hearing 
any warning, although he did not deny that in fact it might 
have been given (R. 91, 103).

When the march continued Inspector Ullius ordered 
“ police action to stop the march” (R. 32, 36). Patrolman 
Armando Brazzoni, who had been walking alongside Father 
Groppi, immediately arrested the appellant (R. 37, 49) by 
“grabb[ing]” him “ around the right shoulder and collar” 
(R. 56). There is no contention that Father Groppi offered 
any resistance. Patrolman Brazzoni and a Sergeant Miller 
took Father Groppi to a waiting paddy wagon (R. 41, 57). 
After walking some twenty or thirty yards with the of­
ficers, and as he approached the paddy wagon (R. 105) 
Father Groppi “ became limp in body and sat in the street” 
(R. 41, 57, 91). Father Groppi’s “going limp” was not 
contested (R. 106)2 nor was it a basis for the resisting ar­
rest charge (R. 165, 167).

2. The Resisting Arrest Charge.

Events subsequent to Father Groppi’s “ going limp” 
formed the basis of the charge of resisting arrest (R. 165, 
167). The police and appellant’s version of these events 
were in sharp conflict. The State called as witnesses the 
three police officers who “ carried” Father Groppi from his 
“limp” position on the street to the paddy wagon (R. 41, 
56, 73). Defense counsel called Father Groppi (R. 91), two 
newspaper reporters (R. 133, 138), and three marchers

2 When asked why he went limp, Father Groppi responded, “ I 
was arrested a number of times in Civil Rights demonstrations, 
going limp, does not constitute resisting arrest and I went limp” 
(R. 106).



6

(R. 116, 141, 151), all of whom, were near Father Groppi 
when the alleged resistance occurred (R. 95, 134, 138, 121, 
144, 155).

Patrolman Brazzoni, testified that after giving his shot­
gun to another officer (R. 57) he picked Father Groppi up 
from his limp position by the “upper part of the body, by 
the shoulders” (R. 42). At the same time Sergeant Miller 
picked up his right leg and Officer Buchanan his left leg 
(R. 42). Buchanan had his night stick in a hand that was 
around Groppi’s leg (R. 75, 78, 79). The officers then car­
ried Father Groppi to the paddy wagon (R. 42, 57, 75). 
Sergeant Miller testified that as they neared the wagon 
“Father Groppi suddenly became violent . . . He kicked out 
with his left leg at Officer Buchanan, catching him in the 
chest and he [appellant] hollered out, ‘let go of my leg
you--------- .’ ” (R. 44). Officer Brazzoni testified similarly
but added that Father Groppi was kicking his feet “ in a 
motion, like pedaling a bicycle” during the entire time he 
was being carried (R. 58-60). When they arrived at the 
wagon, Father Groppi’s “body jerked.” “ I don’t know what 
caused the jerk” (R. 60). He stated that as Father Groppi 
jerked he said, “I want that man’s badge number” (refer­
ring to Officer Buchanan) (R. 62). Buchanan’s testimony 
did not materially differ from Brazzoni’s. He stated that 
Father Groppi’s jerk or kick landed on Buchanan’s chest, 
pushing him to one knee (R. 76).

Father Groppi denied the officer’s version of the facts. 
While being carried to the wagon “ My foot began to hurt. . . 
as if someone were digging their fingernails into my fo o t . . . 
(R. 96). The gouging continued and as he arrived near 
the wagon he said to officer Brazzoni: “he is gouging his 
fingers into my foot,” and asked, “what is that officer’s 
[Buchanan’s] badge number . . .  I noticed he wasn’t wear­
ing a badge. . . .”  Officer Brazzoni said “ that is for you



7

to find out.”  (R. 97).3 Groppi conceded that he “ did react 
to the pressure placed on his leg” but only by attempting 
to wiggle his foot free of the gouging. He flatly denied, 
however, that he had “kick[ed] the officer in the chest.” 
(R. 98-99)

A reporter for the Milwaukee Journal, who was ap­
proximately 15 to 20 feet from the paddy wagon, testified 
that “at no time when I was in the vicinity, did I hear him 
use any profanity” . (R. 133-134) The Chief photographer 
from WISN T.V., who was also standing fifteen feet from 
the paddy wagon, stated that he did not see Father Groppi 
kick a police officer or hear him use profanity (R. 138).

Three other defense witnesses all of whom were arrested 
as marchers, testified that they saw no kicking and heard 
no profanity. On the contrary, they stated that Father 
Groppi was complaining about the “gouging of his foot 
while being carried” (R. 120-21, 144-147, 155). Prentice 
McKinney said he heard Father Groppi “telling the other 
officer to make this— this other officer quit gouging his leg” 
(R. 144). Mike Cullen testified that appellant called out 
“my leg, my leg” as he was carried to the paddy wagon. 
Terry Astuto heard appellant say that an officer was “goug­
ing out my foot” (R. 122).

3. Proceedings in Trial Court.

On September 26, 1967 appellant moved for a change of 
venue from the Circuit Court of Milwaukee County. The 
motion stated, inter alia, that the defendant “ requests that 
[the] Court take judicial notice of the massive coverage 
by all news media . . .  or in the alternative that the defend­
ant be permitted to offer proof of the nature and extent

3 Officer Buchanan was asked on cross-examination why he didn’t 
wear a badge on the night of August 31. He responded that he 
was “under orders from the Department” not to wear one and he 
further stated, “ I don’t question my superiors.” (R. 77)



8

thereof . . In an affidavit he alleged that he had received 
massive and frequently adverse news coverage and pub­
licity, as well as critical editorials, by all of the news 
media in Milwaukee County. The motion was denied by 
the trial judge “because this is a misdemeanor case and 
not a felony. And the Wisconsin statute does not provide 
for a change of venue in a misdemeanor matter.” (Ruling 
on Motion for Change of Venue, October 2, 1967). On 
December 11, 1967, appellant entered a plea of not guilty, 
but soon after his trial began a juror became ill and a mis­
trial was declared. The case was continued to February 8, 
1968.

On January 10, 1968, appellant filed a motion to dis­
miss on the grounds that the Wisconsin statute which pro­
vided for a change of venue, W.S.A. §956.03(3), was un­
constitutional because it prohibited a change of venue in 
misdemeanor prosecutions.4 Appellant also moved to dis­
miss the resisting arrest charge on the ground that the 
Mayor’s proclamation prohibiting all demonstrations in the 
City of Milwaukee was unconstitutional (R. 14), but this 
motion was subsequently withdrawn on the ground that 
the question was pending before a federal court (R. 14).

On February 8, 1968, the Circuit Court of Milwaukee 
County denied the “motion to dismiss on the grounds of 
§956.03(3) that it is unconstitutional” (R. 18). Subse­
quently, this colloquy took place:

Mr. Jacobson [Defense Counsel] : On that last mo­
tion Your Honor, to make sure for the record, they had 
a—

4 Section 956.03(3) states:
If a defendant who is charged with a felony files his affidavit 
that an impartial trial cannot be held in the county, the 
court may change the venue of the action to any county 
where an impartial trial can he had. Only one change may 
be granted under this subsection.



9

The Court: The prior— [referring to prior hearing 
on Oct. 2]

Mr. Jacobson: The basis for this particular motion 
the Court denied a change of venue, because of com­
munity prejudice, and the rationale of the Court was 
that the statute only provided a change of venue to 
community [sic] felonies, and not in misdemeanors.

The Court: That’s right.
Mr. Jacobson: Therefore at this time the defendant’s 

counsel on behalf of the Defendant, has challenged the 
constitutionality of the change of venue, to community 
prejudice statute [sic], on the basis that it is a denial 
of equal protection to criminals, or alleged criminals, 
on a basis of a serious line of demarcation, of one 
year, that is what separates a misdemeanor from a 
felony. However, we have an infraction of fundamental 
rights at issue and that, that statute has really no 
foundation, so we are attacking it on that basis, of 
equal protection.

The Court: My motion to dismiss is on the grounds 
that it is a matter for the legislature, and not the 
Courts, so the motion to dismiss on the change of venue, 
on the grounds that section is unconstitutional, because 
it provides for a change of venue, is denied. Now, that 
we have all these motions disposed of, we will proceed 
on this case, on its merits, and we will proceed to select 
a jury (R. 17-19).

After verdict of guilty was returned by the jury on Feb­
ruary 9, 1968, appellant made a motion for an order set­
ting aside the jury verdict in part on the grounds that “ the 
trial court erred in denying defendant’s motion for a change
of venue on the ground of community prejudice. . .” ; “ . . . 
that the change of venue statute, §956.03(3) is unconstitu­



10

tional that it denies to a defendant who is charged with a 
misdemeanor offense a fair trial as required by the Four­
teenth Amendment of the United States Constitution.” 
(R. 57-59). The circuit court denied the motion.

How the Federal Questions Were Raised and 
Decided Below

Prior to trial, appellant moved for a change of venue 
and to dismiss the complaint on the ground that W.S.A. 
§956.03(3), which purports to limit a change of venue to 
felony cases, violated the Fourteenth Amendment. Both 
motions were denied, the trial court at one point stating 
that:

“ . . . (T)he change of venue asked for in the motion for 
a change of venue will be denied; it is not being pro­
vided for in the Wisconsin Statutes . . . I ’m denying the 
motion for a change of venue because this is a mis­
demeanor case and not a felony. And the Wisconsin 
Statute does not provide for a change of venue in a 
misdemeanor matter . . .  Not in a misdemeanor matter; 
a felony only.”  (R. 10, 11)

See also the colloquy set forth at pp. 8, 9 supra. A  motion 
for a verdict of acquittal notwithstanding the verdict or, 
alternatively, for a new trial, based, inter alia, upon the 
alleged unconstitutionality of W.S.A. §956.03(3) under the 
Due Process and Equal Protection Clauses of the Four­
teenth Amendment was denied (R. 57-59).

On appeal, the Supreme Court of Wisconsin stated the 
question before it as follow s:



11

Is sec. 956.03(3), Stats., unconstitutional either on its 
face or as applied in this case? (infra, p. 2a)

The court then stated appellant’s contentions concerning 
the statute as it understood them:

Appellant claims the change of venue statute is 
unconstitutional on several different grounds: First, 
that the statute, on its face, is a violation of due process 
as guaranteed by the Wisconsin and federal constitu­
tions; second, that the face of the statute violates the 
equal protection clause of the federal constitution. And, 
finally, it is contended that the statute was unconsti­
tutionally applied in this case. In all cases, the reason 
for the alleged unconstitutionality is the same, i.e., 
that the change of venue based on community prejudice 
is limited to felony cases, (infra, p. 3a)

The majority opinion of Supreme Court squarely rejected 
appellant’s contention:

We think that there is a sufficient difference between 
a felony and a misdemeanor to warrant the distinction 
. . . Moreover, it would be extremely unusual for a 
community as a whole to prejudge the guilt of any per­
son charged with a misdemeanor. Ordinarily com­
munity prejudice arises when a particularly horrendous 
crime has been perpetrated. These are the only crimes 
that receive widespread and prolonged attention from 
the news media. But the general public just does not 
become incensed at the commission of a misdemeanor.

The court also takes judicial notice of the vast num­
ber of misdemeanors that are prosecuted as opposed 
to felonies. As a matter of necessity, the prosecution 
of misdemeanors has been simplified as much as pos­
sible by the legislature. This is not because the legis­



12

lature is not concerned with justice, but because society 
demands that efficiency in the administration of justice 
be given consideration along with absolute fairness. 
(infra, pp. 3a, 4a).

Chief Judge Hallows concurred. He agreed with the 
dissenting Judges that “ an accused lias a constitutional right 
to a fair trial in misdemeanor cases and to attain that end 
may have a change of venue if he shows community prej­
udice” but concluded that appellant had not been sufficiently 
prejudiced to require reversal (infra, p. 11a).

Judges Heffernan and Wilkie dissented:

The majority opinion concludes that it is just and 
proper to afford fewer constitutional guarantees of 
fairness to a misdemeanant than to a felon. On the 
face of it, this proposition runs counter to all princi­
ples of Anglo-American jurisprudence; however, fac­
tual distinctions, it is contended, make it fair to afford 
fewer protections to one charged with a misdemeanor. 
It is asserted in the opinion of the majority of the 
Court that the penalties are more severe in the case of 
felonies. This is, of course, true, but it is a fact entirely 
irrelevant to the issue. It is, in essence, an assertion 
that an unfairness that results in only a small sentence 
is of such a minor consequence as to be de minimis. The 
mere statement of the proposition is its own refutation. 
Concededly, the legislature has seen fit to confer addi­
tional safeguards to defendants accused of major 
crimes (preliminary hearing, e .g .); however, it is pow­
erless to reduce the minimum safeguards of fairness 
that are assured by both the Wisconsin and United 
States Constitutions to all criminal defendants.

The opinion of the court also asserts that community 
prejudice is not aroused by the commission of a mis­



13

demeanor and that, therefore, a change of venue is 
needless. The simple answer to this proposition is that 
if there is no community prejudice, it is within the 
discretion of the trial judge to deny a change of venue. 
This determination is dependent upon the facts as they 
subjectively appear and not upon the objective nature 
of the crime or whether it is labeled a felony or a 
misdemeanor. The identity of the defendant and his im­
age in the community is also relevant and may be a 
determining factor in whether or not there is com­
munity prejudice, (infra, pp. 14a, 15a)

A timely petition for rehearing was denied by the Su­
preme Court of Wisconsin on April 1, 1969.

The Federal Questions Are Substantial

As construed by Wisconsin’s highest court, W.S.A. 
§956.03(3) prohibits a defendant whose constitutional right 
to a fair trial by an impartial jury is threatened by the 
existence of widespread community prejudice from ob­
taining a change of venue unless he is charged with an 
offense classified as a felony.5 This burden on the right 
to fair trial guaranteed by the federal constitution— 
solely on the basis of extent of the punishment allowable 
in a criminal case—raises serious questions under both 
the Due Process Clause and Equal Protection Clause of 
the Fourteenth Amendment to the Constitution of the 
United States. 6

6 Wisconsin law defines a felony as an offense punishable by im­
prisonment in the state prison; “ Every other crime is a misde­
meanor” W.S.A. §939.60.



14

I.

W.S.A. § 9 5 6 .0 3 (3 )  Denies Appellant’ s Fourteenth 
Amendment Right to a Fair Trial by Totally Prohibit­
ing a Change of Venue in a Serious Criminal Prosecu­
tion Regardless of the Extent of Community Prejudice.

This Court has long held that a conviction for a crime 
cannot stand where local community prejudice has im­
pugned the fairness of the trial. Irvin v. Dowd, 366 U.S. 
717, 723-728 (1961). “A fair trial in a fair tribunal is a 
basic requirement of due process.” In Re Murchsion, 
349 U.S. 133, 136 (1955). It is not surprising, therefore, 
that the right to a fair trial by an imparital jury is one 
of the Bill of Rights guarantees made binding upon the 
states by the Due Process Clause of the Fourteenth Amend­
ment.6 In Parker v. Gladden, 385 U.S. 363 (1966), the 
Court held that “ the command of the Sixth Amendment 
. . . that ‘the accused shall enjoy the right to a . . . trial 
by an impartial jury . . .’ [is] made applicable to the states 
through the Due Process Clause of the Fourteenth Amend­
ment.” (385 U.S. at 364). See also Rideau v. Louisiana, 
373 U.S. 723 (1963); Turner v. Louisiana 379 U.S. 466 
(1965); Sheppard v. Maxwell, 384 U.S. 333 (1966). In­
deed, the right to an impartial jury is recognized by the 6

6 The decision to apply a particular guarantee of the Bill of 
Rights to state criminal proceedings has depended on the deter­
mination as to whether the right is “ so fundamental and essential 
to a fair trial that it is incorporated in the Due Process Clause 
of the Fourteenth Amendment.” (emphasis supplied) Washington 
v. Texas, 388 U.S. 14 at 17-18 (1967). In Pointer v. Texas, 380 
U.S. 400 (1965) the Court stated “ [t]hat the fact that [a] right 
appears in the Sixth Amendment of our Bill of Rights reflects 
the belief of the Framers of those liberties and safeguards that 
[it is] a fundamental right essential to a fair trial in a criminal 
prosecution.” (380 U.S. at 404). See also Duncan v. Louisiana, 
391 U.S. 145 (1968). If this language provides the test, appli­
cation of the guarantee of an impartial trial necessarily follows.



15

Constitution of Wisconsin and the decisions of the W is­
consin Supreme Court. See Wise. Const., Art. 1, §7; State 
v. Nutley 24 Wis. 2d 527, 129 N.W. 2d 155 (1964).7

Although the Supreme Court of Wisconsin concluded 
that if able to adopt its own cut-off point, it would make 
a change of venue to protect an accused’s right to an im­
partial trial available in all cases where the penalty was 
greater than six months (infra p. 5a), the court felt it­
self bound by the Wisconsin legislature’s determination, 
in W.S.A. §956.03(3), that “a change of venue based on 
community prejudice” was restricted to felony cases. The 
court held: “we are not willing to say that the cut-off 
point established by the legislature is necessarily arbi­
trary and capricious.” (infra p. 5a).

In reaching this conclusion the court enumerated a num­
ber of differences between felonies and misdemeanors which 
were asserted to support the constitutionality of W.S.A. 
§956.03(3):

First, the court quoted a previous decision to the 
effect that felonies are more seriously punished crimes 
than are misdemeanors.8

Second, the court reasoned that the community only 
prejudges the guilt of a person charged with a “hor­

7 In Duncan v. Louisiana, 391 U.S. 145, 149 (1968), the Court 
held that “ trial by jury in criminal cases is fundamental to the 
American scheme of justice,” and that the Fourteenth Amendment 
guarantees a right of jury trial in all state criminal cases “which 
—were they tried in a federal court—would come within the Sixth 
Amendment’s guarantee.”

8 . . In most cases the place of imprisonment is different; the 
statute of limitations is twice as long for a felony as a misde­
meanor; one charged with a felony is entitled to a preliminary 
hearing; the stigma of a felony is'greater; and under the repeater 
statute, more severe penalties are authorized for felonies than for 
misdemeanors . . . ” State ex rel. Gaynon v. Krueger, 31 Wis. 
2d 609, 620, 143 N.W. 2d 437 (1966).



16

rendous” crime that receives “widespread and pro­
longed attention from the news media” and that “ the 
general public just does not become incensed at the 
commission of a misdemeanor.”

Third, the court argued that because of the vast 
number of misdemeanor prosecutions, efficiency in the 
administration of justice would be unduly affected by 
making available a change or venue for misde­
meanants.

Finally, the court reasoned that while both the 
federal and state constitutions guarantee the right 
to a fair and impartial trial, other methods than a 
change of venue ensure a fair trial.

The grounds advanced by the Supreme Court of Wis­
consin simply will not bear examination as support for 
a statute which decrees a total bar to any change of 
venue in any prosecution for any crime labelled a mis­
demeanor.

First. The right to a fair and impartial trial cannot 
be diluted by denying the trial court authority to change 
venue simply because the penalty actually suffered by the 
misdemeanant may—in most but not all cases—be less 
than in felony cases. We would seriously doubt that 
there is any class of criminal case, however “ petty” in 
terms of its authorized punishment, to which the basic 
due process guarantee of a fair trial by a fair tribunal 
is inapplicable. But, however that may be, appellant’s 
was not a “ petty” case by any conceivably applicable 
standard. Such is the teaching of Duncan v. Louisiana, 
391 U.S. 145, 149 (1968), where this Court concluded that 
the federal Constitution guarantees a jury trial for all 
“ serious offenses” but does not extend to “ petty crimes.”



17

While the Court declined to settle the exact location of 
the line between petty crimes and serious offenses, W is­
consin does not here claim—nor could it do so con­
vincingly, in view of its six-month rule governing the 
appointment of counsel in misdemeanors cases, State ex 
rel. Plutsliak v. State Dept, of Health and Social Services, 
37 Wis.2d 713, 155 N.W.2d 567 (1968), as contrasted with 
the sweeping preclusion of all misdemeanors by the terms 
of W.S.A. §956.03(3)—that appellant was charged with 
a petty offense. In Duncan, and in Gideon v. Wainwright, 
372 U.S. 335 (1963), in holding that the Sixth Amendment 
guarantee of the right to assistance of counsel is appli­
cable to the states through the Fourteenth Amendment, 
the Court did not draw a line between felonies and mis­
demeanors as does W.S.A. §956.03(3). What the Eighth 
Circuit has said, construing Gideon, is applicable here:

Indeed, consideration of the opinion in context leads 
us to conclude that the right to counsel must be recog­
nized regardless of the label of the offense if, as here, 
the accused may be or is subjected to deprivation of 
his liberty for a substantial period of time. . . .  It 
should be remembered that the Sixth Amendment makes 
no differentiation between misdemeanors and felonies. 
The right to counsel is not contingent upon the length 
of the sentence or the gravity of the punishment. 
Rather, it provides that the guarantee extends to “all 
criminal prosecutions.” Furthermore, we note that the 
phrase “ all criminal prosecutions” applies not only to 
the right to counsel but also to the right to a jury 
trial. Logically the phrase should be accorded the 
same meaning as applied to both protections. Beck 
v. Winters, 407 F.2d 125, 128 (8th Cir. 1969).

Nor does the fact that a legislature may provide a dif­
ferent statute of limitations in felony cases justify the



18

distinction drawn by W.S.A. §956.03(3) between felons 
and misdemeanants. Appellant does not argue that the 
state must try misdemeanor and felony cases identically, 
or that the state cannot treat one as a more serious vio­
lation of law than the other, but only that when the basic 
constitutional protection of fair trial is at stake, the state 
cannot arbitrarily deny the important protection provided 
by a change of venue simply because the crime—while 
serious—has a lower maximum penalty than a felony.

Second. The Wisconsin Supreme Court upheld its con­
struction of W.S.A. §956.03(3) on the ground that there is 
no likelihood of community prejudice attaching to a mis­
demeanor prosecution. But as Judges Heffernan and 
Wilkie put it in dissent: “ The simple answer to this prop­
osition is that if there is no community prejudice, it is 
within the discretion of the trial judge to deny a change 
of venue.” {infra, p. 15a). Moreover, the Supreme Court’s 
reasoning is refuted by the facts of this case. Appellant 
is a controversial figure because he has spoken out and 
participated in marches and demonstrations against racial 
discrimination in his community. It is beyond dispute that 
his goals have stirred many to anger and hostility against 
him and that his “activities” have received prolonged atten­
tion from the news media in Milwaukee. It is obvious that 
the general public has often “become incensed” , to use the 
language of the Wisconsin Supreme Court {infra, p. 4a), 
at his views and behavior just as portions of the general 
public had “become incensed” at other civil rights leaders, 
such as the late Beverend Doctor Martin Luther King. 
It is simply erroneous to assert that men like Father 
Groppi and Dr. King have so little stirred those opposed 
to them to anger as never to prejudice their right to a 
fair trial and it is no accident that cases involving civil



19

rights leaders commonly involves prosecution for alleged 
misdemeanors. See e.g., Shuttlesworth v. Birmingham, 
373 U.S. 262 (1963); 376 U.S. 339 (1964); 382 U.S. 87
(1965); ------  U.S. ------ , 22 L.ed. 2d 162, 89 S.Ct. ------
(1969); Gregory v. Chicago,------ U .S .------- , 22 L.ed. 2d 134,
89 S.Ct.------  (1969); Edivards v. South Carolina, 372 U.S.
229 (1963). Community prejudice arises when the ac­
tivities of a person or group challenge deeply felt beliefs 
and feelings. It does not depend on whether a criminal 
charge arising out of civil rights activity is classified by 
state law as a misdemeanor or a felony.

It is plain that in cases such as this involving a public 
figure whose civil rights activity is tied to a controversial 
social issue—where the personal and political leanings of 
the jury will often be antagonistic to the defendant— the 
potential for an adverse factual determination of con­
flicting testimony is great. In civil-rights-related prose­
cutions this situation is not uncommon. But because of 
the accepted limitations of federal and state appellate 
review of factual determinations by state trial courts, 
the only effective remedy is to guarantee the accused the 
right to have the crucial factual determination of guilt 
or innocence made initially by “ impartial ‘indifferent’ 
jurors” Irvin v. Dowd, supra at 366 U.S. 722. Trial by 
twelve jurors representing a cross-section of a community 
less subjected to adverse publicity does not ensure that 
justice will be done but it does dilute the effect of any 
particularized bias and tends to make it likely that per­
sons not unfairly antagonistic to the accused will partic­
ipate in the fact-finding process.

Third. The Supreme Court of Wisconsin reasoned that 
the exclusion of misdemeanor cases from the change of 
venue authorized by §956.03(3) promotes “ efficiency in the 
administration of justice” (infra p. 4a) in view of the large



20

numbers of misdemeanor prosecutions. Such arguments 
did not deter this court from extending the right to jury 
trial to misdemeanants in Duncan, supra. But granting the 
premise that a lot of misdemeanor cases are prosecuted, 
and hence potentially affected by a change-of-venue rule, 
it is difficult to see why motions for a change in venue 
should be automatically withheld from all persons charged 
with misdemeanors. The notion that authorizing trial 
judges to grant or deny a change of venue in their discre­
tion will open the floodgates to disruption in the adminis­
tration of justice is unreal. Indeed, an authoritative study 
has concluded that motions are rarely granted even in felony 
prosecutions. Standards Relating to Fair Trial and Free 
Press, 121 (A.B.A. Project on Minimum Standards For 
Criminal Justice, 1966). It is plain that only very few 
of the many misdemeanor cases prosecuted could con­
ceivably give rise to a colorable claim for a change in 
venue; and, if such claims were advanced in number, trial 
courts would still retain enormous latitude to deny the 
applications.

The final reason given by the Supreme Court of Wisconsin 
for upholding W.S.A. §956.03(3) is that appellant had a 
sufficient remedy to protect his right to a fair and impartial 
trial by means of voir dire inquiry, a motion for a continu­
ance, or a motion to set aside the verdict after trial. To 
conceive the constitutional right to an impartial trial tliusly 
is to misconceive it and to ignore the intimate relationship 
between the right and the remedy of a change of venue. 
I f voir dire inquiry, or a continuance, satisfactorily pro­
tected the right, then there would never be need for a change 
of venue in any case, felony or misdemeanor. The plain 
fact is, as explicitly recognized by this Court in Rideau v. 
Louisiana, 373 U.S. 723, 726 (1963), and Irvin v. Dowd, 366 
U.S. 717 (1961), that it is often impossible to determine, 
much less defeat, the subtle operation of prejudice in a



21

criminal trial in a particular community. The constitu­
tional right to a fair trial, therefore, properly implies a 
right to a jury drawn from a community which has not been 
so exposed to prejudice that it will not likely be able to 
base its verdict on the evidence developed at trial, cf. 
Thompson v. Louisville, 362 U.S. 199 (1960); not merely a 
right to reversal if actual prejudice is shown. In some cases, 
a defendant may be able to obtain a fair trial panel by in­
terrogation, or in others to put off the trial until prejudice 
is neutralized without undue cost to his constitutional right 
to a speedy trial, or in others to prove that he did not in 
fact receive a fair trial at the hands of a particular jury.9 
Perhaps in such cases a motion for change of venue would 
be properly denied, but there are also cases where these 
protective devices will be unavailing. By upholding W.S.A. 
§956.03(3), Wisconsin has determined that persons charged 
with misdemeanors can in no case receive what in some 
cases may be the only remedy that can assure them a fair 
and impartial trial.

It is of interest that the only decisions we have found 
squarely on point uphold appellant’s view that the Supreme 
Court of Wisconsin erred in sustaining W.S.A. §956.03(3) 
as consonant with Fourteenth Amendment requirements. 
In one case, the facts are strikingly similar. Mason v. Pamp- 
lin, 232 F. Supp. 539 (D. Tex. 1964) aff’d, sub nom. Pamplin 
v. Mason, 364 F.2d 1 (5th Cir. 1966), involved a clergyman, 
active in civil rights causes, accused of striking a police of­
ficial in the course of being arrested in connection with a

9 Common sense also rejects the notion that a defendant can 
obtain a fair trial and impartial jury by having a verdict set 
aside. Not only does this remedy put the defendant to continuous 
rounds of trial burdening both him and the state court system 
(compare infra, pp. 4a, 19a) but it fails to meet the constitutional 
requirement because it in no way ensures that the jury will ever be 
drawn from an unbiased source.



22

civil rights demonstration. His motion for a change of 
venue was denied because Texas statutes provided for 
changes of venue by reason of community prejudice only in 
felony cases. He was then tried and found guilty of ag­
gravated assault upon a police officer, a misdemeanor in 
Texas. After exhausting his state remedies, he challenged 
this conviction in a habeas corpus petition in federal court. 
The court held that the statute authorizing change of venue 
only in felony prosecutions violated the Due Process Clause 
of the Fourteenth Amendment, reasoning that under our 
system of law there is an “ inherent right of an individual to 
a change of venue” where community prejudice prevents a 
fair trial. A  fortiori there must be a right to make a show­
ing of prejudice— otherwise this vital constitutional right 
cannot be vindicated. A law which by its terms limits the 
right to make such a showing to felonies violates due process 
of law.” (232 F. Supp. at 542-543) In affirming, the Court 
of Appeals declared that:

Due process of law requires a trial before a jury drawn 
from a community of people free from inherently sus­
pect circumstances of racial prejudice against a par­
ticular defendant. (364 F.2d at 7)

The court made it clear that in its view, “ the same constitu­
tional safeguard of an impartial jury is available to a man 
denied his liberty . . . for a misdemeanor as a felony. (Ibid.)

Similarly, fifteen years ago the Supreme Court of Oregon 
declared unconstitutional on due process grounds state 
statutes permitting a change of venue in felony cases only. 
State ex rel. Rico v. Biggs, 198 Ore. 413, 255 Pac.2d 1055 
(1953). The Court recognized that the right to a fair and 
impartial trial is of constitutional dimensions and made it 
clear that any statute which attempts to limit this right 
runs afoul of the Constitution.



23

After extensive study, an American Bar Association 
Committee has recently fashioned standards for fair trial 
based on those enunciated by this Court in Sheppard v. 
Maxwell, supra. These standards, designed to guide courts 
in considering questions of change of venue, do not con­
template any distinction between felonies and misdemean­
ors, but call for action on the part of a trial court to 
protect the fairness of the trial “ whenever” partiality is 
threatened. Standards Relating to Fair Trial and Free 
Press, Section 3.2(c) p. 9 (A.B.A. Project on Minimum 
Standards for Criminal Justice, 1966). Appellant submits 
this is the proper constitutional rule and that the Supreme 
Court of Wisconsin erred in holding otherwise.

n.
For Purposes of Change of Venue There Is No Ra­

tional Basis for a Distinction Between Persons Charged 
With a Felony and Persons Charged With a Misde­
meanor.

The Equal Protection Clause of the Fourteenth Amend­
ment commands that distinctions drawn by a State— 
whether in the exaction of pains or in the allowance of 
benefits—must not be irrelevant, arbitrary or invidious. 
Where a State chooses to grant an advantage to one class 
and not to others “ [T]he attempted classification . . . 
must always rest upon some difference which bears a 
reasonable and just relation to the act in respect to which 
the classification is proposed, and can never be made 
arbitrarily and without any such basis.” Gulf, Colorado and 
Santa Fe Ry. v. Ellis, 165 U.S. 150, 155, 159 (1897). See, 
e.g., Skinner v. Oklahoma, 316 U.S. 536 (1942); Baxstrom v. 
Herold, 383 U.S. 107 (1966).



24

The lesson of this Court’s decisions construing the Equal 
Protection Clause is that there can be no difference in 
treatment among citizens unless there is a rational dis­
tinction between the classes affected. Or, to put it another 
way, where no rational distinction exists between two 
persons or classes, the law must treat them alike. By these 
standards, W.S.A. §956.03(3) is patently invidious, irra­
tional, hence unconstitutional legislation. For purposes of 
the relevant constitutional requirement of a fair and impar­
tial trial, the label attached to a crime cannot reasonably 
dictate the character of the procedural protections offered.

The irrationality of making the benefits of change of 
venue available to one class of accused citizens faced with 
community prejudice, while withholding them from another 
class is further highlighted by an examination of the terms 
involved in the classification. At early common law no 
crime was considered a felony if it did not result in a total 
forfeiture of the offender’s land or goods or both. Kurtz 
v. Mojfitt, 115 U.S. 487 (1885); People v. Causley, 399 
Mich. 340, 300 N.W. I l l  (1941). See also Goebel, F elony 
and M isdemeanor (1937). Wisconsin has defined a felony 
as “ A  crime punishable by imprisonment in the state 
prison,” W.S.A. §939.60 and a misdemeanor as “Every 
other crime,” ibid. However, there is neither historical 
consistency nor universal agreement on any principle 
which governs the selection of offenses to be felonies or 
misdemeanors. There is plainly nothing categorical about 
these categories nor anything inherent in their logic which 
would make rational the distinction that Wisconsin at­
tempts to rest upon them. Legislatures can, and from time 
to time do, change their definition of what constitutes a 
felony or misdemeanor for a variety of penological pur­
poses. Under the reasoning of the court below, they could



25

by such legislation incidentally collapse or expand the pro­
tection of the right to a fair trial. The Constitution cannot 
countenance a rule which permits such adventitious irra­
tional and arbitrary tampering with fundamental consti­
tutional rights.

From a constitutional perspective, for purposes of 
change of venue, the “ felony-misdemeanor” distinction is 
simply irrelevant. For an analogous discussion where the 
constitutional right to trial by jury and right to counsel is 
involved, see Duncan v. Louisiana, 391 U.S. 145 (1968); 
Beck v. Winters, 407 F.2d 125 (8th Cir. 1969); Harvey v. 
Mississippi, 340 F.2d 263 (5th Cir. 1965); James v. Headley,
------F .2 d -------- (5th Cir. 1969 No. 25,892). Since the line
of demarcation between felony and misdemeanor in Wis­
consin law is totally unrelated to the reasons that a change 
in venue is allowed, or may be constitutionally required, a 
statute which makes the right turn on that distinction 
violates the Equal Protection Clause.



26

CONCLUSION

For the Foregoing Reasons, Probable Jurisdiction 
Should Be Noted.

Respectfully submitted,

T homas M. Jacobson
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

Robert E. Sutton
710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Jack Greenberg
Michael Meltsner
H aywood B urns 

10 Columbus Circle 
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Appellant



APPENDIX





APPENDIX

Opinion of the Supreme Court of Wisconsin

State of W isconsin,

v .

Respondent,

James Edmund Ghoppi, 

No. 38

Supreme Court of Wisconsin 

Feb. 4, 1969

Appellant.

This appeal arises from an incident which occurred in 
the city of Milwaukee, on August 31,1967. Prior to the time 
of the incident, and more particularly on August 30, 1967, 
the mayor of Milwaukee, Henry W. Maier, caused an emer­
gency proclamation to issue which ordered that:

“ * * * marches, parades, demonstrations, or other 
similar activities are prohibited upon all public high­
ways, sidewalks, streets, alleys, parks and all other 
public ways and public grounds within the City of 
Milwaukee between the hours of 4:00 o’clock P.M. and 
9 :00 o’clock A.M., commencing on this date, Wednesday, 
August 30, 1967, at 4:00 o’clock P.M. and terminating 
thirty (30) days thereafter.”

The appellant (hereinafter referred to as the “ defen­
dant” ) Father James Edmund Groppi, was arrested on 
August 31, 1967, for allegedly violating the proclamation 
during the course of a civil rights demonstration. In the 
course of his arrest, defendant was alleged to have resisted 
the arresting officer. This appeal is concerned solely -with



2a

the charge of resisting an officer. Any reference to the 
charge resulting from the violation of the proclamation is 
purely incidental.

Prior to the commencement of the trial on the “ resisting” 
charge, defendant moved for a change of venue on the 
grounds of community prejudice. The motion was denied 
on the ground that sec. 956.03(3),1 Stats., provided for a 
change of venue for community prejudice only in felony 
matters. Resisting an officer is a misdemeanor.

Also prior to trial a subpoena was executed and served 
which ordered Henry W. Maier to appear to testify on be­
half of the defendant on February 8, 1968. That subpoena 
was subsequently quashed following a hearing which re­
sulted in the trial court’s finding that Mayor Maier could 
not offer any relevant testimony to the case before the 
court.

After a trial by jury, the defendant was determined to be 
guilty of resisting an officer. He was fined $500 and sen­
tenced to six months in the house of correction. Sentence, 
however, was stayed, and defendant was placed on two 
years’ probation. The appeal is taken from the judgment of 
conviction and the order of sentence.

H anley, Justice.

The defendant presents the following issues on this ap­
peal:

1. Is sec. 956.03(3), Stats., unconstitutional either on its 
face or as applied in this case? 1

1 “ If a defendant who is charged with a felony files his affidavit 
that an impartial trial cannot be had in the county, the court may 
change the venue of the action to any county where an impartial 
trial can be had. Only one change may be granted under this 
subsection.”

Opinion of the Supreme Court of Wisconsin



3a

2. May a trial court quash a subpoena which has been 
properly issued and served upon a witness the defendant 
desired to call in his defense?

Unconstitutionality of Sec. 956.03(3), Stats.

Appellant claims the change of venue statute is uncon­
stitutional on several different grounds: First, that the 
statute, on its face, is a violation of due process as guar­
anteed by the Wisconsin and federal constitution; second, 
that the face of the statute violates the equal protection 
clause of the federal constitution. And, finally, it is con­
tended that the statute was unconstitutionally applied in 
this case. In all cases, the reason for the alleged unconsti­
tutionality is the same, i.e., that the change of venue based 
on community prejudice is limited to felony cases.

We think that there is a sufficient difference between a 
felony and a misdemeanor to warrant the distinction.

“ * * * In most cases the place of imprisonment is 
different; the statute of limitations is twice as long for 
a felony as a misdemeanor; one charged with a felony 
is entitled to a preliminary hearing; the stigma of a 
felony is greater; and under the repeater statute, more 
severe penalties are authorized for felonies than for 
misdemeanors. * * * ” State ex rel. Gaynon v. Krueger 
(1966), 31 Wis.2d 609, 620, 143 N.W.2d 437, 443.

Moreover, it would be extremely unusual for a community 
as a whole to prejudge the guilt of any person charged with 
a misdemeanor. Ordinarily community prejudice arises 
when a particularly horrendous crime has been perpetrated. 
These are the only crimes that receive widespread and pro­

Opinion of the Supreme Court of Wisconsin



4a

longed attention from the news media. But the general 
public just does not become incensed at the commission of 
a misdemeanor.

[1] The court also takes judicial notice of the vast num­
ber of misdemeanors that are prosecuted as opposed to 
felonies. As a matter of necessity, the prosecution of mis­
demeanors has been simplified as much as possible by the 
legislature. This is not because the legislature is not con­
cerned with justice, but because society demands that ef­
ficiency in the administration of justice be given considera­
tion along with absolute fairness.

This court faced a decision similar to the one in this case 
in deciding whether an indigent accused of a misdemeanor 
was entitled to the assistance of a court-appointed attorney 
in his defense. At that time the court stated:

“A  basic concern of this court must be to strive for 
greater fairness in the administration of criminal jus­
tice. This contemplates protection of the innocent from 
wrongful conviction, and a concern for the poor as well 
as for the affluent. A  correlative consideration, never­
theless, must be to protect society from burdens that, 
if  intolerable, might impair the administration of jus­
tice. Achieving the proper equilibrium between these 
important considerations inherently requires that 
standards be established, thus presenting a situation 
in which it is difficult to achieve an ideal result.” State 
ex rel. Plutshack v. State Dept, of Health & Social Ser­
vices (1968), 37 Wis.2d 713, 721, 155 N.W.2d 549, 553, 
157 N.W.2d 567.

The court decided in the Plutshack Case that counsel 
should be provided for all indigent defendants who were

Opinion of the Supreme Court of Wisconsin



5a

charged with a crime which was punishable by a maximum 
sentence of more than six months’ imprisonment. This was 
determined to be a reasonable cutoff point.

It is also important to recognize that in deciding the 
Plutshack Case, the court was not faced with a statute which 
specifically denied the appointment of counsel to indigents 
charged with misdemeanors. On the contrary, the applica­
ble statute, sec. 957.26,2 Stats., had recently been amended3 
so that counsel could be provided in misdemeanor cases. 
Thus the court was free to adopt the six-month cutoff.

However, in this case, the applicable statute specifies that 
a change of venue based on community prejudice shall only 
be permitted in felony cases. Were we free to adopt our 
own cutoff point, we would establish it at over six months, 
as we did in reference to the appointment of counsel. How­
ever, we are not willing to say that the cutoff point estab­
lished by the legislature is necessarily arbitrary and 
capricious.

The court is aware that two other jurisdictions have con­
sidered whether a change of venue based on community 
prejudice can be limited to felony cases.4 Both decided it 
could not be without violating the due process clause of the 
Fourteenth amendment to the federal constitution. Those

2 “ 957.26 Counsel for indigent defendants charged with felony; 
advice by court. (1) A  person charged with a crime shall, at his 
initial appearance before a court or magistrate, be advised of his 
right to counsel and, that in any case where required by the United 
States or Wisconsin constitution, counsel, unless waived, will he 
appointed to represent him at county expense if he is financially 
unable to employ counsel.”

3 Ch. 519, Laws of 1965, amended sec. 957.26(1). Previously that 
section provided for the appointment of counsel only when a de­
fendant was charged with a felony.

4 Pamplin v. Mason (5th Cir. 1966), 364 F.2d 1; State ex rel. 
Ricco v. Biggs (1953), 198 Or. 413, 255 P.2d 1055, 38 A.L.R.2d 720.

Opinion of the Supreme Court of Wisconsin



6a

cases are not precedent for this court and their reasoning 
does not compel us to reach the same conclusion.4a

The United States Supreme Court held in Rideau v. 
Louisiana (1963), 373 U.S. 723, 83 S.Ct. 14U, 10 L.Ed.2d 
663, that a denial of a change of venue, under the circum­
stances of that case,5 6 amounted to a denial of due process. 
That case is distinguishable on two grounds. First, it in­
volved a felony, as does every other case in the area of 
change of venue which has been dealt with by the Supreme 
Court. Second, the defendant put into the record his proof 
of community prejudice which was at least likely to influ­
ence the jury. No record of community prejudice was ever 
made in this case.

Opinion of the Supreme Court of Wisconsin

4a The United States Supreme Court recently considered whether 
a state could constitutionally deny a jury trial to persons accused 
of a misdemeanor. Duncan v. Louisiana (1968), 391 U.S. 145, 88 
S.Ct. 1444, 20 L.Ed.2d 491.

The court held that every person had a fundamental right to a 
jury trial even in state prosecutions if he was charged with a 
“ serious” crime, whereas no such right existed if a person was 
charged with a “ petty” offense. The court refused to draw a dis­
tinct line between a petty offense and a serious offense, but the 
majority did state that any crime punishable by two years’ im­
prisonment, or more, was a serious crime. The court further indi­
cated that, under federal law, a crime involving a maximum sen­
tence of six months, or less, was a petty offense. No opinion was 
expressed as to the classification of those crimes which involved a 
maximum sentence of more than six months but less than two 
years.

In Wisconsin, no misdemeanor is punishable by more than one 
year of imprisonment.

5 The circumstances in Rideau, supra, were extreme. A twenty- 
minute film and sound track of the defendant’s being “ inter­
viewed” by the sheriff was shown over television on three separate 
occasions. During the course of the interview, the defendant ad­
mitted robbery, kidnapping and murder. The Supreme Court de­
cided, without examining the transcript of the voir dire, that due 
process required a trial before a jury drawn from a community 
of people who had not seen and heard the televised “ interview.”



7a

Appellant contends that because his motion for change 
of venue was denied, he had no opportunity to make a rec­
ord of the community prejudice. This is simply not true. 
Both the federal and state constitutional guarantee to every 
accused the right to a fair and impartial trial.6 A  verdict 
from a prejudiced jury is void7 whether or not a change of 
venue or a continuance was requested.8 On motions after 
verdict or on a petition for habeas corpus, a person con­
victed of either a misdemeanor or a felony can offer proof 
that he was denied his constitutional right of a fair and 
impartial trial.9

[2] The right to a fair and impartial trial is not synony­
mous with a change of venue. The only connection between 
a change of venue and a fair and impartial trial is that the 
former is one method of insuring the latter. Other methods

Opinion of the Supreme Court of Wisconsin

6 Art. I, sec. 7, Wisconsin Constitution:
“In all criminal prosecutions the accused shall enjoy the 

right # * to a speedy public trial by an impartial jury * *
Sixth amendment, United States Constitution:

“ In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury * * * ”

7 “Petitioner’s detention and sentence of death pursuant to the 
void judgment is in violation of the Constitution of the United 
States and he is therefore entitled to be freed therefrom. * * *” 
(Emphasis supplied.) Irvin v. Dowd (1961), 366 U.S. 717, 728, 81 
S.Ct. 1639, 1645, 6 L.Ed.2d 751.

8 This seems to be the only logical conclusion following the de­
cision in Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 
16 L.Ed.2d 600. The verdict of the jury was set aside based on 
prejudice even though no motion for a change of venue or con­
tinuance was made.

9 The express holding of Irvin v. Dowd, supra, seems to be that 
a statute which denies a change of venue is not unconstitutional, 
either on its face or in its application, so long as the statute is not 
relied upon to deny a person his right to a fair and impartial trial.



8a

of insuring a fair trial are voir dire proceedings and 
continuance.10 11

[3] The defendant here was not denied due process when 
his change of venue was denied because of the applicable 
statute. Should a rare case arise where community prej­
udice threatens to influence the verdict in a misdemeanor 
case, the defendant can rely on the antiseptic measures of 
continuance and voir dire proceedings. In the event that 
these measures are still not sufficient to provide an impar­
tial jury, the verdict can be set aside after trial based on 
the denial of a fair and impartial trial.

[4] I f  the defendant in the present case feels that he was 
denied a fair and impartial trial (no such claim has been 
made to this court), the issue can be raised and evidence 
can be presented on a motion for a new trial based on a 
denial of a fair and impartial trial.11

Quashing a Subpoena.

Defendant also contends that it is unconstitutional to 
deny to a defendant in a criminal action the right to sub­

i° “ The remedies in publicity cases are change of venue, con­
tinuance, and careful selection of a jury.” State v. Woodington 
(1966), 31 Wis.2d 151, 166, 142 N.W.2d 810, 817, 143 N.W.2d 753.

11 Sec. 958.06(1), Stats., provides:
“Within one year after the trial and on motion of the de­

fendant the court may grant a new trial * * (Emphasis 
supplied.)

The trial in this case ended on February 9, 1968. Some motions 
after verdict were presented on February 12, 1968, and denied. It 
does not appear that the presentation of those motions would fore­
close the presentation of a motion for a new trial based on an 
entirely different ground.

Opinion of the Supreme Court of Wisconsin



9a

poena any witness even if the witness’ testimony is admit­
tedly irrelevant.

[5] The Sixth Amendment to the United States Con­
stitution and art. I, sec. 7, of the Wisconsin Constitution 
guarantee to a defendant in a criminal case the right “ to 
have compulsory process” to obtain witnesses in his behalf. 
This right is now incorporated in the due process clause of 
the Fourteenth Amendment to the federal constitution and 
applies equally to the several states.12 It is also worthy of 
note that there has been no attempt to limit this right to 
persons charged with a felony.13

In this case, the defendant subpoenaed the mayor of 
Milwaukee. After the subpoena issued, an assistant city 
attorney, representing the mayor, moved for an order to 
show cause why the subpoena should not be quashed. The 
day before the trial a hearing was held on that order. The 
attorney for the city argued that the mayor had no personal 
knowledge of any facts which would be material to the 
resisting arrest charge against Father Groppi. Counsel for 
the defendant contended that they hoped to establish by the 
mayor’s testimony either that the proclamation was uncon­
stitutional on its face or that it was unconstitutionally is­
sued. The judge took the motion to quash under considera­
tion until the next day.

The following morning, the defendant withdrew a motion 
to dismiss the charge based on the unconstitutionality of 
the proclamation because that issue was pending in the

12 Washington v. Texas (1967), 388 U.S. 14, 87 S.Ct. 1920, 18 
L.Ed.2d 1019.

13 Sec. 955.04, Stats., provides:
“Any defendant shall have compulsory process to compel the 

attendance of witnesses in his behalf.”

Opinion of the Supreme Court of Wisconsin



10a

federal court and could best be determined there. The trial 
court then quashed the subpoena because the issue of the 
unconstitutionality of the proclamation had been with­
drawn. The defendant insisted at that point, and during 
the trial, that he had a constitutional right to call the mayor.

The defendant has explained in his brief on this appeal 
why the testimony of the mayor was relevant to this case:

« * * * had the defendant been able to demonstrate 
by the testimony of Mayor Maier that the ordinance un­
der which he was initially arrested was illegally prom­
ulgated either because of the procedures used or be­
cause it was unconstitutional or because it was applied 
unconstitutionally there can be no question but that 
the appellant conld have legitimately challenged his 
arrest as illegal and unauthorized.

[6] We first determine that a defendant does not have an 
unqualified right to subpoena witnesses. This right is no 
more absolute than any of the other rights guaranteed by 
the constitution.

[7] It is readily apparent that a defendant suffers no 
constitutional deprivation when he is limited to subpoena­
ing witnesses who can offer relevant and material evidence 
on his behalf. The proposition is so apparent on its face 
that it is difficult to find legal citation to support it. How­
ever, at least one English case has considered this precise 
issue. In King v. Baines (1908), 1 K.B. 258, the defendants, 
who were demonstrating for women’s suffrage, were ar­
rested for breach of the peace and unlawful assembly. They 
subpoenaed Prime Minister Herbert Henry Asquith and 
Home Secretary Herbert John Gladstone to testify at their

Opinion of the Supreme Court of Wisconsin



11a

trial. The subpoenas were subsequently set aside upon 
proof that neither subpoenaed party could give any relevant 
testimony at the trial. The setting aside of the subpoenas 
was upheld on appeal.

[8] We think a subpoena is properly quashed when a 
party is unable to give relevant evidence.

[9] We also decide that the testimony which the defen­
dant sought from Mayor Maier was immaterial to the re­
sisting arrest charge. It is not necessary to decide whether 
that testimony would have been relevant if the constitu­
tionality of the proclamation was in issue. That issue was 
specifically withdrawn from this case.

In the absence of some showing by the defendant that 
the witness was necessary for his defense, the quashing of 
the subpoena is not a violation of a defendant’s right to 
compulsory process.

We conclude that sec. 956.03(3), Stats., is constitutional 
and that the trial court’s judgment of conviction and order 
of sentence were proper.

Judgment and order affirmed.

Hallows, Chief Justice (concurring).

I concur in the result only of the majority opinion be­
cause I believe with the minority that an accused has a 
constitutional right to a fair trial in misdemeanor cases 
and to attain that end may have a change of venue if he 
shows community prejudice. The minority opinion well 
states the view that sec. 956.03(3), Stats., is regulatory only 
of this basic right to a fair trial and is not exclusive by im­
plication. The right to a change of venue to secure a fair 
trial is consistent with my belief that an accused has a con­
stitutional right to an attorney in all misdemeanor cases,

Opinion of the Supreme Court of Wisconsin



12a

which was expressed in Sparkman v. State (1965), 27 
Wis.2d 92, 102, 133 N.W.2d 776, and again in the dissent in 
State ex rel. Plutshack v. State Department of H&SS 
(1968), 37 Wis.2d 713, 727,155 N.W.2d 549, 157 N.W.2d 567.

I differ with the minority in its remedy in this case. To 
these facts I would apply the harmless-error rule as stated 
in Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557, 
cert, denied 390 U.S. 959, 88 S.Ct. 10o6, 19 L.Ed.2d 1155. 
Not every violation of a constitutional right requires a re­
versal or a new trial. Prejudice resulting from error or 
the denial of a constitutional right must be shown. In the 
instant case, the defendant had no difficulty in selecting and 
obtaining a satisfactory jury and one which on the record 
he does not claim was biased or unfair.

The exercise of the constitutional right to a change of 
venue on the ground of community prejudice is a means to 
secure an unprejudiced and fair jury so that a fail tiial may 
be assured. If such a saturation of piejudice exists in a 
community from which the jury is drawn so as to make it 
difficult to select and obtain an impartial jury, then it is 
better to change the venue of the case than to waste time 
attempting to find an unprejudiced jury. But a juror’s 
knowledge of events is to be distinguished from prejudice or 
predetermined opinion. One may have knowledge without 
prejudice. The members of a jury may be informed without 
the jury being prejudiced. I think also that community 
prejudice has little or no effect on a witness. The argu­
ment that a witness will testify differently in one county 
than he will in another is unconvincing. No matter where 
the witness testifies, he must live in the community from 
which he comes.

On the facts of this case, I see no reason for a reversal.

Opinion of the Supreme Court of Wisconsin



13a

H e f f e r n a n , Justice (dissenting).

I respectfully dissent from the opinion of the Court in­
sofar as it holds sec. 956.03, Stats., prohibits a change of 
venue in misdemeanor cases and that such legislative pro­
hibition is constitutional.

To understand what the majority has done, it is neces­
sary to review the facts. It is crystal clear from the record 
that the defendant moved for a change of venue on the basis 
of community prejudice. Such prejudice was alleged in the 
underlying affidavits supporting the motion. The defen­
dant’s trial counsel also asked that the court take judicial 
notice of the “massive coverage by all news media in this 
community of the activities of this defendant * * * or, in 
the alternative, that the defendant be permitted to offer 
proof of the nature and extent thereof, its effect upon this 
community and on the right of defendant to an impartial 
jury trial.” This motion was denied in its entirety. The 
reason for such a denial, including the reason for the re­
fusal to hear evidence of prejudice, is made clear by the 
remarks of the trial judge following the denial of the mo­
tion.

Counsel asked if the court was denying the motion “be­
cause the statute will not permit a change of venue on the 
grounds of community prejudice. * * * ” The court replied, 
“No, I ’m denying the motion * * * because this is a mis­
demeanor case and not a felony. And the Wisconsin Statute 
does not provide for a change of venue in a misdemeanor 
matter.”

It is thus apparent that the judge refused to hear evi­
dence on community prejudice solely because he concluded 
that the statute gave him no jurisdiction to order a change 
of venue even if community prejudice were shown.

Opinion of the Supreme Court of Wisconsin



14a

This, I  conclude, is a clear error of law, and the statute 
as so construed was applied unconstitutionally. The statute 
is procedural only. It merely specifies the duty of the judge 
when prejudice is apparent and the defendant is charged 
with a felony. It is silent upon the duty of a judge in the 
event one charged with a misdemeanor asks for a change 
of venue because of community prejudice. The prohibition 
that the trial judge found, at least by implication, in the 
statute is not apparent to this writer.

We have heretofore held, in State v. Nutley (1964), 24 
Wis.2d 527, 129 N.W.2d 155, overruling, sub silentio, State 
ex rel. Carpenter v. Backus (1917), 165 is. 179, 161 N.W. 
759, to the contrary, that a change of venue for community 
prejudice is a constitutional right independent of the legis­
lative procedural implementation. In Nutley, 24 Wis.2d page 
566, 129 N.W.2d page 160, we pointed out that the portion 
of sec. 956.03(3), Stats., providing, “ Only one change maybe 
granted under this subsection,” was subject to the due proc­
ess limitations of the fourteenth amendment to the United 
States Constitution.

In effect, this court recognized, at least in a felony case, 
that the power of a court to order a change of venue arose 
not from the statute but from its inherent power to act to 
assure a fair trial, and, as required, by the fourteenth 
amendment.

Are there any reasons why this constitutional assurance 
of a fair trial by the device of change of venue should be 
available only to one charged with a felony and not to an 
alleged misdemeanant?

The majority opinion concludes that it is just and proper 
to afford fewer constitutional guarantees of fairness to a 
misdemeanant than to a felon. On the face of it this propo­
sition runs counter to all principles of Anglo-American

Opinion of the Supreme Court of Wisconsin



15a

jurisprudence; however, factual distinctions, it is con­
tended, make it fair to afford fewer protections to one 
charged with a misdemeanor. It is asserted in the opinion 
of the majority of the Court that the penalties are more 
severe in the case of felonies. This is, of course, true, but 
it is a fact entirely irrelevant to the issue. It is, in essence, 
an assertion that an unfairness that results in only a small 
sentence is of such a minor consequence as to be de minimis. 
The mere statement of the proposition is its own refutation. 
Concededly, the legislature has seen fit to confer additional 
safeguards to defendants accused of major crimes (pre­
liminary hearing, e .g .); however, it is powerless to reduce 
the minimum safeguards of fairness that are assured by 
both the Wisconsin and United States Constitutions to all 
criminal defendants.

The opinion of the court also asserts that community 
prejudice is not aroused by the commission of a misde­
meanor and that, therefore, a change of venue is needless. 
The simple answer to this proposition is that if there is no 
community prejudice, it is within the discretion of the trial 
judge to deny a change of venue. This determination is de­
pendent upon the facts as they subjectively appear and not 
upon the objective nature of the crime or whether it is 
labeled a felony or a misdemeanor. The identity of the de­
fendant and his image in the community is also relevant 
and may be a determining factor in whether or not there is 
community prejudice, irrespective of the nature or serious­
ness of the crime charged.1 To say that the public is not

1 The attorney general in his addendum to the district attorney’s 
brief acknowledged that, “Appellant is a controversial figure, but 
not only in Milwaukee county.” While this statement was made 
by the attorney general to show that a trial in another county might 
not result in a trial free from prejudice, it is equally probative of

Opinion of the Supreme Court of Wisconsin



16a

prejudiced or enraged by the commission of a misdemeanor 
begs the question. That is precisely what a hearing for a 
change of venue is intended to determine, and this is what 
the defendant herein sought to prove. For this Court to 
decree that prejudice will henceforth not exist in a trial 
for a misdemeanor is reminiscent of King Canute’s edict to 
hold back the tides.

It is, of course, true that it will be only the unusual and 
infrequent misdemeanor cases that will become a cause 
celebre and arouse popular passions. Granting the premise, 
on which the majority opinion is in part based, that there 
will be few misdemeanors that will arouse the emotions of 
the public, how can the rare case so clog the courts with 
motions for change of venue that the efficient and expedi­
tious disposition of criminal cases will be in jeopardy. The 
majority opinion’s fears are of a bogeyman of court conges­
tion which its own reasoning shows to be without founda­
tion. Moreover, there is no reason why this Court should 
assume that motions for change of place of trial will be 
abused or that our courts are so supine as to tolerate such 
abuse.

While it may be conceded that procedurally it is within 
the legislature’s power to adopt more expeditious methods 
of handling misdemeanors than felonies, it may not do so 
if constitutional rights are thereby encroached upon. The

the assertion that the defendant could not have received a fair trial 
anywhere in the state. This, however, is no reason why a change of 
venue should not have been granted, for under Nutley, supra, this 
court has decided that the defendant is not remediless after one 
change of venue. If it developed that a fair trial could have been 
held nowhere in the state, a motion for continuance would then 
have been appropriate. The first obligation of the trial court was 
to consider a change of venue so the defendant could be speedily 
tried.

Opinion of the Supreme Court of Wisconsin



17a

legislature may grant the right to a preliminary hearing to 
a felon, but not to a misdemeanant, but this right is statu­
tory not constitutional. For example, it cannot, under the 
aegis of greater efficiency in the administration of justice, 
deny misdemeanants the right to jury trial guaranteed by 
the Wisconsin Constitution. WThile efficiency and economy 
are of great significance in cases where the courts are free 
to act one way or the other, they have no place in the situa­
tion now before us, where this court, as well as the legisla­
ture, is answerable to the Constitution.

The recent United States Supreme Court decision, Dun­
can v. Louisiana (May 20,1968), 391 U.S. 145, 88 S.Ct. 1444, 
20 L.Ed.2d 491, pointed out that under the sixth amendment 
and the fourteenth amendment to the United States Con­
stitution petty offenses could be tried before a judge only. 
This decision, of course, does not obviate the necessity for 
a jury trial for misdemeanors in a state like Wisconsin, 
where a jury trial is available to all defendants. Duncan, 
however, makes it crystal clear that a trial, before whom­
soever held, must be fair. Justice Harlan, although dis­
senting in Duncan and agreeing that a state by its own con­
stitution should be able to determine the necessity of a jury 
trial, stated there were nevertheless certain prerequisites 
to a system of ordered liberty, one of them being a fair 
trial. He said, “ I should suppose it obviously fundamental 
to fairness that a ‘jury’ means an ‘impartial jury.’ ” (Pp. 
181, 182, 88 S.Ct. p. 1466.)

In the instant case, a jury is guaranteed by the Wisconsin 
Constitution, and Duncan makes it clear that a jury must 
be impartial. A  litigant is constitutionally entitled to in­
voke the device of change of venue to determine whether or 
not a trial may be had free from the contamination of com­

Opinion of the Supreme Court of Wisconsin



18a

munity prejudice. Where the trial of a misdemeanant is be­
fore a judge, under Wisconsin law he may file an affidavit 
of prejudice if he thinks it necessary to assure a fair trial. 
He should not have a lesser right to a fair and impartial 
trial if he invokes his constitutional prerogative of trial by 
jury.

Nor is State ex rel. Plutshack v. State Department of 
Health and Social Services (1968), 37 Wis.2d 713, 155 N.W. 
2d 549, 157 N.W.2d 567, relevant to this case. Contrary to 
the assertion of the majority opinion, this court, therein, 
was not influenced or controlled by sec. 957.26, Stats. It 
was controlled by the rulings of the United States Supreme 
Court which have been interpreted to mean that there shall 
be counsel whenever a “ substantial sentence” may be im­
posed. The opinion of the Court in Plutshack was influenced 
by legislation only to the extent that we concluded that con­
gressional legislation (Criminal Justice Act of 1964) was 
declaratory of constitutional requirements.

In the instant case we have elevated the legislature’s 
enactment of sec. 956.03, Stats., to the status of a limitation 
on the constitutional rights of citizens accused of crime. 
To do so is, I believe, a misinterpretation of a statute the 
legislature intended to be procedural only and constitutes 
an abdication of a constitutional responsibility of this 
Court.

W e are herein in no way bound or guided, as we said we 
were in Plutshack, by legislation that appears to us to be 
declaratory of a proper constitutional standard already 
found by the Supreme Court of the United States. In the 
instant case what the legislature had to say about change of 
venue in felony cases is irrelevant to a constitutional right 
of an alleged misdemeanant.

This writer is of the opinion that the trial court and the

Opinion of the Supreme Court of Wisconsin



19a

majority of this Court interpreted the statute in such a way 
as to deprive misdemeanants of important constitutional 
rights. In State ex rel. Eicco v. Biggs (1953), 198 Or. 413, 
255 P .2d 105o, the Oregon Supreme Court, faced with a 
similar statute, pointed out that such an interpretation 
violated the Oregon constitutional guaranty of a fair trial 
(similar to Wisconsin’s), as well as the due process clause 
of the fourteenth amendment. That court pointed out, as 
does this dissent, that the legislative enactment does not 
govern whether a misdemeanant is entitled to a change of 
venue, for the right to a changed place of trial depends 
not upon legislative consent but upon the constitutional 
right of fair trial.

It is the opinion of this writer that the inherent power of 
a court to order a change of venue for community prejudice 
is beyond question.

This writer would also conclude that in any criminal case 
a court of justice has the inherent duty, where the question 
is raised, to inquire into the matter of community prejudice 
and to hold a hearing in order to exercise its discretion in 
respect thereto. This duty is constitutional, not statutory, 
and in proper circumstances should be exercised sua sponte.

Nor can I agree with the majority opinion’s conclusion 
that even though a change of venue could or should have 
been granted, a fair trial is still assured by the procedures 
of the voir dire and motions after verdict.

This is hardly an argument for efficient judicial adminis­
tration for if an atmosphere of prejudice or unfairness can 
be detected prior to trial, it is folly to spend the public’s 
money on a trial that will be set aside.

No doubt, motions after verdict are useful safety devices 
to correct error that perhaps has already occurred, but the 
goal of the proper administration of justice is the avoid­

Opinion of the Supreme Court of Wisconsin



20a

ance of error. The device of change of venue seeks the 
avoidance of error.

Moreover, the test of community prejudice is not whether 
an impartial jury can or cannot be impaneled but whether 
there is a “ reasonable likelihood” that community prejudice 
exists. Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 
1507,16 L.Ed.2d 600.

The American Bar Association Advisory Committee on 
Fair Trial and Free Press at pages 126, 127, and 128 dis­
cussed the efficacy of the voir dire as a guaranty of a fair 
trial:

“It has in many jurisdictions been common practice 
for denial of such a motion to be sustained if a jury 
meeting prevailing standards could be obtained. There 
are two principal difficulties with this approach. First, 
many existing standards of acceptability tolerate con­
siderable knowledge of the case and even an opinion on 
the merits on the part of the prospective juror. And 
even under a more restrictive standard, there will re­
main the problem of obtaining accurate answers on 
voir dire—is the juror consciously or subconsciously 
harboring prejudice against the accused resulting from 
widespread news coverage in the community? Thus if 
change of venue and continuance are to be of value, 
they should not turn on the results of the voir dire; 
rather they should constitute independent remedies de­
signed to assure fair trial when news coverage has 
raised substantial doubts about the effectiveness of the 
voir dire standing alone.

“ The second difficulty is that when disposition of a 
motion for change of venue or continuance turns on 
the results of the voir dire, defense counsel may be

Opinion of the Supreme Court of Wisconsin



21a

placed in an extremely difficult position. Knowing con­
ditions in the community, he may be more inclined to ac­
cept a particular juror, even one who has expressed 
an opinion, than to take his chances with other, less 
desirable jurors who may be waiting in the wings. And 
yet to make an adequate record for appellate review, 
he must object as much as possible, and use up his per­
emptory challenges as well. This dilemma seems both 
unnecessary and undesirable. * * *

“The suggestion of some courts that * * * [failure 
to exhaust all peremptory challenges] amounts to a 
waiver [of a right to transfer or continuance] seems 
to require the defendant to take unnecessary risks. I f 
the defendant has satisfied the criterion for the grant­
ing of relief, it should not matter that he * * * has 
failed to use his peremptory challenges, perhaps be­
cause he prefers the ills he has to others he has not yet 
seen.”

In State v. Nutley, supra, 24 Wis.2d pages 565, 566, 129 
N.W.2d page 172, this Court accepted the conclusion that a 
voir dire does not necessarily assure a trial free from the 
contamination of community prejudice:

“The United States supreme Court has held that 
even if a defendant has examined prospective jurors 
at length during a voir dire, and even if the jurors state 
that they will evaluate the issues only on the evidence 
presented during the trial, a defendant may still be 
denied a fair trial if prejudicial pretrial publicity is of 
such quantitative and qualitative magnitude that it is 
probable that the jurors predetermined the issue de­
spite their protestations to the contrary. This rule of

Opinion of the Supreme Court of Wisconsin



22a

Fourteenth amendment due process is applicable even 
though the defendant may have received one change of 
venue, pursuant to a state statute similar to sec. 9o6.03, 
Stats.”

True, this court has in numerous cases looked to the 
voir dire to determine that a trial was free from the taint of 
prejudice. This technique, while efficacious in some cases, 
is directed primarily to the question of whether a trial 
judge abused his discretion in determining that the preju­
dice alleged or proved was not of such a nature as to pre­
vent a fair trial. Here, abuse of discretion is not in ques­
tion. The trial jjidge here relied upon his interpretation of 
a statute and concluded that he was precluded by law from 
granting a change of venue. Discretion was not exercised. 
Hence, the error was one of law and the usual voir dire 
cases are not directed to the issue raised herein.

Mason v. Pamplin (D.C.1964), 232 F.Supp. 539, 540, 541, 
542, 543 (Affm’d Pamplin v. Mason (5 Cir. 1966), 364 F.2d 
1), a case involving the right of a change of venue in a mis­
demeanor case where the Texas statute referred only to 
felonies, stated:

“ The record reflects that the prospective jurors, who 
apparently qualified as a group, stated that they did 
not know petitioner; that they had not formed any 
opinions in the case; and that they had no prejudices 
against the Negro race, or against a Negro acting as 
counsel for petitioner. No testimony on this question, 
other than the sworn statement of petitioner’s counsel, 
was offered at the hearing on the motion for new trial.

Opinion of the Supreme Court of Wisconsin

# *  #



23a

“Whatever doubt may have existed prior to 1960 
with respect to the inherent right of an individual to a 
change of venue if he demands a jury trial, and it is 
made to appear that in the county where the prosecu­
tion is begun an impartial jury cannot be impaneled, 
was dispelled by the Supreme Court in Irvin v. Dowd, 
366 U.S. 717, 721, 81 S.Ct. 1639, 1641, 1642, 6 L.Ed.2d 
751 (1960), when it recognized the proposition that a 
transfer may become a necessity, depending upon ‘the 
totality of the surrounding facts.’ Such ‘totality’ can­
not be achieved if the court is precluded by law from 
hearing any competent evidence which may be offered 
before, during or after trial for the purpose of show­
ing one’s inability to obtain a fair and impartial trial 
in a particular county. * * *

“The hearing on the change of venue is the first and
most important step in ascertaining whether or not the
accused can receive a fair and impartial trial in the
county in which the prosecution is pending. The void
which is left when the initial hearing is dispensed with
could hardly be filled in a misdemeanor case, any more
than it could in a felony case, by the subsequent voir
dire examination of prospective jurors in a group, or
by producing at a hearing on a motion for new trial
testimony the Court has previously refused to hear. 
* * *

“I f the allegations made by [petitioner] had been 
found to be true [at a venue hearing], he would have 
been entitled to a change of venue, irrespective of the 
fact that the jurors themselves as a group indicated 
that they had no prejudices. As the Supreme Court 
said in Dowd: ‘No doubt each juror was sincere when

Opinion of the Supreme Court of Wisconsin



24a

he said that he would be fair and impartial to petitioner, 
hut the psychological impact requiring such a declara­
tion before one’s fellows is often its father.’ 366 U.S. 
717, 728, 81 S.Ct. 1639, [1645, 6 L.Ed.2d 751].”

The denial of the defendant’s motion, which in the alter­
native asked for a hearing on community prejudice, denied 
the defendant (contrary to the assertion of the majority 
opinion) an opportunity “ to make a record of community 
prejudice.” This is true because the judge made it clear 
that, in the case of a misdemeanor, community prejudice 
was irrelevant to a change of venue— there was just no 
statutory authority for such change. In motions after ver­
dict defendant asked for a new trial on the ground, among 
others, that the court erred in denying the motion for 
change of venue on the assumption that the statute applied 
only to felony cases. This motion was again denied. The 
defendant also asked for a new trial on the ground that the 
one accorded him was unfair.

The defendant’s motion was denied without hearing or 
explanation. It is apparent that the trial judge, relying 
on his interpretation of the law, refused to look to the 
alleged facts of community prejudice, and afforded the de­
fendant no opportunity to make a record.

I would reverse the judgment of the circuit court and 
order a new trial, directing the trial court that, in the event 
a motion for change of venue is made, to exercise its dis­
cretion to determine whether or not the facts adduced at 
hearing warrant the granting of a change of venue.

I am authorized to state that Mr. Justice W ilkie joins 
in this dissent.

Opinion of the Supreme Court of Wisconsin





MEILEN PRESS INC. —  N. Y. C. 219



I n  t h e

fbnptmt C U m i r l  o f  t i } £  MnlUb S t a t e s
October Term, 1970

No. 26

James E dmund Groppi,
Appellant,

—v.—
State of W isconsin,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF WISCONSIN

BRIEF FOR APPELLANT

Jack Greenberg
E lizabeth B. D ubois 

10 Columbus Circle 
New York, New York 10019

M ichael M eltsner
Columbia Law School 
435 West 116th Street 
New York, New York 10027

A nthony G. A msterdam 
Stanford Law School 
Stanford, California 94305

Haywood B urns
112 West 120th Street 
New York, New York 10027

Thomas M. Jacobson
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

Robert E. Sutton
710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Attorneys for Appellant





I N D E X
PAGE

Jurisdiction ............................................................................. 1

Constitutional and Statutory Provisions Involved.......  2

Question Presented............. - ..............................................  2

Statement .............................................................................. 3

1. Events Prior to Appellant’s Charge for Resisting
Arrest ..........................................................................  4

2. The Resisting Arrest Charge ................................. 6

3. Rulings of the Courts Below ............................... 8

Summary of Argum ent........................................................  13

A rgument :

Introduction ...............„ ...............................................  14

Opinion Below ........................ _...................................... 1

I. Wis. Stat. Ann. §956.03(3) Violates the Sixth 
Amendment and the Due Process Clause of the 
Fourteenth Amendment in Denying a Defen­
dant’s Right to a Fair and Impartial Jury 
Trial by Totally Prohibiting a Change of 
Venue in Certain Serious Criminal Prosecu­
tions Regardless of the Extent of Community 
Prejudice................................................................  15

II. Wis. Stat. Ann. §956.03(3) Violates the Equal 
Protection Clause of the Fourteenth Amend­
ment in Denying Persons Charged with a 
Misdemeanor the Right to a Change of Venue
Granted Persons Charged with a Felony .... 34 

Conclusion: ..........................................................................  38



11

Cases:

Table of A uthorities

page

Baldwin v. New York, 38 U.S.L.Wk. 4554 (1970) ..15, 29, 35 
Barry v. Truax, 13 N.D. 131, 99 N.W. 769 (1904) ..17,18,

30, 31
Baxstrom v. Herold, 383 U.S. 107 (1966) .....................  34
Beck v. Winters, 407 F.2d 125 (8th Cir. 1969) ..............  36
Bell v. Maryland, 378 U.S. 226 (1964) ........................... 29
Bloom v. Illinois, 391 U.S. 194 (1968) .........   29
Brown v. Louisiana, 383 U.S. 131 (1966) .....................  29

Cox v. Louisiana, 379 U.S. 536, 559 (1965) ...................  29
Crocker v. Justices of Superior Court, 208 Mass. 162,

94 N.E. 369 (1911) ..................................................... 17, 31

Darcy v. Handy, 351 U.S. 454 (1956) ............................... 26
Delany v. United States, 199 F.2d 107 (1st Cir. 1952) 23
Douglas v. California, 372 U.S. 353 (1962) ...................  34
Duncan v. Louisiana, 391 U.S. 145 (1968) ............. 17,29,36

Edwards v. South Carolina, 372 U.S. 229 (1963) .......  29
Enriquez v. State, 429 S.W.2d 141 (Tex. Ct. Crim.

App. 1968) ........................................................................  21
Estes v. Texas, 381 U.S. 532 (1965) ...............................20,28

Gregory v. Chicago, 394 U.S. I l l  (1969) .......................  29
Griffin v. Illinois, 351 U.S. 12 (1956) ..............................  34
Groppi v. Froehlich, 311 F. Supp. 765 (W.D. Wis.

1970) ..................................................................................... 4
Groppi v. Leslie, 311 F. Supp. 772 (W.D. Wis. 1970) .. 4
Gulf, Colorado and Sante Fe Ry. v. Ellis, 165 U.S. 150 

(1897) 34



I l l

Hague v. C.I.O., 307 U.S. 496 (1959) ............................... 29
Harms v. State, 36 Wis.2d 282, 153 N.W.2d 78 (1967) .. 37 
Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965) .. 36

In re Murchison, 349 U.S. 133 (1955) ...........................16, 27
Irvin v. Dowd, 366 U.S. 717 (1961) ...........16,20,22,23,33

James v. Headley, 410 F.2d 325 (5th Cir. 1969) .......  36
Juelich v. United States, 214 F.2d 950 (5th Cir. 1954) .. 21

Mason v. Pamplin, 232 F. Supp. 539 (W.D. Tex. 1964), 
aff’d sub nom. Pamplin v. Mason, 364 F.2d 1 (5th 
Cir. 1966) ..........................................................................  32

Parker v. Gladden, 385 U.S. 363 (1966) .... ....................  16
People v. Hryciuk, 5 I11.2d 176, 125 N.E.2d 61 (1954) .. 23 
People v. McKay, 37 Cal.2d 792, 236 P.2d 145 (1951) .. 23
People v. Ryan, 38 N.Y. Supp. 2d 806 (1942) ...............  31
Pruitt v. State, 16 Wis.2d 169,114 N.W.2d 148 (1962) .. 36

Rex v. Cowle, 2 Burr. 834, 97 Eng. Rep. 587 (1759) ..17, 30 
Rex v. Harris, 3 Burr. 1330, 97 Eng. Rep. 858 (1762) ..17, 30 
Rideau v. Louisiana, 373 U.S. 723 (1963) ..16,20,22,26,33 
Rogers v. State, 155 Tex. Crim. 423, 236 S.W.2d 141

(1951) ................................................................................  20
Rubenstein v. State, 407 S.W.2d 793 (Tex. Ct. Crim. 

App. 1966) ........................................................................  20

Sheppard v. Maxwell, 384 U.S. 333 (1966) ...........16, 20, 26
Shuttlesworth v. Birmingham, 373 U.S. 262 (1963);

376 U.S. 339 (1964); 382 U.S. 87 (1965); 394 U.S.
147 (1969) ..........................................................................  29

PAGE



IV

Skinner v. Oklahoma, 316 U.S. 536 (1942) ................... 34
State v. Albee, 61 N.H. 423, 60 Am. Rep. 325 (1881) ..17, 31 
State v. Cooper, 4 Wis.2d 251, 89 N.W.2d 816 (1958) .. 22 
State v. Nutley, 24 Wis.2d 527, 129 N.W.2d 155 (1964),

cert, denied, 380 U.S. 918 (1965) ...................16,21,24,25
State v. Sawtelle, 66 N.H. 488, 32 A. 831 (1891) .......  31
State v. Stevens, 26 Wis.2d 451, 132 N.W.2d 502 (1965) 22
State v. Thompson, 273 Minn. 1, 139 N.W.2d 490,

cert, denied, 385 U.S. 817 (1966) ............................... 32
State v. Watkins, 40 Wis.2d 398, 162 N.W.2d 48 (1968) 37 
State v. Woodington, 31 Wis.2d 151, 142 N.W.2d 810

(1966) ......................................... - .................................... 25
State ex rel. Gaynon v. Krueger, 31 Wis.2d 609, 143

N.W.2d 437 (1966) ........................................................ 35, 37
State ex rel. Murphy v. Voss, 34 Wis.2d 501, 149 N.W.

2d 595 (1967) ..................................................................  16
State ex rel. Plutshak v. State Department of Health 

and Social Services, 37 Wis.2d 713, 155 N.W.2d 549,
157 N.W.2d 567 (1968) .....................................................  36

State ex rel. Rico v. Biggs, 198 Ore. 413, 255 P.2d 1055
(1953) ................................................................................ 33

State ex rel. Sauk County District Attorney v. Goll-
mar, 32 Wis.2d 406, 145 N.W.2d 670 (1966) ...............  16

State ex rel. Schulter v. Roraff, 39 Wis.2d 342, 159 
N.W.2d 25 (1968) ..................................    25

PAGE

Thompson v. City of Louisville, 362 U.S. 199 (1960) ....16,27
Turney v. Ohio, 273 U.S. 510 (1927) ...............................  16
Turner v. Louisiana, 379 U.S. 466 (1965) ............. 16, 20, 27



V

United States v. Dioguardi, 147 F. Supp. 421 (S.D.
N.Y. 1956) ........................................................................ 28

United States v. Florio, 13 F.R.D. 296 (S.D.N.Y. 1952) 20
United States v. Parr, 17 F.R.D. 512 (S.D. Tex.

1955) ................................................................................20,28
United States v. Rosenberg, 200 F.2d 666 (2nd Cir.

1952), cert, denied, 345 U.S. 965 (1953) ..................... 26
United States ex rel. Bloeth v. Denno, 313 F.2d 364 

(2nd Cir.), cert, denied, 372 U.S. 978 (1963) ....16,21,23 
United States ex rel. Sheffield v. Waller, 126 F. Supp.

537 (W.D. La. 1954), applic. for prob. cause denied,
224 F.2d 280 (5th Cir. 1955), cert, denied, 350 U.S. 
922 (1955) ........................................................................  23

Wright v. Georgia, 373 U.S. 284 (1963) ..._....................  29

Constitutional and Statutory Provisions 
and Rules of Court:

A la. Const. Art. IV, §75 ................................................... 18
Ala. Code Tit. 15, §267 (1940) ....................................... 18
Alaska Stat. §22.10.040 (Supp. 1962) .............................  18
Abie. R, Cbim. P. 201-11....................................................... 18
Ark. Const. Art. 2, §1 0 ....................................................... 18
Ark. Stat. A n n . §43-1501 (1947) .... ...............................  18

Cal. Pen. Code §§1033.5, 1431 .......... ...............................  18
Colo. Const. Art. V, §3 7 .....................................................  18
Colo. Rev. Stat. A n n . §39-9-4 (1963) ...............................  18
Conn. Gen. Stat. Rev. §54-78 (1958) ...........................  18

Del. Const. Art. I, § 9 .........................................................  18
Del. Super. Ct. (Crim.) R. 21(a) ...................................  18

PAGE



VI

F. R. Crim. P. 21(a) .................................................................  19
F la. Stat. A n n . §911.02 (1944) .............................................  18

Ga. Const. Art. VI, §2-5001 ....................................................  18
Ga. Code A n n . §27-1101, 1201 (1935) ................- ............  18

Hawaii Const. Art. I, §11 ........................................ - ............ 18
H awaii Rev. Stat. §711-18 (1968) ...................... - ............  18

Idaho Code A n n . §§19-1801; 19-1304 (1948) .................18,32
III. A nn . Stat. ch. 38, §114-6 (1963) ............ ...................  18
Ind. Rules of Procedure, Tr. 77, Cr 12 (1970) .......... 19, 31
Iowa Code A nn  §§762.13, 778.1 (1946) .....................  19,32

K an. Stat. A n n . §62-1318 (1964) .................... —................ 19
K y . Rev. Stat. A nn . §§452.210, 452.360 (1963) ............. 19

L a. Code Crim. P. §§621, 622 (1966) ..................................  19

Me. R. Crim. P. 21, Dist. Ct. Crim. R. 21 (1969) ............  19
Md. Const. Art. IV , §8 .........................................................19,31
Md. A n n . Code Art. 75, §44 (1957) ................... .................19,31
Mass. A n n . Laws ch. 277, §51 (1956) ............................ 19,31
M ich. Comp. Laws A n n . §762.7 (1968) ..............................  19
M inn . Stat. A n n . §627.01 (1947) .....................................19,32
Miss. Code A n n . §2508 (1956) ...........................................  19
Mo. A n n . Stat. §545.430 (1949) ...........................................  19
Mo. Sup. Ct. R. Crim. P. 22.05, 30.01 ..................................  19
M ont. Rev. Codes A n n . §95-1710 (Repl. 1967) ............  19

Neb. Rev. Stat. §25-410 (1964) ...................    19
Nev. Rev. Stat. §174.455 (1969) ....................  19
N. H. Const, pt. I, art. 1 7 .......................................................19, 31
N. J. Rev. Stat. §2A:2-13 (1952) ..................................... 19
N. M. Stat. A n n . §21-5-3 (Supp. 1965) ..............................  19
N. Y. Code Crim. P. §3 4 4 .........................................................19,31

PAGE



vu

N. C. Gen . Stat. §1-84 (Repl. 1969) ..................................  19
N. D. Cent. Code §29-15-01 (1960) ..................................  19

Ohio Rev. Code A n n . §2931.29 (Page 1953) .....................  19
Okla. Const. Art. II, §20 ................................................... 19
Okla. Stat. A n n . Tit. 22, §561 (1937) .............................. 19
Ore. Rev. Stat. §§131.400, 131.420 (Supp. 1963) ........  19

Pa. Const. Art. I l l , §23 ........................................................ 19̂  31
Pa. Stat. A n n . Tit. 19, §551 (1930) ..............................19,31

R. I. Gen. L aws A n n . §8-2-29 (1956) ..................................  19

S. C. Const. Art. V I, § 2 ............................................................. 19
S. C. Code oe Laws §17-457 .................................................... 19
S. D. Comp. Laws §23-28-7 (1967) .......................................19, 32

Tenn. Code A n n . §40-2201 (1955) ....................................... 19
Tex. Const. Art. I l l ,  § 4 5 ........................................................  19
Tex. Code Crim. P. A nn . Art. 31.01 (1966) .................19, 32

28 U.S.C. §1257(2) .....................................................................  1
Utah Code A n n . §77-26-1 (1953)...........................................  19

Vt. Stat. A n n . Tit. 13, §4631 (1969) ..............................19,32
Va. Code A n n . §19.1-224 (1950) ...........................................  19

W ash. Rev. Code A n n . §10.25.070 (1961) .....................  19
W. Va. Const. Art. I l l , § 1 4 ....................................................  19
W. V a. Code A nn . §62-3-13 (1966) ..................................  19
Wis. Const. Art. 1, §7 .............................................................. 15
Wis. Stat. A n n . §270.16 .........................................................  36
Wis. Stat. A n n . §939.60 .........................................................  36
Wis. Stat. A n n . §939.62 ........................................................... 37
Wis. Stat. A n n . §946.41 ........................................................... 3
Wis. Stat. A n n . §956.03 .................................. 1, 2, 9 ,10 ,14,15,

19, 25, 34, 36

PAGE



vm

PAGE

Wis. Stat. A n n . §957.01 ............ ....................................... 16
Wis. Stat. A n n . §957.03 ....................................................  36
Wis. Stat. A n n . §957.04 ..................~.............................. 36
Wis. Stat. A n n . §957.14 ....................................................  36
Wis. Stat. A n n . §959.044 ..................................................  36
W yo. Stat. A n n . §1-59 (1957)..........................................  19
W yo. B. Crim. P. 23 (1968) ............................................  19

Other Authorities:

56 Am. Jur., Venue §42 ......................................................  18

A msterdam, Segal & M iller, Trial Manual por the 
Defense of Criminal Cases (1967) ..............................24,27

Anno., Pretrial Publicity in Criminal Case as Affecting 
Defendant’s Right to Fair Trial—Federal Cases, 10 
L. Ed. 2d 663 (1964) ..........................................................  30

Austin, Prejudice and Change of Venue, 68 Dick. L.
B ev. 401 (1964) .......................................................................  28

Bailey and Golding, Remedies for Prejudicial Publicity 
—Change of Venue and Continuance in Federal 
Criminal Procedure, 18 Fed. B. J. 56 (1958) ................. 30

Broeder, Voir Dire Examinations: An Empirical
Study, 38 So. Cal. L. Bev. 503 (1965) ...............22,23,24

Lipton, The Classification of Crimes in Wisconsin, 50 
Marq. L. Bev. 346 (1966) ....................................................  37

Note, Community Hostility and the Right to an Impar­
tial Jury, 60 Colum. L. Bev. 349 (1960) .................19, 24, 28

Note, Impartial Jury—20th Century Dilemma: Some 
Solutions to the Conflict Between Free Press and 
Fair Trial, 51 Corn. L. Q. 306 (1966) ..........................23, 25



IX

PAGE

Note, Wisconsin Criminal Procedure, 1966 Wis. L. Rev.
430 .............................................................................................22,36

Standards Relating to Fair Trial and Free Press 
(A.B.A. Project on Minimum Standards for Crimi­
nal Justice, 1966) ................................................. 19,21,22,23,

24, 30, 31



-



In t h e

&upmtt? GJuart nf llniXzh States
October Term, 1970

No. 26

James E dmund Groppi,
Appellant,

State of W isconsin,
Appellee.

ON APPEAL FROM THE SUPREME COURT OF WISCONSIN

BRIEF FOR APPELLANT

Opinion Below

The opinion of the Supreme Court of Wisconsin is 
reported at 41 Wis. 2d 312, 164 N.W.2d 266 (1969) and 
is set forth in the Appendix, at pp. 205-231.

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1257(2), this being an appeal which draws into 
question the validity of Wis. Stat. A n n . §956.03(3) infra, 
p. 2, on the ground that it is repugnant to the Constitution 
of the United States.

Appellant was convicted of resisting arrest in the Circuit 
Court of Milwaukee County. A  change of venue was denied



2

on the ground that Wis. Stat. A n n . §956.03(3) did not per­
mit a change of venue in a misdemeanor case. On appeal, 
his conviction and sentence were affirmed on February 4, 
1969. On April 1, 1969 a petition for rehearing was denied. 
Timely notice of appeal to this Court was filed in the 
Supreme Court of Wisconsin on May 6, 1969. As the 
Supreme Court of Wisconsin explicitly held that under 
Wis. Stat. A n n . §956.03(3) a change of venue was not per­
mitted in a misdemeanor case, and rejected appellant’s 
federal constitutional challenges to said statute, this matter 
was appropriately brought to this Court by appeal. On 
June 15, 1970, this Court noted probable jurisdiction.

Constitutional and Statutory Provisions Involved

This case involves the Sixth and Fourteenth Amendments 
to the Constitution of the United States.

This case also involves §956.03(3) of Wisconsin Statutes, 
which states:

If a defendant who is charged with a felony files his 
affidavit that an impartial trial cannot be had in the 
county, the court may change the venue of the action 
to any county where an impartial trial can be had. 
Only one change may be granted under this sub­
section.

Question Presented

Whether Wis. Stat. A n n . §956.03(3), which prohibits 
Wisconsin trial courts from granting a change of venue in 
a misdemeanor case, regardless of the extent of community 
prejudice, violates the Sixth Amendment and the Due 
Process and Equal Protection Clauses of the Fourteenth 
Amendment ?



3

Statement

Appellant James E. Groppi, a Roman Catholic priest, 
was charged with resisting arrest under Wis. Stat. A nn . 
§946.41, a misdemeanor punishable by a maximum of one 
year imprisonment in a county jail and a five hundred 
dollar fine, as a result of an incident arising out of a civil 
rights march in Milwaukee, Wisconsin on August 31, 1967 
(A. 2-5, 72-73, 123-25).1 Father Groppi was convicted by a 
jury of resisting arrest on February 9, 1968 (A. 50, 183-84). 
He was sentenced to a six months suspended sentence and 
placed on two years probation. He was additionally 
sentenced to pay a fine of five hundred dollars and costs 
and in default of payment within twenty-four hours, to 
serve another six months in jail (A. 51).2

1 Specifically, appellant was charged with:
Unlawfully, knowingly resist [ing] Wilfred Buchanan, a duly 
appointed, qualified, and acting police officer of the City of 
Milwaukee, in said County, while the said Wilfred Buchanan 
was then and there engaged in doing an act in his official 
capacity, and with lawful authority, to-wit: . . . while said 
defendant was being carried to a police wagon, after being 
placed under arrest, said defendant began kicking his legs, 
striking said officer Wilfred Buchanan in the body with his 
foot; that said defendant [swore at Wilfred Buchanan 1 
(A. 4)

2 On October 11, 1969, appellant was arrested and on October 
17, 1969, his probation was revoked and he was ordered to com­
mence serving his sentence of six months imprisonment (with 
credit for time served totalling six days). Wisconsin v. Groppi, 
Milwaukee County Circuit Court, Branch 12, #G-4718, Hearing’ 
to Determine Revocation of Probation, October 17, 1969. On 
October 27, 1969, Mr. Justice Marshall stayed execution of this 
sentence and ordered appellant released pending this Court’s deci­
sion on jurisdiction and, assuming probable jurisdiction was noted 
pending this Court’s mandate.

Revocation was for violation of the conditions of probation and 
followed upon appellant’s alleged participation in a demonstration



4

On February 4, 1969, the Supreme Court of Wisconsin 
affirmed appellant’s conviction and sentence; Chief Justice 
Hallows concurred, and Justices Heffernan and Wilkie 
dissented (A. 202-31). A  motion for rehearing was denied 
on April 1, 1969 (A. 232).

1. Events Prior to Appellant’s Charge for 
Resisting Arrest.

Prior to and during the incidents that led to his arrest, 
appellant was advisor to the Youth Council of the Mil­
waukee Chapter of the National Association for the Ad­
vancement of Colored People (hereinafter NAACP), a 
group in the Milwaukee area actively supporting efforts 
of Negro citizens to obtain equal civil rights.

On August 30, 1967, the Mayor of Milwaukee issued a 
proclamation prohibiting all “marches, parades, demon­
strations, or other similar activities” in Milwaukee between 
the hours of 4 P.M. and 9 A.M. for a thirty-day period 
(A. 46-47). The proclamation was the Mayor’s response 
to several civil rights demonstrations and marches in which 
the Youth Council had participated “ for a fair housing bill,

in the Chambers of the Wisconsin State Assembly in Madison, 
Wisconsin on September 29, 1969 and subsequent conviction for 
contempt by that Assembly on October 1, 1969. The United States 
District Court for the Western District of Wisconsin subsequently 
granted appellant’s habeas corpus application challenging his con­
tempt conviction and sentence, on the ground that the Wisconsin 
Assembly had convicted him without providing him the procedural 
safeguards guaranteed by the Due Process Clause of the Four­
teenth Amendment. Groppi v. Leslie, 311 F. Supp. 772 (W.D. 
Wis. 1970). See also the connected case of Groppi v. Froehlich, 
311 F. Supp. 765 (W.D. Wis. 1970). The court’s decision in 
Groppi v. Leslie had, of course, no effect on the previous revoca­
tion of appellant’s probation, and appellant therefore remains sub­
ject to imposition of his six-month sentence of imprisonment pend­
ing this Court’s decision on the merits of the instant case.



5

to consider the right of freedom of movement within the 
confines of our country . . . ” (A. 126).

On August 31, 1967, Father Groppi along with an as­
sembly of black and white people from the community met 
at St. Boniface’s Church [located at the corner of North 
11th and West Meinecke] to discuss “ the Mayor’s Procla­
mation, the demonstrations, and the arrest of Youth Council 
members and people of the community on the previous 
night” (A. 126). Between 7 P.M. and 8 P.M. three to four 
hundred persons from that assembly decided to march 
from the church to City Hall in order to “ question the 
Mayor on the Proclamation” (A. 127). They marched very 
slowly in a peaceful and orderly fashion, three or four 
abreast, arms locked, south on North Eleventh Street 
(A. /2-/3, 78, 83, 123). Father Groppi was one of those at 
the head of the march (A. 133). The group turned east on 
West North Avenue, and continued marching (A. 78-79, 
81-83).

While the group was still on North Eleventh Street, prior 
to marching down West North Avenue, Inspector Ullius of 
the Milwaukee Police Department announced that the march 
was in violation of the Mayor’s proclamation (A. 79). 
Although Ullius used a bullhorn and repeated his warning, 
he testified that because of the “ singing and booing,” he 
did not know how many marchers actually heard him (A. 
79, 82-83). Appellant himself testified that he did not 
recall hearing any warning, although he did not deny that 
in fact one might have been given (A. 127, 133-34).

When the march continued Inspector Ullius ordered 
“police action, to stop the march” (A. 79-80, 83). Patrolman 
Armando Brazzoni, who had been walking alongside Father



6

Groppi, immediately arrested him (A. 83-84, 93, 98) by 
“ grabbing] him around the right shoulder and collar” 
(A. 98). There is no contention that Father Groppi offered 
any resistance. Patrolman Brazzoni and a Sergeant Miller 
took Father Groppi to a waiting paddy wagon (A. 87, 
98-99). After walking some twenty or thirty yards with 
the officers, and as he approached the paddy wagon (A. 
135), Father Groppi “became limp in body, and sat in the 
street” (A. 87, 98-99, 124). Father Groppi’s “ going limp” 
was not contested (A. 73, 135),3 nor was it a basis for the 
resisting arrest charge (A. 176-78).

2. The Resisting Arrest Charge.

Events subsequent to Father Groppi’s “ going limp” 
formed the basis of the charge of resisting arrest (A. 176- 
78). The police and appellant’s versions of these events 
were in sharp conflict. The State called as witnesses the 
three police officers who “ carried” Father Groppi from his 
“ limp” position on the street to the paddy wagon (A. 87, 98- 
99,110-12). Defense counsel called Father Groppi (A. 125), 
two newspaper reporters (A. 152, 155), and three marchers 
(A. 143, 160, 166), all of whom were near Father Groppi 
when the alleged resistance occurred (A. 127-29, 154-55, 
157-58, 145-47, 161-62,168-69).

The police officers testified that after Patrolman Braz­
zoni gave his shotgun to another officer (A. 99), he picked 
Father Groppi up from his limp position by the “upper 
part of his body, by the shoulders” (A. 88). At the same 
time Sergeant Miller picked up his right leg and an Offi­

3 When asked why he went limp, Father Groppi responded, “I 
was arrested a number of times in Civil Rights demonstrations, 
going limp, does not constitute resisting arrest, and I went limp” 
(A. 135).



7

cer Buchanan his left leg (A. 88). Buchanan had his 
night stick in a hand that was around Groppi’s leg (A. 
112, 115). The officers then carried Father Groppi to 
the paddy wagon (A. 88, 100, 112). Sergeant Miller tes­
tified that as they neared the wagon “ Father Groppi 
suddenly became violent . . .  He kicked out with his left 
leg at Officer Buchanan, catching him in the chest and
he [appellant] hollered out, ‘let go my leg y o u ............... ’ ”
(A. 89). Patrolman Brazzoni testified similarly but added 
that Father Groppi was “ kicking his feet in a motion, 
like pedaling a bicycle” during the entire time he was 
being carried (A. 99-101). When they arrived at the 
wagon, Father Groppi’s body jerked—“ I don’t know what 
caused the jerk” (A. 101), and at this time Father Groppi 
said, “ I want that man’s badge number” (referring to 
Officer Buchanan) (A. 102). Buchanan’s testimony did not 
materially differ from Brazzoni’s. He stated that when 
they arrived at the wagon he had been kicked by Father 
Groppi on the chest and knocked to one knee (A. 112).

Father Groppi’s version of the facts conflicted with that 
of the officers. He testified that while being carried to 
the wagon “ My foot began to hurt . . .  as if someone were 
digging their fingernails into my foot . . . ” (A. 128). This 
continued and as he arrived near the wagon he said to 
Brazzoni: “he [referring to Buchanan] is gouging his 
fingers into my foot,” and asked, “ what is that officer’s 
badge number . . .  I noticed he wasn’t wearing a badge . 
what is that officer’s name. . . . ” Brazzoni said “ that is for 
you to find out” (A. 129).4 Groppi conceded that he “ did 
react to the pressure placed on my leg” but only by at­

4 When Buchanan was asked on cross-examination why he didn’t 
wear a badge on the night of August 31, he responded that he 
was under orders from the Department not to wear one” and he 
further stated, “ I don’t question my superiors” (A. 114).



8

tempting to wiggle his foot free of the gouging. He flatly 
denied, however, that he had kicked Buchanan in the chest 
(A. 130, 139-40).

A reporter for the Milwaukee Journal, who was ap­
proximately 15 to 20 feet from the paddy wagon, testi­
fied that “ at no time when I was in the vicinity, did I 
hear him use any profanity” (A. 154). The chief photog­
rapher from WISN T.V., who was also standing about 
fifteen feet from the paddy wagon, stated that he did not 
see Father Groppi kick a police officer or hear him use 
profanity (A. 157).

Three other defense witnesses, all of whom were ar­
rested as marchers, testified that they saw no kicking and 
heard no profanity. On the contrary, they stated that 
Father Groppi was complaining about the gouging of his 
foot while being carried (A. 145-47, 161-64, 168-69).

During the jury’s deliberations, some members requested 
to have read “all testimony— of when Father Groppi was 
picked up in limp position and carried to police patrol 
wagon.” Their request was refused (A. 181-82).

3. Rulings of the Courts Below.

On September 26, 1967, prior to trial, appellant moved 
for a change of venue from the Circuit Court of Mil­
waukee County “ to a county where community prejudice 
against this defendant does not exist and where an im­
partial jury trial can be had” (A. 23). The motion re­
quested the court to “ take judicial notice of the massive 
coverage by all news media . . .  of the activities of this 
defendant . . .  or in the alternative, that the defendant 
be permitted to offer proof of the nature and extent 
thereof, its effect upon this community and on the right 
of defendant to an impartial jury trial.” In an attached



9

affidavit appellant alleged that he believed he could not 
receive an impartial jury trial in Milwaukee County be­
cause of the community prejudice caused by the massive 
and frequently adverse news coverage and publicity, as 
well as critical editorials, he had received as a civil rights 
leader in all of the news media in Milwaukee County (A . 
24-25). The motion was denied by the trial judge October 
2, 1967, “because this is a misdemeanor case and not a 
felony. A nd the Wisconsin statute [Wis. Stat. A n n . 
§956.03(3)] does not provide for a change of venue in a 
misdemeanor matter. . . . Not in a misdemeanor matter; 
a felony only” (A . 9).5 On December 11, 1967, appellant 
entered a plea of not guilty, but soon after his trial began 
a juror became ill and a mistrial was declared. The case 
was continued to February 8, 1968.

On January 10, 1968, prior to appellant’s second trial, 
he moved to dismiss on the ground that the Wisconsin 
change of venue statute was unconstitutional because it 
allowed for a change of venue on the grounds of com­
munity prejudice only in felonies and not in misdemeanors 
(A. 37). At the beginning of appellant’s trial, the court 
denied this motion noting that this was a matter for the 
legislature, not the courts, to resolve (A. 69-70).

After a verdict of guilty was returned by the jury on 
February 9, 1968, appellant moved to set aside the ver­
dict and enter a verdict of not guilty or, alternatively, 
order a new trial, in part on the grounds that (1) the 
trial court erred in denying defendant’s motion for a

5 Wis. Stat. Ann . §956.03(3) states:
If a defendant who is charged with a felony files his affidavit 
that an impartial trial cannot be had in the county, the court 
may change the venue of the action to any county where an 
impartial trial can be had. Only one change may be granted 
under this subsection.



10

change of venue on the ground that the change of venue 
statute applied only to felonies; and (2) that the change 
of venue statute was unconstitutional in that it denied to 
a defendant charged with a misdemeanor the right to a 
fair trial as required by the Fourteenth Amendment to 
the United States Constitution (A. 52-54). The trial court 
denied the motion.

On appeal, the Supreme Court of Wisconsin squarely 
rejected appellant’s contentions that Wis. Stat. A n n . 
§956.03(3) both on its face and as applied in the instant 
case was in violation of due process of law as guaranteed 
by the Wisconsin and federal constitutions and of the 
Equal Protection Clause of the federal constitution.

The majority opinion specifically interpreted Wis. Stat. 
A n n . §956.03(3) as providing “ that a change of venue 
based on community prejudice shall only be permitted in 
felony cases” (A. 211). It upheld the constitutionality of 
this limitation on the following grounds:

We think that there is a sufficient difference between 
a felony and a misdemeanor to warrant the distinc­
tion.

. . . Moreover, it would he extremely unusual for 
a community as a whole to prejudge the guilt of any 
person charged with a misdemeanor. Ordinarily com­
munity prejudice arises when a particularly horren­
dous crime has been perpetrated. These are the only 
crimes that receive widespread and prolonged atten­
tion from the news media. But the general public just 
does not become incensed at the commission of a mis­
demeanor.

The court also takes judicial notice of the vast num­
ber of misdemeanors that are prosecuted as opposed 
to felonies. As a matter of necessity, the prosecution 
of misdemeanors has been simplified as much as pos­
sible by the legislature. This is not because the legis­



11

lature is not concerned with justice, but because so­
ciety demands that efficiency in the administration of 
justice be given consideration along with absolute 
fairness. (A. 209-10)

The majority also noted that change of venue was only 
one method of ensuring a fair trial, and that a defendant 
in a misdemeanor case could rely instead on his rights 
to a continuance and to challenge jurors in voir dire pro­
ceedings; and that he also had the alternative of proving 
after verdict that he had been denied a fair trial (A. 213- 
14).

Chief Justice Hallows concurred solely on the ground 
that appellant had not proved he had been prejudiced. 
He agreed with the minority that “ an accused has a con­
stitutional right to a fair trial in misdemeanor cases and 
to attain that end may have a change of venue if he shows 
community prejudice” (A. 230-31).

Justices Heffernan and Wilkie dissented:

The majority opinion concludes that it is just and 
proper to afford fewer constitutional guarantees of 
fairness to a misdemeanant than to a felon. On the 
face of it, this proposition runs counter to all princi­
ples of Anglo-American jurisprudence; however, fac­
tual distinctions, it is contended, make it fair to afford 
fewer protections to one charged with a misdemeanor. 
It is asserted in the opinion of the majority of the 
Court that the penalties are more severe in the case of 
felonies. This is, of course, true, but it is a fact entirely 
irrelevant to the issue. It is, in essence, an assertion 
that an unfairness that results in only a small sentence 
is of such a minor consequence as to be de minimis. The 
mere statement of the proposition is its own refutation. 
Concededly, the legislature has seen fit to confer addi­
tional safeguards to defendants accused of major 
crimes (preliminary hearing, e .g .); however, it is pow­



12

erless to reduce the minimum safeguards of fairness 
that are assured by both the Wisconsin and United 
States Constitutions to all criminal defendants.

The opinion of the court also asserts that community 
prejudice is not aroused by the commission of a mis­
demeanor and that, therefore, a change of venue is 
needless. The simple answer to this proposition is that 
if there is no community prejudice, it is within the 
discretion of the trial judge to deny a change of venue. 
This determination is dependent upon the facts as they 
subjectively appear and not upon the objective nature 
of the crime or whether it is labeled a felony or a 
misdemeanor. The identity of the defendant and his 
image in the community is also relevant and may he a 
determining factor in whether or not there is com­
munity prejudice, irrespective of the nature or serious­
ness of the crime charged. (A. 219-20)

# # # # #
In the instant case, a jury is guaranteed by the Wis­

consin Constitution, and Duncan makes it clear that a 
jury must be impartial. A  litigant is constitutionally 
entitled to invoke the device of change of venue to 
determine whether or not a trial may be had free from 
the contamination of community prejudice. Where the 
trial of a misdemeanant is before a judge, under Wis­
consin law he may file an affidavit of prejudice if he 
thinks it necessary to assure a fair trial. He should 
not have a lesser right to a fair and impartial trial 
if he invokes his constitutional prerogative of trial by 
jury. (A. 222-23)

The dissent also noted that defendant had been denied 
any opportunity to make a record of community prejudice 
(A. 228-29); and that the alternatives to change of venue 
available to a misdemeanant, such as voir dire procedures, 
could not necessarily ensure an impartial trial (A. 226; 
224-28).



13

Summary of Argument

It is appellant’s contention in Argument I, infra, pp. 15- 
33, that the right to change of venue is, under certain 
circumstances, a constitutionally required means of ensur­
ing a criminal defendant’s right to an impartial jury and, 
therefore, that in denying appellant all opportunity for 
a change of venue, regardless of the extent of community 
prejudice, in a case in which he was constitutionally en­
titled to a jury trial, Wisconsin violated his rights under 
the Sixth and Fourteenth Amendments to the United 
States Constitution.

Appellant was charged with a misdemeanor punishable 
by a maximum in excess of six months’ imprisonment, and 
therefore entitled under the federal constitution to trial by 
an impartial jury. The common law right to change of 
venue has been traditionally considered an integral part 
of the right to jury trial and is today guaranteed to crim­
inal defendants in every state and in the federal system. 
And in recent years this Court has recognized that in 
certain cases it is a constitutionally required means of 
ensuring an impartial jury. While the Wisconsin Supreme 
Court contended that the defendant in a misdemeanor 
case could rely on such procedures as the voir dire, con­
tinuance, and post-verdict showings that he had in fact not 
received a fair trial, these procedures have not alone 
proven adequate to protect defendants against the danger 
of a trial contaminated by community prejudice. There­
fore, in denying appellant any opportunity to show that 
change of venue was required to ensure a fair trial in the 
instant case, Wisconsin violated his federal constitutional 
rights to an impartial jury and to due process of the law.

Appellant further contends in Argument II, infra, pp. 
34-37, that since Wisconsin has chosen to grant the right 
to change of venue to persons charged with felonies, and 
has recognized it as an essential means of protecting the 
right to a fair trial, denial of that right to appellant solely 
because he was charged with a misdemeanor violated his 
right to equal protection of the law under the Fourteenth 
Amendment. As the instant case reveals, misdemeanor 
prosecutions may well involve community prejudice threat­
ening to a defendant’s right to an impartial trial. The 
distinction between felony and misdemeanor in Wisconsin



14

is based on no coherent or consistent principle of classifi­
cation, and is totally unrelated to the reasons that change 
of venue should be granted. Therefore, the Wisconsin stat­
ute absolutely denying persons charged with misdemeanors 
any right to change of venue violates the Equal Protection 
Clause.

Argument
Introduction

Both the trial court and the Wisconsin Supreme Court 
clearly held that Wis. Stat. A n n . §956.03(3) prohibits ab­
solutely a change of venue in all misdemeanor cases {supra, 
pp. 9-10). Therefore this Court is squarely presented 
with the question whether a State which provides a right 
to change of venue in felony cases can deny that right to 
defendants in misdemeanor cases, punishable by a maxi­
mum of up to one year imprisonment. Appellant contends 
that such a denial constitutes a violation of the right to a 
fair and impartial trial, and to the equal protection of the 
laws as guaranteed by the Sixth Amendment and by the 
Due Process and Equal Protection Clauses of the Four­
teenth Amendment to the United States Constitution.

It is clear that in the instant case appellant had no op­
portunity to show that community prejudice against him 
was such that he could not obtain a fair and impartial jury 
trial in Milwaukee County.6 But this case nevertheless is

6 As noted supra pp. 8-9, in his motion for change of venue 
appellant asked the court to take judicial notice of the massive 
and prejudicial news coverage he had received or, alternatively, 
to allow him to offer proof as to its nature and effect, in addition 
to filing an affidavit describing in brief such coverage. Since the 
trial court denied that motion on the ground that the Wisconsin 
statute did not permit change of venue in a misdemeanor case, 
there was no occasion or opportunity for him then or subsequently 
to provide further proof of the nature and extent of coverage and 
the probability that community prejudice was such as to prevent 
his receiving a fair and impartial trial. The Wisconsin Supreme 
Court argued that appellant had an opportunity after conviction 
to prove that he had in fact been denied his right to an impartial



15

one in which the potential for violation of appellant’s right 
to a fair and impartial trial is obvious. Appellant was a 
well-known and controversial civil rights leader in Milwau­
kee County who had been subjected to widespread and 
largely hostile publicity. His charge for resisting arrest 
arose out of what the officials of Milwaukee obviously con­
sidered a major crime— that of violating the Mayor’s 
proclamation prohibiting marches and demonstrations. 
The crucial facts determinative of his guilt of the charge 
of resisting arrest were subject to conflicting testimony at 
trial. It was obviously essential that he be provided with 
all procedural safeguards necessary to ensure that the 
finders of fact would be impartial and base their verdict 
not on preconceived prejudice but on the evidence at trial.

I.

Wis. Stat. Ann. § 9 5 6 .0 3 (3 )  Violates the Sixth Amend­
ment and the Due Process Clause of the Fourteenth 
Amendment in Denying a Defendant’s Right to a Fair 
and Impartial Jury Trial by Totally Prohibiting a Change 
of Venue in Certain Serious Criminal Prosecutions Re­
gardless of the Extent of Community Prejudice.

Appellant had a constitutional right to a jury trial in 
the instant case,* 7 and it is clear that the right to jury trial

trial, but it made no contention that appellant ever had an op­
portunity to prove that community prejudice existed such as to 
threaten his chances of receiving an impartial trial and to warrant 
granting of a change of venue.

7 Appellant was charged with a misdemeanor punishable by a 
maximum of one year imprisonment and a five hundred dollar fine 
(supra p. 3). In Baldwin v. New York, 38 U.S. L. Wk. 4554 
(June 22, 1970), this Court held that the States were required 
under the Sixth Amendment, as applied to the States through the 
Fourteenth, to provide defendants the right to jury trial for of­
fenses punishable by terms in excess of six months.

Appellant was also entitled to a jury trial under the Wisconsin 
Constitution. Wis. Const. Art. 1, §7 provides that in all crimes 
prosecuted by indictment or information the accused has a right 
“to a speedy public trial by an impartial jury of the county or



16

includes the right to an impartial jury,8 and that this right 
is guaranteed to defendants in state prosecutions through 
the Fourteenth Amendment.9 This case, therefore, poses 
the question whether change of venue may, in some cases, 
be a constitutionally required means of assuring the crimi­
nal defendant’s right to an impartial jury. It is appellant’s 
contention that it may and, therefore, that in denying 
appellant any right to change of venue, regardless of the 
extent of community prejudice, solely because he was 
charged with a misdemeanor, Wisconsin violated his right 
to an impartial jury trial as guaranteed by the Sixth and 
Fourteenth Amendments.

The right to change of venue is “ fundamental to the 
American scheme of justice” , and traditionally available

district wherein the offense shall have been committed.” See also 
Wis. Stat. A nn . §957.01(1) (1962). Wisconsin courts have found 
a Constitutional right to jury trial in all misdemeanors. See 
State ex rel. Murphy v. Foss, 34 Wis. 2d 501, 149 N.W.2d 595 
(1967) ; State ex rel. Sauk County District Attorney v. Gollmar, 
32 Wis. 2d 406, 145 N.W.2d 670 (1966).

8 The Sixth Amendment to the United States Constitution pro­
vides: “ In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury. . . . ” 
(Emphasis added.) The Wisconsin Constitution also guarantees 
an “ impartial jury.” See n. 7, supra; see also State v. Nutley, 24 
Wis. 2d 527, 129 N.W.2d 155 (1964), cert, denied, 380 U.S. 918
(1965) .

9 See, e.g., Rideau v. Louisiana, 373 U.S. 723 (1963) ; Irvin v. 
Dowd, 366 U.S. 717 (1961) ; Parker v. Gladden, 385 U.S. 363
(1966) ; Turner v. Louisiana, 379 U.S. 466 (1965); Sheppard v. 
Maxwell, 384 U.S. 333 (1966) ; United States ex rel. Bloeth v. 
Denno, 313 F.2d 364 (2d Cir.), cert, denied, 372 U.S. 978 (1963); 
cf. In Re Murchison, 349 U.S. 133, 136 (1955) (“A  fair trial in a 
fair tribunal is a basic requirement of due process” ) ; Tumey v. 
Ohio, 273 U.S. 510 (1927) (due process right to a disinterested 
finder of fact) ; Thompson v. City of Louisville, 362 U.S. 199 (1960) 
(due process right to have decision by finder of fact substantially 
determined by evidence at trial).



17

“ in the context of the criminal processes maintained by the 
American States.” Duncan v. Louisiana, 391 U.S. 145, 149 
and n. 14 (1968). It was developed early in the history of 
the common law courts of England,10 11 became a part of our 
common law heritage,11 and is now guaranteed to criminal

10 See, e.g., Rex v. Harris, 3 Burr. 1330, 1333, 97 Eng. Rep. 858, 
859 (1762) (Lord Mansfield) (dictum) :

Notwithstanding the locality of some sorts of actions, or of 
informations for misdemeanors, if the matter cannot be tried 
at all, or cannot be fairly and impartially tried in the proper 
county, it shall he tried in the next adjoining county.

See also Rex v. Cowle, 2 Burr. 834, 859, 97 Eng. Rep. 587, 602 
(1759) :

But the law is clear and uniform, as far hack as it can he 
traced. Where the Court has jurisdiction of the matter, if, 
from any cause, it cannot be tried in the place, it shall be 
tried as near as may be.

See generally, Crocker v. Justices of Superior Court, 208 Mass. 
162, 94 N.E. 369 (1911) (describing at length common law history 
of the right to change of venue) ; Barry v. Truax, 13 N.D. 131, 99 
N.W. 769, 774-75 (1904) ; State v. Albee, 61 N.H. 423, 60 Am. 
Rep. 325 (1881).

11 See, e.g., Crocker v. Justices of Superior Court, 208 Mass. 162, 
94 N.E. 369, 376-77 (1911) :

This review demonstrates that the great weight of author­
ity supports the view that courts, which by statute or custom 
possess a jurisdiction like that of the King’s Bench before our 
Revolution, have the right to change the place of trial, when 
justice requires it, to a county where an impartial trial may 
be had.

If the matter is considered on principle and apart from 
authority, the same conclusion is reached. It is inconceivable 
that the people who had inherited the deeply cherished and 
hardly won principles of English liberty and who depleted 
their resources in a long and bloody war to maintain their 
rights of freemen, should have intended to deprive their courts 
of the power to secure to every citizen an impartial trial be­
fore an unprejudiced tribunal. . . . There can be no justice in 
a trial by jurors inflamed by passion, warped by prejudice, 
awed by violence, menaced by the virulence of public opinion 
or manifestly biased by any influences operating either openly 
or insidiously to such an extent as to poison the judgment and



18

defendants in every State,12 as well as in the federal sys-

prevent the freedom of fair action. Justice cannot be assured 
in a trial where other considerations enter the minds of those 
who are to decide than the single desire to ascertain and de­
clare the truth according to the law and the evidence. A court 
of general jurisdiction ought not to be left powerless under 
the law to do within reason all that the conditions of society 
and human nature permit to provide an unprejudiced panel 
for a jury trial. . . .  .

The purpose for which courts are established is to do jus­
tice. . . . Where questions of fact are to be settled as in all 
criminal prosecutions for felony, and in a large number of 
other causes, a jury is the instrumentality provided by the 
law for determining those facts. Government itself fails if a 
jury of just men with minds open only to the truth as shown 
by the evidence cannot be provided.

See also Barry v. Truax, 13 N.D. 131, 99 N.W. 769, 772 (1904) : 
It is entirely clear, therefore, that the right of trial by jury 
which is secured by the Constitution is the right of trial by 
jury with which the people who adopted it were familiar, 
and . . . that right . . . gave to the prosecution, as well as the 
defense, the right to change the place of trial when necessary 
to secure a fair and impartial trial.

See also 56 Am. Jur. §42:
[According to the weight of authority as well as sound 

reasoning, common law courts have inherent power, particu­
larly in criminal cases, to order a change of venue for pur­
poses of securing impartial trials; the power of the English 
courts to transfer the trial of transitory actions, thoroughly 
ingrafted upon the common law long before the independence 
of this country, is a part of our common law heritage.

12 The right to change of venue is guaranteed specifically in the 
Constitutions of many states, and in other states by either statute 
or court rule. See Ala. Const. Art. IV, §75, Ala. Code Tit. 15, 
§267 (1940) ; Alaska Stat. §22.10.040 (Supp. 1962) ; Ariz. R. 
Crim P. 201-11; Ark. Const. Art. 2, §10, Ark. Stat. Ann. §43- 
1501 (1947); Cal. Pen. Code §§1033.5, 1431; Colo. Const. Art. 
V  §37 Colo. Rev. Stat. Ann. §39-9-4 (1963); Conn. Gen. Stat. 
Rev. §’54-78 (1958); Del. Const. Art. I, §9, Del. Super. Ct. 
(Crim.) R. 21(a); Fla. Stat. Ann. §911.02 (1944); Ga. Const. 
Art. VI, §2-5001, Ga. Code Ann. §27-1101, 1201 (1935); Hawaii 
Const Art. I, §11, Hawaii Rev. Stat. §711-18 (1968) ; Idaho 
Code Ann. §19-1801 (1948); III. Ann. Stat. eh. 38, §114-6



19

tem.13 The recent comprehensive study by the American 
Bar Association of the effect of prejudicial publicity on the 
right to a fair trial concluded that the problem was far more 
serious, and involved more cases, than had previously been 
assumed,14 and that change of venue was a useful and often 
essential means of ensuring defendants an impartial jury.15

(1963) ; Ind. Rules op Procedure, Tr 77, Cr 12 (1970) • Iowa 
Code Ann. §§762.13, 778.1 (1946); Kan. Stat. Ann. §62-1318
(1964) ; Ky. Rev. Stat. Ann. §§452.210, 452.360 (1963) ; La. Code 
Crim. P. §§621, 622 (1966); Me. R. Crim. P. 21, Dist. Ct. Crim. 
R. 21 (1969) ; Md. Const. Art. IV, §8, Md. Ann. Code Art 75 
§44 (1957) ; Mass. Ann. Laws ch. 277, §51 (1956) ; Mich. Comp.’ 
Laws Ann. §762.7 (1968); Minn. Stat. Ann. §627.01 (1947) • 
Miss. Code Ann. §2508 (1956) ; Mo. Ann. Stat. §545.430 (1949)’ 
Mo. Sup. Ct. R. Crim. P. 22.05, 30.01; Mont. Rev. Codes Ann’ 
§95-1710 (Repl. 1967) ; Neb. Rev. Stat. §25-410 (1964) ; Nev. Rev. 
Stat. §174.455 (1969); N. II. Const. Pt. I, art. 17; NJ Rev 
Stat. §2A:2-13 (1952) ; N. M. Stat. Ann. §21-5-3 (Supp. 1965) • 
N. Y. Code Crim. P. §344; N. C. Gen. Stat. §1-84 (Repl. 1969) • 
N. D. Cent. Code §29-15-01 (1960); Ohio Rev. Code Ann’. 
§2931.29 (Page 1953) ; Okla. Const. Art. II, §20, Okla. Stat 
Ann. Tit. 22, §561 (1937); Ore. Rev. Stat. §131.400, 131.420 
(Supp. 1963) ; Pa. Const. Art. Ill, §23, Pa. Stat. Ann. Tit. 19 
§551 (1930); R. I. Gen. Laws Ann. §8-2-29 (1956) ; S. C. Const! 
Art. VI, §2, S. C. Code op Laws §17-457; S. D. Comp. Laws 
§23-28-7 (1967) ; Tenn. Code Ann. §40-2201 (1955) ; Tex. Const. 
Art. Ill, §45, Tex. Code Crim. P. Ann. Art. 31.01 (1966) ; Utah 
Code Ann. §77-26-1 (1953); Vt. Stat. Ann. Tit. 13, §4631 
(1969); Va. Code Ann. §19.1-224 (1950) ; Wash. Rev. Code Ann. 
§10.25.070 (1961) ; W. Va. Const. Art. Ill, §14, W. Va Code 
Ann. §62-3-13 (1966) ; Wis. Stat. Ann. §956.03(3) (Supp. 1967) ; 
Wyo. Stat. Ann. §1-59 (1957), Wyo. R. Crim. P. 23 (1968).

Some states additionally authorize a change of venire, a pro­
cedure whereby a jury is selected from a community free from 
prejudice and brought to the trial district. Note, Community 
Hostility and the Bight to an Impartial Jury, 60 Colum. L Rev 
349, 365-66 (1960).

13 P. R. Crim. P. 21(a).
14 Standards Relating to Fair Trial and Free Press, 22-25 

(A.B.A. Project on Minimum Standards for Criminal Justice, 
1966) [hereinafter cited as Standards Relating to Fair Trial and 
Free Press].

15 Id. at 119-28; see also pp. 188, 248, 254.



2 0

This Court has made it clear in recent cases that a change 
of venue may under certain circumstances be constitution­
ally required under the Sixth and Fourteenth Amendments 
in order to protect the defendant’s right to an impartial 
jury. Thus Irvin v. Dowd, 366 U.S. 717, 728 (1961), held 
that the defendant had a due process right to be tried “ in 
an atmosphere undisturbed by so huge a wave of public 
passion . . . ” 16 Rideau v. Louisiana, 373 U.S. 723 (1963), 
found a change of venue constitutionally required because 
of the nature of the pre-trial publicity, without finding any 
need to consider the attitudes revealed by the jurors on 
voir dire.17 A  number of lower courts have found methods 
other than change of venue inadequate, in certain circum­
stances, to ensure an impartial trial.18 And, indeed, the 
Wisconsin Supreme Court itself has recognized that due

16 The statute involved in Irvin provided for only a single 
change of venue. This Court found it not subject to attack on 
due process grounds because it had been interpreted by the highest 
court of the State to permit a second change if “ the totality of 
the surrounding facts” indicated that such a change was needed 
to ensure a fair trial by an impartial jury (366 U.S. at 721). 
The clear implication was that a statute which did absolutely 
prohibit a change of venue would be subject to attack on due 
process grounds.

17 In other recent cases this Court has held that in determining 
whether the defendant received the impartial jury trial guaranteed 
by the Fourteenth Amendment it was unnecessary to find actual 
bias, but was enough that a significant potential for bias existed. 
Turner v. Louisiana, 379 U.S. 466 (1965) ; Estes v. Texas, 381 
U.S. 532 (1965); Sheppard v. Maxwell, 384 U.S. 333, 351-52 
(1966).

18 See, e.g., United States v. Florio, 13 F.R.D. 296 (S.D.N.Y. 
1952); United States v. Parr, 17 F.R.D. 512 (S.D. Tex. 1955); 
Bubenstein v. State, 407 S.W.2d 793 (Tex. Ct. Crim. App. 1966) 
(holding it was reversible error for trial court to deny motion for 
change of venue); Rogers v. State, 155 Tex. Crim. 423, 236 S.W.



2 1

process might require a change of venue. State v. Nutley, 
24 Wis. 2d 527, 129 N.W.2d 155 (1964), cert, denied, 380 
U.S. 918 (1965).

Availability of change of venue as a means for ensuring 
the right to an impartial trial is essential because other 
methods of protecting defendants against the effects of 
community prejudice are in many cases seriously inade­
quate to the task. Thus the American Bar Association’s 
Report on Standards Relating to Fair Trial and Free 
Press, supra p. 19, n. 14, recognized serious deficiencies in 
the law presently governing such procedures as voir dire 
and continuance and recommended numerous changes to 
make such procedures more effective in protecting a defen­
dant s light to a fair trial, in addition to recommending 
fundamental changes in the release of news to and by the 
press. Nevertheless the Report concluded that even assum­
ing such changes were adopted change of venue would re­
main an essential means of protecting the defendant’s right 
to a trial free from contamination by community prejudice 
and, indeed, recommended liberalization of change of venue 
practice. It is certainly clear that under present law, in 
Wisconsin as elsewhere, other methods of protecting the

2d 141 (1951) (reversing on ground that failure to grant change 
of venue violated defendant’s right to impartial trial) ; Enriquez 
v. State, 429 S.W.2d 141, 142 (Tex. Ct. Crim. App. 1968) (dic- 
tum) ( . . .  it is apparent that the question of change of venue 
has become a question of constitutional dimension under the recent 
decisions of the Supreme Court of the United States” ). See also 
United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir ) 
cert denied, 372 U.S. 978 (1963) ; Juelich v. United States, 214 
F.2d 950 (5th Cir. 1954).



2 2

defendant’s right to an impartial trial are often wholly 
inadequate.19

The Wisconsin Supreme Court contended that the defen­
dant in a misdemeanor case could rely on “ the antiseptic 
measures of continuance and voir dire proceedings” [A. 
214].

But this Court explicitly recognized in Irvin v. Dowd 
and Rideau v. Louisiana, supra, p. 20, that voir dire may 
be inadequate because it is often impossible to determine, 
much less defeat, the subtle operation of prejudice in a 
criminal trial in a particular community.20 Voir dire is at 
best of limited effectiveness in determining whether jurors 
are prejudiced first because it depends on an unrealistic 
faith in jurors’ capacity to be completely candid about their

19 Thus, for example, in State v. Stevens, 26 Wis. 2d 451, 132 
N.W.2d 502 (1965), the trial judge’s method of determining 
whether the jury had heard an allegedly prejudicial radio broad­
cast was to ask them en Hoc, prefacing his question with a re­
minder that he had admonished them previously not to listen to 
any broadcast relating to the trial; when no juror answered he 
asked them whether they had followed his admonition and a num­
ber of voices answered yes; this procedure was upheld on appeal. 
It is the general practice in Wisconsin to allow the jury to 
separate until the cause is submitted to it for final deliberation 
except in capital or life imprisonment cases. State v. Cooper, 4 
Wis. 2d 251, 89 N.W.2d 816 (1958) ; Note, Wisconsin Criminal 
Procedure, 1966 Wis. L. Rev. 430, 479.

20 On the ineffectiveness of voir dire see generally Standards 
Relating to Fair Trial and Free Press, 54-67, 75, 130-38. See also 
Broeder, Voir Dire Examinations: An Empirical Study, 38 So. 
Cal. L. Rev. 503 (1965). This study was based on a University 
of Chicago jury project which examined 23 jury trial cases in a 
federal district court in the mid-west, and included interviews of 
lawyers and of 225 jurors. It found that the voir dire examina­
tions were “perfunctory, stilted affairs, quickly concluded . . . ” ; 
and that voir dire was grossly ineffective in weeding out unfavor­
able jurors and even in getting information that would show them 
to be unfavorable (pp. 503, 505, 528).



23

opinions and ability to act impartially. Jurors are under 
a variety of pressures in the voir dire situation to assert 
that they can act impartially,21 and empirical studies have 
recently given support to the widely-held assumption that 
they are in fact less than candid.22

But even assuming that jurors were completely candid, 
the fact is that the voir dire is a totally ineffective tool for 
getting at the unconscious prejudices which are the most 
serious threat to a defendant’s right to a fair trial.23

Defense counsel are, of course, in an extremely difficult 
position in attempting to get at prejudice, conscious or 
unconscious, since they run the risk of antagonizing jurors

21 Broeder, supra n. 20, 38 So. Cal. L. Rev. at 526 ( “ Once in 
court almost all veniremen wanted to be selected and, in addition 
most felt that being challenged would adversely reflect upon their 
ability to be fair and impugn their good faith” ) ;  Standards Re­
lating to Fair Trial and Free Press, 57. See Irvin v Dowd 366 
U.S. 717, 728 (1961) :

No doubt each juror was sincere when he said that he would 
be fair and. impartial to petitioner, but the psychological im­
pact requiring such a declaration before one’s fellows is often 
its father.

22 Broeder, supra n. 20, 38 So. Cal. L. Rev. at 506, 513-15, 528- 
Standards Relating to Fair Trial and Free Press, 57, 61, 186-87. '

28 Standards Relating to Fair Trial and Free Press, 61-66.
. For cases reversing on the grounds that jurors’ statements of 
impartiality simply cannot be accepted in the face of significant 
potential for prejudice; see, e.g., Irvin v. Dowd, 366 U.S. 717, 728 
(1961); United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2nd 
Cir.), cert, denied, 372 U.S. 978 (1963) ; Delany v. United States, 
199 F.2d 107 (1st Cir. 1952) ; United States ex rel. Sheffield v. 
Waller, 126 F. Supp. 537, 542 (W.D. La. 1954), applic. for prob 
cause denied, 224 F.2d 280 (5th Cir. 1955), cert, denied, 350 U S' 
922 (1955) ; People v. McKay, 37 Cal. 2d 792, 236 P 2d 145 
(1951); People v. Hryciuk, 5 111. 2d 176, 184, 125 N.E.2d 61, 65 
(1954). See generally Note, Impartial Jury—20th Century’Di­
lemma: Some Solutions to the Conflict Between Free Press and 
Fair Trial, 51 Coen. L. Q. 306, 316 (1966).



24

by such attempts, during a proceeding which constitutes 
their first contact with the jury and serves as an important 
opportunity for engaging its sympathy.24

Finally, even assuming effectiveness of voir dire in elim­
inating jurors likely to be prejudiced, in a case which has 
received a great deal of publicity it may be impossible to 
obtain an impartial jury except by limiting it to that part 
of the public which is uninformed of and disinterested in 
public affairs and hardly likely to constitute the best 
jurors. It is for this reason, at least in part, that voir dire 
practice allows jurors to sit who have not only read or 
heard about the case, but have formed opinions of the 
defendant’s guilt, so long as such opinions are not abso­
lutely fixed, and the juror can assert he will be able to 
decide on the evidence.25 In a time of increasing news cov­
erage this may be necessary to ensure that the informed, 
intelligent public can qualify as jurors, but it is also an­
other reason why change of venue is of increasing impor­
tance in protecting the right to a fair trial.

While a continuance may sometimes serve the same 
function as a change of venue, by allowing pervasive com­
munity prejudice to dissipate, there are obvious reasons

24 A msterdam, Segal & Miller, Trial Manual for the De­
fense of Criminal Cases (1967) §339 [hereinafter cited as 
A msterdam Trial Manual] ; Broeder, supra n. 20, 38 So. Calif. 
L. Rev. at 505, 526-27 (Broeder points out the danger of antagoniz­
ing the court as well as jurors by prolonged examinations) ; Stand­
ards Relating to Fair Trial and Free Press, 126-27.

25 This is the rule both in Wisconsin (State v. Nutley, 24 Wis. 2d 
527, 129 N.W.2d 155, 162-63 (1964), cert, denied, 380 U.S. 918 
(1965)), and generally (see e.g., Note, Community Hostility and 
the Right to an Impartial Jury, 60 Colum. L. Rev. 349, 356-59 
(I960); Standards Relating to Fair Trial and Free Press, 59-60, 
126-27, 249; see also A msterdam, Trial Manual §§326-340).



25

why it often cannot be an effective substitute: for ex­
ample, publicity may revive when the case is brought to 
trial, or delay may be prejudicial by allowing for the 
death or disappearance of witnesses, or otherwise violate 
the defendant’s constitutional right to a speedy trial.26

The Wisconsin Supreme Court has itself recognized that 
voir dire and continuance are not alone sufficient to guar­
antee an impartial trial in all cases.27 Similarly the W is­
consin Legislature has recognized the importance of change 
of venue as a means for ensuring a fair trial: not only 
is it available in all felony cases, but the right to change 
of venue exists in all cases tried by the court regardless 
of whether they are felonies, misdemeanors, ordinances 
or traffic cases. Wis. Stat. A n n . §956.03 (1965).

The Wisconsin Supreme Court also contended that the 
right to change of venue in misdemeanor cases could be 
denied because the defendant had the alternative of prov­
ing after conviction that he had in fact been denied a fair 
and impartial trial. This is obviously a constitutionally 
inadequate alternative. This Court has recognized in a 
number of recent cases that actual prejudice may be im­
possible to prove and for that reason rules must be fash­

26 See e.g., Note, supra n. 23, 51 Corn. L. Q. 306 at 314-15 (1966).
27 See, e.g., State v. Nutley, 24 Wis. 2d 527, 129 N.W.2d 155 

(1964), cert, denied, 380 U.S. 918 (1965), supra p. 21, noting 
that due process may require change of venue; State ex rel. Schul- 
ter v. Roraff, 39 Wis. 2d 342, 159 N.W.2d 25, 31 (1968) ( “ It is true 
the ineffectiveness of voir dire and judicial admonition to correct 
prejudice have been recognized. . . . But the ineffectiveness of such 
methods depends on the particular circumstances in each case” ) ; 
cf. State v. Woodington, 31 Wis. 2d 151, 166, 142 N.W.2d 810, 817 
(1966) (“the remedies in publicity cases are change of venue, con­
tinuance, and careful selection of a jury” ).



2 6

ioned based on the potential for prejudice.28 Additionally, 
such a remedy is highly inefficient and disruptive of the 
administration of justice. It puts the defendant to poten­
tially continuous rounds of trial, burdening both him and 
the judicial system, and it in no way ensures that the jury 
will ever be drawn from an unbiased source. This Court 
recognized in Sheppard v. Maxwell:

we must remember that reversals are but palli­
atives; the cure lies in those remedial measures that 
will prevent the prejudice at its inception.29

If, then, change of venue may, depending on the circum­
stances of the particular case, be a necessary means of 
ensuring an impartial jury trial, it is clear that Wisconsin 
cannot entirely deny the right to change of venue in all 
misdemeanor cases. Since the misdemeanor charged in the 
instant case involved a penalty in excess of six months’ 
imprisonment, appellant was entitled under the federal 
constitution to an impartial jury trial (supra pp. 15-16, 
nn. 7-9) and, therefore, to all procedures essential to en­
sure that the jury provided was in fact impartial. More­
over, since Wisconsin itself provides a right to jury trial 
in all misdemeanors (supra n. 7, pp. 15-16), the right to 
change of venue cannot be limited to cases where the 
maximum penalty exceeds six months. The right to “ [a]

28 See Bideau v. Louisiana, 373 U.S. 723 (1963) and cases cited 
supra n. 17.

29 384 U.S. 333, 363 (1966). Thus reversals are often denied on 
the grounds that defendant should have sought relief from the 
effects of prejudicial publicity prior to trial. See, e.g., Darcy v. 
Handy, 351 U.S. 454, 462-64 (1956) ; United States v. Rosenberg, 
200 F.2d 666 (2nd Cir. 1952), cert, denied, 345 U.S. 965 (1953).



27

fair trial in a fair tribunal is a basic requirement of due 
process,” 30 and cannot be denied even in so-called “ petty” 
offenses.31 If a state chooses to provide a jury as the trier 
of fact, then it is bound under the federal constitution to 
ensure that that jury is impartial.32

The Wisconsin Supreme Court attempted to justify 
denial of the right to a change of venue in misdemeanor 
cases on the ground that ordinarily the community only 
prejudges the guilt of a person charged with a “ horren­
dous” crime since only such crimes receive “widespread 
and prolonged attention from the news media,” and that 
“the general public just does not become incensed at the 
commission of a misdemeanor” (A. 209). But as the dis­
sent put i t : “ The simple answer to this proposition is that 
if there is no community prejudice, it is within the dis­
cretion of the trial judge to deny a change of venue” 
(A. 220). Moreover, as noted swpra p. 25, Wisconsin it­
self provides for a change of venue on grounds of com­
munity prejudice in cases tried to the court whether they 
be felonies, misdemeanors, ordinances or traffic cases.33 
While it may well be true that felonies are more likely, on 
the whole, to involve problems of community prejudice,

30 In re Murchison, 349 U.S. 133,136 (1955).
31 See, e.g., Thompson v. Louisville, 362 U.S. 199 (1960), finding 

a violation of the due process right to a fair trial in a case involv­
ing conviction of an ordinance in a police court.

32 See, e.g., Turner v. Louisiana, 379 U.S. 466 (1965), and other 
cases cited supra, n. 9; see generally A msterdam, Trial Manual 
§315.

33 This raises the additional question as to whether Wisconsin 
has placed an unconstitutional burden on the right to jury trial 
in misdemeanor cases by allowing for a change of venue on grounds 
of community prejudice only where the defendant is tried by the 
court.



28

the factors contributing to such prejudice are varied and 
may have little or nothing to do with whether the crime 
charged is technically classified as a felony or a misde­
meanor. Thus prejudice may be aroused because of activi­
ties related to but not contained in the technical charge,34 
because of the controversial character of the person 
charged,35 or because the crime affected a large number 
of people in the community.36

Indeed, the Wisconsin Supreme Court’s reasoning is re­
futed by the facts of this case. Appellant is a contro­
versial figure who has spoken out and participated in 
marches and demonstrations against racial discrimination 
in his community. It is beyond dispute that his goals and 
activities have stirred many to anger and hostility against 
him, and have received prolonged attention from the news 
media in Milwaukee. It is obvious that the general public 
has often “ become incensed,” to use the language of the 
Wisconsin Supreme Court, at his behavior, just as por­
tions of the general public became incensed at that of other 
civil rights leaders. His charge of resisting arrest, while 
technically a misdemeanor, arose out of what the officials 
of Milwaukee obviously considered a crime of major pro­
portions— that of violating the Mayor’s proclamation by 
leading a march. It is simply erroneous to assert that men

34 See, e.g., United States v. Dioguardi, 147 F. Snpp. 421 (S. D. 
N.Y. 1956) (continuance granted; conspiracy to transport person 
in interstate commerce to avoid prosecution for having blinded 
and disfigured well-known newspaper columnist by throwing acid 
in his face).

35 Estes v. Texas, 381 U.S. 532 (1965); United States v. Parr, 
17 F.E.D. 512 (S.D. Tex. 1955); Austin, Prejudice and Change 
of Venue, 68 Dick. L. Rev. 401, 402 (1964).

36 See Note, Community Hostility and the Right to an Impartial 
Jury, 60 Colum. L. Rev. 349, 364 (I960).



29

like Father Groppi have so little stirred those opposed to 
them to anger as never to prejudice their right to a fair 
trial in a misdemeanor case; and it is no accident that 
cases involving civil rights leaders commonly involve pros­
ecution for technically minor offenses.37 Community prej­
udice arises when the activities of a person or group chal­
lenge deeply felt beliefs and feelings, and does not depend 
on whether a particular criminal charge arising out of 
those activities is classified as a misdemeanor or a felony.

The Supreme Court of Wisconsin also reasoned that 
limitation of the right to change of venue to felony cases 
promoted “ efficiency in the administration of justice” (A. 
210) in view of the large numbers of misdemeanor pros­
ecutions. Such arguments did not deter this court from 
extending the right to jury trial in Duncan v. Louisiana, 
391 U.S. 145 (1968); Bloom v. Illinois, 391 U.S. 194 (1968); 
or Baldwin v. New York, 38 U.S. L. Wk. 4554 (1970). 
Moreover these cases granted defendants a right, exer­
cisable at their option. Change of venue is a remedy 
dependent on the trial judge’s discretionary decision as 
to whether or not it is in fact necessary to ensure an 
impartial trial. Thus the notion that authorizing trial

37 Thus the civil rights movement has often stimulated local 
hostility by activities such as marching, sitting-in and demon­
strating, which have resulted in arrests for such olfenses as parad­
ing without a permit, distributing leaflets, breach of the peace, 
obstruction of public passages, picketing, trespass, disorderly con­
duct, and refusing to obey police orders. See, e.g., Shuttlesworth 
v. Birmingham, 373 U.S. 262 (1963) ; 376 U.S. 339 (1964) ; 382 
U.S. 87 (1965) ; 394 U.S. 147 (1969) ; Gregory v. Chicago, 394 
U.S. I l l  (1969); Edwards v. South Carolina, 372 U.S. 229 (1963) • 
Hague v. C.I.O., 307 U.S. 496 (1959) ; Cox v. Louisiana, 379 U.S. 
536 (1965); 379 U.S. 559 (1965) ; Bell v. Maryland, 378 U.S. 226 
(1964); Brown v. Louisiana, 383 U.S. 131 (1966); Wright v 
Georgia, 373 U.S. 284 (1963).



30

judges to grant a change of venue in misdemeanor cases 
will open the floodgates to disruption of the administration 
of justice is unreal. Indeed, studies have revealed that 
change of venue motions in both felony and misdemeanor 
cases are rarely made and almost never granted.38

Wisconsin’s practice of prohibiting entirely the right to 
change of venue in all misdemeanor cases is almost with­
out precedent. At common law the right to change of venue 
existed in all courts of general criminal jurisdiction, and 
no distinction was made between misdemeanors and felo­
nies.39 The right was considered an integral part of the

38 Standards Relating to Fair Trial and Free Press, 121, 188, 
248, 254. See also Bailey and Golding, Remedies for Prejudicial 
Publicity—Change of Venue and Continuance in Federal Crim­
inal Procedure, 18 Fed. B. J. 56, 64 (1958) (since promulgation 
of F. R. Crim. P. 21(a), in 1947, permitting change of venue 
in misdemeanors as well as felonies, only two reported cases in 
which change of venue had been granted). See generally Anno, 
Pretrial Publicity in Criminal Case as Affecting Defendant’s Right 
to Fair Trial—Federal Cases, 10 L. Ed. 2d 663 (1964).

39 See, e.g., Rex v. Harris, 3 Burr. 1330, 1333, 97 Eng. Rep. 858, 
859 (1762) (Lord Mansfield) (dictum), involving motion for 
change of venue in a misdemeanor case, quoted supra n. 10; 
Rex v. Cowle, 2 Burr. 834, 860, 97 Eng. Rep. 587, 602 (1759), 
supra n. 10, citing a number of cases involving misdemeanors. 
In Barry v. Truax, 13 N.D. 131, 99 N.W. 769, 774 (1904), the 
court stated:

In England the King’s Bench had general supervisory juris­
diction, in criminal cases, coextensive with the kingdom, and 
a change of the place of trial from the county of the offense 
in criminal cases was effected by aid of a writ of certiorari 
issued by that court. . . .  It will appear from an examination 
of these cases . . . that no distinction was made between mis­
demeanors and felonies, except that in case of a felony the 
showing by a defendant that a fair and impartial trial could 
not be had must be more conclusive than in case of a mere 
misdemeanor (emphasis added).

The court went on to say that the Queen’s Bench also had the 
same jurisdiction to change venue in a misdemeanor as in a felony



31

right to jury trial.40 And in this country today the right 
to change of venue is generally guaranteed in all felonies 
and misdemeanors or in all courts of general criminal juris­
diction.41 The American Bar Association’s Standards Re­
lating to Fair Trial and Free Press contemplate no dis­
tinction between felonies and misdemeanors, but provide

(99 N.W. at 775). See generally Crocker v. Justices of Superior 
Court, 208 Mass. 162, 94 N.E. 369 (1911), quoted supra, n. 11.

40 See Barry v. Truax, 13 N.D. 131, 99 N.W. 769, 772 (1904), 
quoted supra, n. 11.

41 See constitutional and statutory provisions, and court rules 
cited supra n. 12.

Some states provide for a different standard of proof in less 
serious cases. Thus Indiana and Maryland provide an absolute 
right to change of venue in capital cases, but in noncapital cases 
the defendant must show that he cannot obtain a fair trial without 
a change. Ind. Rules of Procedure, Tr 77, Cr 12 (1970); Mn 
Const. Art. IV, §8, Md. Ann. Code Art. 75, §44 (1957). And in 
Pennsylvania the Constitution provides for the right to change 
of venue in all “criminal cases” ; the statute provides for change of 
venue in felonies whenever the defendant shows the court a fair 
trial can’t be had, but in all other criminal cases the defendant is 
entitled to change of venue only after he has made an unsuccessful 
attempt to select an impartial jury and files an affidavit by some 
credible witness alleging he can’t get a fair trial. Pa. Const. Art. 
Ill, §23, Pa. Stat. Ann. Tit. 19, §551 (1930).

The New Hampshire constitutional provision providing for 
change of venue in “cases of general insurrection” has been inter­
preted as limiting the right to change of venue only by the state 
and not the defendant. N.H. Const. Pt. I, Art. 17; State v. Saw- 
telle, 66 N.H. 488, 32 A. 831 (1891). State v. Albee, 61 N.H. 423, 
60 Am. Rep. 325 (1881), specifically held that notwithstanding 
the constitutional language, courts of general jurisdiction had in­
herent common law power to change venue in criminal cases on 
the defendant’s motion. N.Y. Code Crim. P. §344 provides for 
change of venue in cases prosecuted by indictment, but People 
v. Ryan, 38 N.Y. Supp. 2d 806 (1942), held that a defendant 
charged by information had a right to change of venue if he 
couMshow danger of not obtaining a fair trial. M a s s  Ann. Laws 
ch. 277, §51 provides for a change of venue in capital crimes, but 
Crocker v. Justices of Superior Ct., 208 Mass. 162, 94 N.E. 369 
(1911), held that this statute was only declaratory of rights al­



32

for change of venue in all criminal cases whenever there 
is danger that a fair trial cannot be had (section 3.2, pp. 
8-10) .

The only cases appellant has found dealing with statutes 
similar to Wisconsin’s have found the denial of change of 
venue in misdemeanor cases unconstitutional. Mason v. 
Pamplin, 232 F. Supp. 539 (W.D. Tex. 1964), aff’d sub nom. 
Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966) (decided 
prior to this Court’s decisions in Duncan and Baldwin, 
supra), involved a strikingly similar factual situation. 
There a clergyman, active in civil rights causes, was ac­
cused of striking a police official in the course of being 
arrested in connection with a civil rights demonstration. 
He was charged with aggravated assault upon a police 
officer, a misdemeanor in Texas. His motion for a change 
of venue was denied because Texas statutes provided for 
change of venue by reason of community prejudice only

ready existing, and that it could not limit the inherent right of 
courts of general jurisdiction to grant changes of venue in all 
criminal cases.

Idaho may limit the right to change of venue to offenses prose­
cuted by indictment. Idaho Code Ann . §19-1801 (1948) ; but 
see §19-1304. Iowa Code A nn . §778.1 (1946) appears to limit 
change of venue to felony cases, but §762.13 provides for change 
of venue in the justice court in nonindictable offenses. Minn. 
Stat. A nn . §627.01 (1947) provides for change of venue in cases 
where the offense is punishable by death or imprisonment in the 
state prison; but in State v. Thompson, 273 Minn. 1, 139 N.W.2d 
490 (1966), cert, denied, 385 U.S. 817 (1966), the court said that 
this same statute’s provision that only one change of venue could 
be had could not limit a defendant’s right to a further change if 
it was necessary to protect the right to a fair trial.

A number of states have recently amended their statutes or 
rules to specifically provide for change of venue in misdemeanors 
and other non-felony offenses. See, e.g., Tex. Code Crim. P. Ann. 
Art. 31.01 (1966) ( “ any ease of felony or misdemeanor” ) ; S.D. 
Comp. Laws §23-28-7 (1967); Vt. Stat. A nn . Tit. 13, §4631 
(1969) (person under information, complaint or indictment for 
any offense can move for change of venue).



33

in felony eases. Subsequent to his trial, conviction, and 
exhaustion of state remedies, a federal court held that the 
change of venue statute violated the Due Process Clause 
of the Fourteenth Amendment, reasoning that Irvin made 
clear, if there was any doubt before, the “ inherent right 
of an individual to a change of venue” where community 
prejudice threatens a fair trial (232 F. Supp. at 541). The 
court found, therefore, that denial of opportunity to show 
prejudice on a motion for change of venue could not be 
remedied by voir dire proceedings or by post-verdict mo­
tions (232 F. Supp. at 542-43). In affirming, the Fifth Cir­
cuit declared that: “ [d]ue process of law requires a trial 
before a jury drawn from a community of people free from 
inherently suspect circumstances of racial prejudice against 
a particular defendant” ; and held that “ the same constitu­
tional safeguard of an impartial jury is available to a man 
denied his liberty . . .  for a misdemeanor as a felony.” 42

Similarly, long before this Court’s decisions in Irvin and 
Rideau, supra, the Supreme Court of Oregon recognized 
that the federal and state constitutional rights to an im­
partial trial included the right to a change of venue, and 
declared unconstitutional on due process grounds state 
statutes permitting a change of venue in felony cases only. 
State ex rel. Rico v. Biggs, 198 Ore. 413, 255 P.2d 1055 
(1953).

Appellant submits, in conclusion, that Wisconsin’s stat­
ute denying defendants in misdemeanor cases the right to 
a change of venue violates the Sixth and Fourteenth Amend­
ments to the United States Constitution.

42 364 P .2d at 7. The court found immaterial the fact that there 
was no evidence of community prejudice in the record and that 
the voir dire did not demonstrate community prejudice (364 F.2d 
at 6-7).



34

n.
Wis. Stat. Ann. § 9 5 6 .0 3 (3 )  Violates the Equal Pro­

tection Clause of the Fourteenth Amendment in Deny­
ing Persons Charged With a Misdemeanor the Right 
to a Change of Venue Granted Persons Charged With 
a Felony.

Apart from whether a criminal defendant is constitution­
ally entitled to a right to change of venue in order to pro­
tect his right to an impartial jury trial, it is at least clear 
that where a state grants a right to change of venue to 
some criminal defendants, it cannot deny that right to any 
arbitrarily selected class of defendants.43 Where a State 
chooses to grant an advantage to one class and not to 
others “ [T]he attempted classification . . . must always 
rest upon some difference which bears a reasonable and 
just relation to the act in respect to which the classification 
is proposed, and can never be made arbitrarily and without 
any such basis.” 44 While absolute equality is not required, 
it is at least clear that a State cannot discriminate irra­
tionally in providing criminal defendants with procedural 
protections its deems an important part of its system of 
criminal justice. See, e.g., Douglas v. California, 372 U.S. 
353, 356-57 (1962).

43 Thus in Griffin v. Illinois, 351 U.S. 12, 18 (1956), this Court 
held that where a State grants appellate review, even though it 
is not required to do so by the Federal Constitution, it can’t grant 
it in a manner that discriminates against an arbitrarily selected 
class, without violating the Equal Protection Clause of the Four­
teenth Amendment.

44 Gulf, Colorado and Santa Fe By. v. Ellis, 165 U.S. 150, 155, 
159 (1897); Skinner v. Oklahoma, 316 U.S. 536 (1942) ; Baxstrom 
v. Eerold, 383 U.S. 107 (1966).



35

The right to change of venue which Wisconsin grants all 
felony defendants is clearly considered a fundamental pro­
cedural safeguard, essential to protect the defendant’s right 
to an impartial jury trial. See p. 25 and n. 27, supra. It 
is appellant’s contention that it is a violation of Equal Pro­
tection to deny the same right to misdemeanor defendants 
since there is no adequate distinction between felonies and 
misdemeanors relevant to factors bearing on the need for 
a change of venue. As noted supra pp. 27-29, the factors 
contributing to community prejudice may have little or 
nothing to do with whether the crime charged is classified 
as a misdemeanor.

The court below quoted a previous decision outlining 
certain distinctions between felonies and misdemeanors in 
Wisconsin:

“ . . .  In most cases the place of imprisonment is dif­
ferent ; the statute of limitations is twice as long for a 
felony as a misdemeanor; one charged with a felony 
is entitled to a preliminary hearing; the stigma of a 
felony is greater; and under the repeater statute, more 
severe penalties are authorized for felonies than for 
misdemeanors . . . ”  State ex rel. Gaynon v. Krueger, 
31 Wis. 2d 609, 620, 143 N.W.2d 437 (1966). (A. 209)

But these distinctions appear to bear no relationship to the 
need for a change of venue in order to ensure an impartial 
trial. This Court rejected in Baldwin v. New York, 38 
U.S. L.Wk. 4554, 4555 (1970), the notion that such tradi­
tional distinctions between misdemeanors and felonies 
were of any particular relevance in determining what class 
of criminal defendants should be accorded the fundamental



36

right to jury trial. And in State ex rel. Plutshak v. State 
Department of Health and Social Services, 37 Wis. 2d 713, 
155 N.W.2d 549, 157 N.W.2d 567 (1968), the Wisconsin Su­
preme Court recognized that in determining the right to 
assigned counsel, the distinction between misdemeanor and 
felony was of no particular significance, and that instead 
counsel should be assigned in all cases where the potential 
maximum penalty exceeded six months.45 Most important, 
in the analogous situations involving change of venue in 
trials by the court, and determination of qualifications of 
and challenges to jurors, Wisconsin makes no distinction 
between felonies and misdemeanors. Wis. Stat. A nn. 
§956.03; §§270.16, 957.14, 957.03, 957.04.

Moreover, it is clear that while some distinctions are 
drawn between felonies and misdemeanors in Wisconsin, 
there is no apparent principle governing the classification 
of offenses. Wisconsin has defined a felony as “ [a] crime 
punishable by imprisonment in the state prison,” and a mis­
demeanor as “ every other crime.” Wis. Stat. A nn . §939.60 
(1955). But there are situations in which misdemeanants 
may be imprisoned in state prison, and felons incarcerated 
in the county jail.46 Wis. Stat. A n n . §959.044 (1945) pro­
vides that the place of imprisonment, where none is desig­
nated by statute, depends on the length of sentence: the 
county jail if the maximum is less than one year; the state 
prison if the maximum is more than one year; and either 
where the maximum is one year. But this of course does

45 See also Duncan v. Louisiana, 391 U.S. 145, 159-62 (1968); 
Beck v. Winters, 407 F.2d 125 (8th Cir. 1969) ; Harvey v. Mis­
sissippi, 340 F.2d 263, 269 (5th Cir. 1965); James v. Headley, 410 
F.2d 325, 328 (5th Cir. 1969).

46 See Note, Wisconsin Criminal Procedure, 1966 Wis. L. Rev. 
430, 488; Pruitt v. State, 16 Wis. 2d 169, 114 N.W.2d 148 (1962).



37

not mean that length of sentence necessarily determines 
whether a crime is a misdemeanor or felony since many 
Wisconsin statutes still designate the degree of the crime 
and/or the place of imprisonment. Also, under Wisconsin’s 
repeater laws, misdemeanors may bring increased penalties 
and incarceration in state prison without changing the de­
gree of the crime for purposes of the procedural protec­
tions provided.47 Finally, there is considerable confusion 
and difficulty in determining whether certain offenses are 
in fact misdemeanors or felonies.48 Thus there is plainly 
nothing categorical about the felony-misdemeanor distinc­
tion, nor anything inherent in its logic.

Since the distinction between felony and misdemeanor in 
Wisconsin is based on no coherent or consistent principle 
of classification, and since it is totally unrelated to the rea­
sons that change of venue should be granted a criminal 
defendant, the Wisconsin statute denying that right to per­
sons charged with a misdemeanor violates the Equal Pro­
tection Clause of the Fourteenth Amendment.

47 Wis. Stat. A nn . §939.62 (1957); State v. Watkins, 40 Wis. 
2d 398, 162 N.W.2d 48 (1968) ; Harms v. State, 36 Wis. 2d 282, 
153 N.W.2d 78 (1967).

48 See generally State ex rel. Gaynon v. Krueger, 31 Wis. 2d 609, 
143 N.W.2d 437 (1966) ; Lipton, The Classification of Crimes in 
Wisconsin, 50 Marq. L. Rev. 346 (1966).



38

CONCLUSION

For the foregoing reasons, this Court should reverse 
appellant’s conviction and remand for a new trial at which 
appellant would be entitled to change of venue on a show­
ing that community prejudice was such that he could not 
obtain an impartial jury trial in Milwaukee County.

Respectfully submitted,

Jack Greenberg
Elizabeth B. Dubois 

10 Columbus Circle 
New York, New York 10019

Michael Meltsner
Columbia Law School 
435 West 116th Street 
New York, New York 10027

A nthony G. A msterdam 
Stanford Law School 
Stanford, California 94305

H aywood B urns
112 West 120th Street 
New York, New York 10027

Thomas M. Jacobson
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

Robert E. Sutton
710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Attorneys for Appellant





RECORD PRESS. INC., 95 MORTON ST., NEW YORK, N. Y. 10014, (212) 243-577J



IN THE

SUPREME COURT OF THE UNITED STATES
October Term, 1970

No. 26

JAMES EDMUND GROPPI,
Appellant,

v.

STATE OF WISCONSIN,
Appellee.

ON APPEAL FROM
THE SUPREME COURT OF WISCONSIN

BRIEF FOR APPELLEE

ROBERT W. WARREN,
Attorney General of Wisconsin

SVERRE O. TINGLUM
Assistant Attorney General

ROY G. MITA
Assistant Attorney General

Attorneys for Appellee

Post Office Address:
State Capitol
Madison, Wisconsin 53702





1

INDEX

Page

QUESTIONS PRESENTED........................................................1

SUMMARY OF ARGUMENT................................................. 2-3

A R G U M E N T ..............................................................................4

I. DENIAL OF THE MOTION FOR A CHANGE OF 
VENUE WAS NOT A DENIAL OF DUE 
PROCESS....................................................................4-18

A. It Cannot be Said, on this Record, that Defend­
ant Was Even Probably Denied an Impartial 
Jury........................................................................ 4-11

B. The Change of Venue Device Was Not Essen­
tial to Due Process in this Misdemeanor Pros­
ecution ................................................................. 11-18

II. CONVICTION OF FELONY IN WISCONSIN 
CARRIES MORE SERIOUS CONSEQUENCES ' 
THAN CONVICTION FOR MISDEMEANOR;
THE STATE DOES NOT WITHHOLD EQUAL 
PROTECTION OF THE LAWS WHEN IT PRO­
VIDES ADDITIONAL SAFEGUARDS IN FEL­
ONY CASES............................................................ 19-21

TABLE OF AUTHORITIES

Cases:

Adams v. United States ex rel. McCann,
317 U.S. 269 (1942) .....................................................  11

Baldwin v. New York, 38 U.S.L.W.K.
4554, 26 L. ed. 2d 437 (1970).........................................  20,21

Buchalter v. New York, 319 U.S. 427
(1943) ............................................................................. 17



11

Carter v. Illinois, 329 U.S. 173 (1946).....................................18

Duncan v. Louisiana, 391 U.S. 145 (1968)..............................12

Estes v. Texas, 381 U.S. 532 (1965)............................................8

Graham v. West Virginia, 224 U.S. 616 (1912).......................21

Hannah v. Larche, 363 U.S. 420 (1960)................................... 17

Irvin v. Dowd, 366 U.S. 717 (1961)..............................................8

Mason v. Pamplin, 232 F. Supp. 539 
(W.D. Tex. 1964), aff’d. sub nom.
Pamplin v. Mason, 364 F. 2d 1
(5 Cir. 1966)..........................................................................  11

Pruitt v. State, 16 Wis. 2d 169, 114
N.W. 2d 148 (1962)................................................................20

Rideau v. Louisiana 373 U.S. 723 (1963)................................. 8,9

Sheppard v. Maxwell 384 U.S. 333 (1966)..............................  8,11

State ex rel. Gaynon v. Krueger, 31 Wis.
2d 609, 143 N.W. 2d 437 (1966)............................................20

State v. Woodington, 31 Wis. 2d 151,
142 N.W. 2d 810 (1966)........................................................6

United Public Workers v. Mitchell,
330 U.S. 75 (1947)................................................................. 10

United States v. Wood, 299 U.S. 123 (1936).........................17-18

Williams v. Florida, 38 U.S.L.W.K. 4557,
26L. ed. 2d 446 (1970)

Page

12,18



Ill

Constitutions and Statutes:

S.D. COMP. LAWS §23-28-7 (1967)..........................................  14

TEX. CODE. CR. PR. ANN. Art. 31.01 (1966)......................... 14

VT. STATS. ANN. Tit. 13, §4631 (1969)...................................  14

WIS. CONST. Art. I, § 7 ................................, ............................. 5

WIS. CONST. Art. Ill, § 2 ............................................................19

WIS. STATS. (1969) §971.22..................................................... 4,14

WIS. STATS. (1967):

§256.55(3)................................................................................... 7

§270.16....................................................................................... 6

§939.60..................................................................................4>19

§939.62 ......................................................................................19

§946.41(1)..............................................................................  4

§955.18...................................................................................5,19

§956.03(1)....................................................................................5

§956.03(3).....................................................................  1,2,18,20

§957.01 ....................................................................................... 5

§957.03 ................................................................................  6,20

§957.04 .................................................................................... 7

§957.07 ....................................................................................... 6

§959.044 .................................................................................. 19

Other Authorities:

Breeder, Voir Dire Examinations: An Empirical
Study, 38 SO. CAL. L. REV. 503 (1965)........................... 15

Page



IV

Cummings, The Third Great Adventure, 29
ABAJ 654 (1943).................................................................  14

Medalie, Federal Rules of Criminal Procedure,
4 LAWYERS GUILD R. (3) 1, 5 (1944)............................  14

Note, Community Hostility and the Right to an
Impartial Jury, 60 COLUM. L. REV. 349 (1960).........12,15

Note, The Efficacy of a Change of Venue 
in Protecting a Defendant’s Right to an 
Impartial Jury, 42 NOTRE DAME LAWYER 
925 (1967) ................................................................  7,13,15,16

Note, Impartial Jury - Twentieth Century Dilemma:
Some Solutions to the Conflict Between Free 
Press and Fair Trial, 51 CORNELL L.Q.
306 (1966) ................................................................  7,11,12,15

Note, 33 FORD. L. REV. 498 (1965) ........................... 11^3

Page
Cipes, MOORE’S FEDERAL PRACTICE, 2d ed.,

(1 9 6 9 ) ...;.......................................................................................14



IN THE

SUPREME COURT OF THE UNITED STATES
October Term, 1970 

No. 26

JAMES EDMUND GROPPI,
Appellant,

v .

STATE OF WISCONSIN,
Appellee.

ON APPEAL FROM
THE SUPREME COURT OF WISCONSIN

BRIEF FOR APPELLEE

QUESTIONS PRESENTED

1. Does the record herein present a factual context suffici­
ently concrete to enable this Court to determine whether 
§956.03(3) WIS. STATS. (1967) actually operated to impair 
this defendant’s right to trial by an impartial jury?

2. Could Wisconsin in 1968 limit the availability of the change 
of venue device to felony cases without violating the right 
of misdemeanor defendants to trial by an impartial jury?



2

SUMMARY OF ARGUMENT

I.A. Defendant, who claims denial of his rights under the 
Sixth and Fourteenth Amendments, has failed to bring to this 
Court a record which will adequately show that application of 
§956.03(3) of the Wisconsin Statutes, which limits changes 
of venue for community prejudice to felony cases, impaired 
his right to an impartial jury.

Defendant’s affidavit, claiming adverse pretrial publicity, 
is of no evidentiary value; there is no other evidence of com­
munity prejudice in this record. No continuance was requested 
on grounds of prejudice, and defense counsel made no effort 
to include proceedings on voir dire in the record. A jury 
was impaneled on the first morning of trial.

Since the record fails to show prejudice, it cannot be pre­
sumed that there was a probability of jury prejudice, and a 
determination of the constitutionality of the statute would be 
an advisory opinion, which this Court will not give.

B. A state may deny a change of venue for community prej­
udice in cases of less serious crimes without impairing de­
fendant’s rights to an impartial jury where, as in Wisconsin, 
the devices of voir dire and continuance are available and 
post-trial motions may be employed to remedy actual or 
probable prejudice.

Limitation of the change of venue device to felony cases 
has not been uncommon in this country. The questionable 
efficacy of the device, and the expense, delay and possible 
abuse involved in its exercise warrant its denial in misdemeanor 
cases, when other remedial devices are available.

II. Regardless of the intricacies of the formula used to 
distinguish felonies from misdemeanors in Wisconsin, those 
convicted of crimes determined to be felonies are subjected



3

to more rigorous penalties than those convicted of misdemean­
or. The difference in consequences justifies granting addi­
tional procedural safeguards to persons accused of felony.



4

ARGUMENT

I. DENIAL OF THE MOTION FOR A CHANGE 
OF VENUE WAS NOT A DENIAL OF DUE PRO­
CESS.

A. It Cannot Be Said, On This Record, That De­
fendant Was Even Probably Denied An Im­
partial Jury.

Defendant was convicted for misdemeanor in Milwaukee 
County Circuit Court on February 9, 1968, following a trial 
to a jury of twelve which commenced the previous day.1

This conviction arose out of his arrest on August 31, 1967, 
on a charge of “ Resisting an Officer,”* 2 a misdemeanor pun­
ishable by a fine of not more than $500 or imprisonment in 
the county jail for not more than one year, or both.3

At the time of trial,4 a Wisconsin statute authorized 
changes of venue for community prejudice in felony cases.

/'T h e  jury was impaneled and sworn before the noon recess on Feb. 8, 
1968. The state opened its case at 2 p.m. on February 8, and rested the 
same day. On February 9, the defense presented its case, the state 
offered rebuttal testimony, and the case was argued and submitted to the 
jury at 1:15 p.m. The jury returned to court with its verdict at 4:55 p.m. 
on February 9, 1968. (A. 13, 14, 15)

/ 2§946.41 (1) WIS. STATS. (1967):
“ Whoever knowingly resists or obstructs an officer while such officer 
is doing any act in his official capacity and with lawful authority, may 
be fined not more than $500 or imprisoned not more than one year in 
county jail or both.”

/ ' '“ Resisting an Officer” is a misdemeanor, since the county jail is ex­
pressly designated as the place o f imprisonment upon conviction. §939.60, 
WIS. STATS. (1967) provides:

“A crime punishable by imprisonment in the state prison is a felony. 
Every other crime is a misdemeanor.”

/■'§971.22, WIS. STATS., effective July 1, 1970, permits a change of venue 
in all criminal cases. See Chap. 255, Laws o f 1969.



5

As construed by the state courts,5 the statute limited changes 
of venue for that cause to felony cases, resulting in the denial 
of defendant’s motion for a change of venue in his misdemeanor 
case.

In order to achieve a reasonably accurate perspective in 
evaluating this case by Sixth and Fourteenth Amendment stan­
dards, some pertinent aspects of Wisconsin criminal proce­
dure should be noted:

—Wisconsin guaranteed trial by a jury of twelve to all per­
sons accused of crime, whether felony or misdemeanor.8

—Wisconsin granted to all defendants an absolute right 
to a change of judge upon the defendant’s affidavit that the 
judge originally designated was prejudiced.7

—Wisconsin required a preliminary examination for per­
sons accused of felony, and a finding of probable cause as 
a prerequisite to the filing of an information.8

/ 5Rulings o f the state courts are reproduced in the Appendix, 8-9, 207.

/ 6WIS. CONST. Art I, §7; §957.01 WIS. STATS. (1967)

/ 7§956.03 (1) WIS. STATS. (1967). Contrary to the claims in appellant’s 
brief (see pp. 25, 27, 36), this statute provides for a change o f judge only on 
grounds of personal interest or “ the prejudice o f the judge.”  The change of 
judge is permitted in jury trials as well as trials to the court. Community 
prejudice is not grounds for a change o f judge under this section, which 
provides:

“PREJUDICE OF JUDGE; ANOTHER JUDGE CALLED. If the pre­
siding judge has acted as attorney for a defendant or for the state in 
the pending action, or if a defendant moves, in the manner provided in 
civil actions, for a change of venue on account o f the prejudice of the 
judge, another judge shall be called in the manner provided in civil 
actions to try the action, except that in county courts containing 3 or 
more branches the case shall be referred to the clerk who shall in 
accordance with the rules of said court assign the case to another 
branch of that court for trial or other proceedings.***”

/ 8§955.18 WIS. STATS. (1967).



6

—Four peremptory challenges were allowed defendants in 
all criminal trials; twelve peremptory challenges were 
allowed in cases exposing the defendant to a sentence of 
life imprisonment.10 *

—Persons accused of misdemeanor were permitted to waive 
their right to be present at trial; those accused of felony 
were not.11

—Community prejudice was recognized as sufficient cause 
for the granting of continuances.12

In this procedural setting, defendant was obliged to pro­
ceed to trial in Milwaukee County following the denial of his 
motion for a change of venue. Facing trial by a jury selected 
from this allegedly hostile community, he had at his disposal 
a number of procedural alternatives to the change of venue 
which had been denied. The record does not reveal whether 
these alternatives were utilized:

1. Although the minutes and docket entries in the lower 
state courts show that defendant’s trial date was continued 
six times,13 there is nothing in the record to suggest that 
defense counsel at any time sought a continuance on the ground

—By statute, unfettered participation in voir dire exami­
nation of prospective jurors was guaranteed to all parties.9

/ 9§270.16 WIS. STATS. (1967).

/'°§957.03 WIS. STATS. (1967). 

/ u§957.07 WIS. STATS. (1967).

/'-State u. Woodington (1966), 31 Wis. 2d 151, 166, 142 N.W. 2d 810, 817.

/ l:,Docket entries A. 1, 10, 11, 12.



7

of prejudicial pretrial publicity or community hostility. While 
the effectiveness of a continuance may be open to considerable 
doubt,14 it is nevertheless significant that defense counsel 
made no attempt to employ a device traditionally considered 
as an alternative to a change of venue. If there was present 
in defendant’s case any circumstance rendering continuance 
totally ineffective to reduce the hazard of an inflamed and 
prejudiced jury, it is not to be found in this record.

2. The record is entirely devoid of the type of evidence 
commonly relied upon to show the temper of a community 
allegedly permeated with prejudice against a defendant: the 
proceedings on voir dire,15 The record reveals only that 
a jury of twelve plus one alternate was impaneled and sworn
prior to the noon recess on the first day of trial, and that 
both the prosecution and the defense exercised all of their 
peremptory challenges.16 The proceedings on voir dire are not 
reported in the record, and the record reveals no motion or 
request by counsel that they be reported.17

/ “ Note. Impartial Jury - Twentieth Century Dilemma: Some Solutions to 
the Conflict Between Free Press and Fair Trial, 51 CORNELL L. Q. 306, 
314-315 (1966).

/ “ ’Note. The Efficacy o f a Change o f Venue in Protecting a Defendant’s 
Right to an Impartial Jury, 42 NOTRE DAME LAWYER 925, 936 (1967):

“To the contrary, it may be argued that the courts’ view of removal 
is the valid one since the voir dire examination affords an excellent 
opportunity to sound out community sentiment.”

/ 16In Wisconsin, peremptory challenges are exercised following voir dire 
examination, the parties alternately striking names from a list of jurors 
not excused for cause until only twelve remain. §957.04, WIS. STATS. 
(1967). The lists herein are at A. 30, 44.

/uVoir dire examinations “ need not be reported unless ordered by the 
court.” §256.55 (3), WIS. STATS. (1967).



8

As a consequence, this court has no way of determining 
whether any prospective juror was challenged or excused for 
cause; — or whether any juror had formed any opinions of the 
defendant or of his guilt or innocence; — or whether any juror 
had been exposed to allegedly prejudicial sources of informa­
tion. Thus it is impossible to know, from this record, whether 
the voir dire provided any evidence whatever of conditions 
rendering suspect the impartiality of the jurors who sat in 
judgment; indeed, there is nothing in the record to show that 
defense counsel even attempted to examine prospective jur­
ors on voir dire. All that can be said, on this record, is 
that there was apparently no serious difficulty encountered 
in impaneling a jury.18

The compelling evidence of prejudice found by this Court 
in Irvin v. Dowd,19 Rideau v. Louisiana,20 Estes v. Tex­
as,21 and Sheppard v. Maxwell22 is, therefore, absent 
from this record. It is not helpful, moreover, to take as true 
the averments of the motion for change of venue and its sup­
porting affidavit,23 since they contain only subjective evalua­
tions of the publicity given to the defendant and his activities. 
The affidavit filed in support of the motion for a change of 
venue provides little, if any, factual support for a conclusion

/ lsSee note 1.

/ 19366 U. S. 717 (1961).

/ 2ll373 U. S. 723 (1963).

/ 21381 U. S. 532 (1965).

/ 22384 U. S. 333 (1966).

/ 2!A. 23a-25a.



9

that the jury panel was even probably prejudiced. It alleges 
only that defendant was a well-known civil rights leader, that 
his activities had received “massive and frequently adverse” 
publicity, and that “ some” of the news media had published 
“editorial criticisms” of his activities. There is no allega­
tion whatever of distortion of fact or other prejudicial report­
ing of — or commentary on — the event out of which the misde­
meanor charge arose.

If evidence of community prejudice existed, defense coun­
sel could have supplied it for this record. There was nothing 
to prevent the incorporation of allegedly prejudicial media 
reports in the affidavit. There was likewise nothing to pre­
vent defendant from introducing such evidence in support of 
a motion for continuance or, following the verdict, in support 
of a motion for new trial on grounds of “ inherent” or “ prob­
able” prejudice.24 Furthermore, there was nothing which 
prevented counsel from requesting that the proceedings on 
voir dire be reported for the record.

Defendant does not and cannot claim that this record shows 
that the twelve jurors who found him guilty were demonstrably 
prejudiced. He cannot even claim, on this record, that the 
jurors — or the panel from which they were selected — had pre­
viously been exposed to inflammatory or inaccurate of other­
wise prejudicial publicity.

The unsatisfactory state of the record with respect to 
community hostility makes it impossible for any reviewing 
court to say, as this Court said in Rideau v. Louisiana,25

/ 21“Appellant contends that because his motion for a change of venue was 
denied, he had no opportunity to make a record o f the community prejudice. 
This is simply not true. ***” (Opinion below, A. 213).

/ 25373 U. S. 723 (1963).



10

that “Any subsequent court proceedings in a community so 
pervasively exposed to such a spectacle could be but a hollow 
formality.”26 .

Nevertheless, this Court is asked to declare that defend­
ant’s conviction cannot stand: not because defendant had a 
Constitutional right to a change of venue in this case, but be­
cause his application for that change was denied without hear­
ing, by the application of a statute which limited the availabil­
ity of this device to those charged with felony.

The Court is therefore called upon by defendant to decide 
—in the abstract — whether persons charged with misdemeanor 
could, under a hypothetical set of facts evidencing a high 
degree of community prejudice, be Constitutionally entitled 
to a change of venue — even though alternative procedural de­
vices designed to dilute or screen out prejudice are available. 
What is sought is an advisory opinion. This Court will not 
render advisory opinions;27 this should be particularly true 
where, as here, “ it is not asking too much that the burden of 
showing essential unfairness be sustained by him who claims

/ 2<iId. at 726.

/ 27 United Public Workers v. Mitchell, 330 U. S. 75,89 (1947):

“ ***For adjudication o f constitutional issues ‘concrete legal issues, 
presented in actual cases, not abstractions,’ are requisite.”



11

such injustice and seeks to have the result set aside, and that 
it be sustained not as a matter of speculation but as a demon­
strable reality.”28

B. The Change of Venue Device Was Not Essential 
to Due Process in this Misdemeanor Prosecution.

No defendant is guaranteed an impartial jury in the philo­
sophical sense.29 Neither Wisconsin’s Constitution nor the 
Constitution of the United States require the impossible; nor 
do they require that government do everything humanly pos­
sible to attain the closest possible approximation of the philo­
sophical ideal. We tolerate acknowledged weaknesses and im­
perfections in the jury system when those imperfections do 
not outweigh the social cost of correcting them, or when a 
suspected imperfection seems slight in comparison with the 
real detriment suffered through use of a remedial device of 
doubtful efficacy.

The jury is itself a safeguard. Its impartiality is in turn 
safeguarded by procedures employed in its selection: the
selection of the array is prescribed intricately, and is open 
to inspection and challenge; the selection of a panel from the 
array is accomplished by lottery, and the members of the

/28Adams v. United States ex rel. McCann, 317 U. S. 269, 281 (1942). 
Under circumstances not present in this record, the party claiming 
injustice is relieved of this burden. Sheppard v. Maxwell, 384 U. S. 333, 
351-352 (1966).

Note, 33 FORD L. REV. 498 (1965), wherein the author points out 
that the habeas petitioner in Mason u. Pamplin, 232 F. Supp. 539 (W.D. 
Texas 1964) (aff’d. sub.nom. Pamplin v. Mason, 364 F. 2d 1 (5 Cir. 1966), 
having defaulted in placing evidence of prejudice on the record, failed to 
show that he had been sufficiently aggrieved by a Texas statute similar to 
Wisconsin’s §956.03(3) to test its constitutionality. The author concludes 
(at 506-507) that the question of the constitutionality o f the Texas statute 
was not properly before the court, and should not have been decided.

/ 29Note, supra n. 14, 51 CORNELL L. Q. 306 at 307 (1966).



12

panel so chosen may be questioned in detail about individual 
circumstances that may affect their ability to perform their 
prescribed function. It is not enough that the prospective 
jurors disclaim prejudice under oath on voir dire; all are 
required to swear that they will perform their duty without 
partiality. Commonly, the protections erected against pos­
sible imperfections in juries are increased in proportion to 
the degree of punishment sought to be imposed upon the de­
fendant: the number of allowable peremptory challenges may 
be increased;30 the jury may be sequestered;31 and a change 
of venue or of venire may be provided for in addition to con­
tinuance and voir dire examination.

While the criminal court jury as an institution is highly 
regarded as an important deterrent to oppression by govern­
ment, it may be dispensed with entirely in some cases, for 
reasons of “ efficient law enforcement and simplified judicial 
administration resulting from the availability of speedy and 
inexpensive noninjury adjudications.”32 And while no state 
may deny a jury where government seeks to imprison a de­
fendant for longer than six months, a jury composed of fewer 
than twelve jurors will satisfy federal Constitutional stan­
dards.33

Defendant now seeks a declaration by this Court that a 
change of venue, as a method of avoiding community prejudice, 
is a requirement of the Sixth Amendment as made applicable 
to the states by the Fourteenth Amendment, and that it is as

/ :"’Note, Community Hostility and the Right to an Impartial Jury, 60 C0- 
LUM. L. REV. 349, 359, footnote 56 (1960).

/•"Note, supra n. 14, 51 CORNELL LAW Q. 306, 316 (1966).

/'■"Duncan u. Louisiana, 391 U.S. 145, 160 (1968).

/■"Williams u. Florida, 38 U.S.L.WK. 4557, 26 L. ed. 2d 446 (1970).



13

fundamental a right as trial by jury, speedy trial, confronta­
tion of prosecution witnesses and assistance of counsel. Fur­
ther, he seeks an interpretation of those Amendments which 
would declare unconstitutional the past judgment of the state 
of Wisconsin that the availability of voir dire examinations, 
continuances, peremptory challenges and post-trial motions 
sufficiently protected persons accused of misdemeanors from 
occasions of community prejudice.

Defendant’s brief maintains in support of its argument 
that change of venue is “ fundamental to the American scheme 
of justice” that Wisconsin’s statutory limitation of change of 
venue to felony cases is “ almost without precedent.”34 The 
word “almost” covers a lot of territory.

The brief of appellant concedes, first of all, that states 
have felt themselves free to establish statutory standards 
for — and limitations upon — the change of venue device. Note 
41 at pp. 31-32 of the brief demonstrates not only substantial 
variations in state change of venue practice, but also that 
a number of states, like Wisconsin, have in the past limited 
the change of venue device to felony cases.35 In recent 
years, the trend among the states has been to extend the 
availability of the device to non-felony cases:36 Since 1966

/ 34Appellant’s brief, p. 30.

/ 3,Note, 33 FORD L. REV. 498, 507 (1965); footnote 51 lists eight states 
which by statute limited change o f venue to more serious crimes.
Note, The Efficacy o f a Change o f Venue in Protecting a Defendant’s Right 
to an Impartial Jury, 42 NOTRE DAME LAWYER 925, 927-929 (1967).

/ 36Id. at 928.



14

Wisconsin, Vermont, South Dakota and Texas have altered 
their criminal procedures to permit a change of venue in 
non-felony prosecutions.37 This trend hardly demonstrates, 
however, that Wisconsin’s former practice in 1968 was “al­
most without precedent.”

Further illustration of the fact that limitations on the 
availability of the change of venue device are not without pre­
cedent may be found in federal practice where, until the ad­
vent of Federal Rule of Criminal Procedure 21 in March, 
1946, the device was simply not available to any defendant.38

While change of venue for local prejudice in misdemeanor 
cases has been a traditional procedural avenue in many juris­
dictions, a significant number of jurisdictions have felt that 
the right to fair trial by an impartial jury could be protected 
without it. Given other procedural safeguards, the availabil­
ity of change of venue was not considered the point of demar­
cation between fair trial and unfair trial.

The procedural devices employed for the purpose of avoid­
ing possible jury prejudice include change of venue, change

/ :,7§971.22, WIS. STATS, (eff. 7 /1 /70  - Ch. 255, Laws o f 1969); VT. 
STATS. ANN. Tit. 13, §4631 (1969); S.D. COMP. LAWS. §23-28-7 (1967); 
TEX. CODE. CR. PR. ANN. Art. 31.01 (1966).

/ :l8Medalie, Federal Rules o f Criminal Procedure, 4 LAWYERS GUILD 
R. (3) 1, 5 (1944):

“ It has long been recognized by many states that a defendant may have 
his cause removed to another county upon proof o f prejudice existing 
in the locality in which he would otherwise be tried. Curiously, no 
such right has been recognized by the federal courts.”

Cummings, “ The Third Great Adventure,”  29 ABAJ 654, 655-656 (1943): 
“ Lawyers not thoroughly familiar with federal practice are somewhat 
astounded to learn that they may not move for a change o f venue, even 
if they are able to demonstrate that public feeling in the vicinity of the 
crime may render impossible a fair and impartial trial. This seems 
to be a defect in the federal law, which the proposed rules would cure.” 

See also: Cipes, MOORE’S FEDERAL PRACTICE, 2d (1969), §§. 21.01(1), 
21.02, 21.03.



15

of venire, continuance and voir dire. The oath-giving is 
likewise apparently considered an effective safeguard, as are 
the Court s instructions to disregard out-of-court sources of 
information and conscious bias or prejudice.39 In a sense 
all of these devices are “palliatives,”  since they are designed 
to avoid or dilute pre-existing prejudice; prior control of 
media treatment of the cause, through whatever means are 
available, effective and necessary, may prevent the forma­
tion of some forms of prejudice.40 Once trial has begun, 
cautionary instructions, sequestration of the jury, control of 
court officers and the media, and protection of witnesses are 
devices available to guard against undesirable intrusions into 
the fact-finding process.

The relative effectiveness of each device heretofore thought 
to enhance the jury’s impartiality, and the relative advantages 
and disadvantages which each carries with it,41 are not sub­
ject to objective appraisal. Certainly it is true that the effi­
cacy of voir dire may be questioned;42 but the same may be 
said of a change of venue from one county to another — at least 
in the latter half of the twentieth century. Continuances are 
at once a service and a disservice to both sides in many cases.

/ 39Note, supra n. 35, 42 NOTRE DAME LAWYER 925, 926-927 (1967); 
Note, The Impartial Jury, 51 CORNELL L. Q. 306, 313-317 (1966); Note’ 
Community Hostility and the Right to an Impartial Jury, 60 COLUM L 
REV. 349, 356-370 (1960).

/"“Id. at 370-375.

/ 41Id. at 356-375.

/ “ Breeder, Voir Dire Examinations: An Empirical Study, 38 SO. CAL.
L. REV. 503 (1965). Broeder’s study of voir dire examinations which were 
“perfunctory, stilted affairs” is not, however, a valid evaluation o f the 
effectiveness o f such examinations when properly conducted.



16

The effectiveness of many devices heretofore believed to 
enhance jury impartiality is open to honest and serious de­
bate. What is considered a fundamental right in one state 
may be regarded as totally unnecessary to fair trial in an­
other; what is regarded as administratively cumbersome or 
too costly in one time may be thought acceptable and desirable 
in another.

The present state of our knowledge about the efficacy and 
necessity of any one of the devices thought to be effective to 
combat jury prejudice is limited, as is our ability to effect­
ively appraise the social cost of the availability and extensive 
use of each such device. It may well be, for example, that 
attitude inventories employed by psychologists would be a far 
more effective tool for screening out prejudice than any of 
the methods heretofore employed — change of venue not ex­
cepted.

There is room within the jury trial framework for con­
siderable latitude and variations in the methods adopted by 
the states to enhance impartiality while at the same time pro­
tecting the state’s right to impose sanctions on offenders in 
a reasonably efficient manner. There was room, within that 
framework, for Wisconsin to determine that the expense, de­
lay, possibilities of abuse and questionable efficacy of change 
of venue43 were acceptable social costs in felony cases, where

/4:<Note, supra n. 35, 42 NOTRE DAME LAWYER 925 (1967) at p. 942:

“ Removal is capable o f working an extreme dislocation in the admin­
istration o f criminal justice. It is expensive and generally inconvenient, 
and it has excellent potential as a dilatory tactic. Further, it amounts 
to an admission that justice cannot be done in the forum in which the 
motion is made, which is a severe blow to people who pride themselves 
in their ability to be fair to their fellows. Finally, removal runs counter 
to the tradition that the administration o f criminal law is primarily 
the concern o f the community in which the crime is committed.



17

the stakes were high, but not acceptable in misdemeanor cases, 
where the stakes were lower both in terms of length of sen­
tence and collateral consequences of conviction. In Wiscon­
sin, at the time of defendant’s trial, denial of change of venue 
in misdemeanor cases cannot be said to have denied defendant 
a “ fair trial in a fair tribunal.”

This Court has said that

“ ‘[D]ue process’ is an elusive concept. Its exact boun­
daries are undefinable, and its content varies according 
to specific factual contexts. * * * Whether the Constitu­
tion requires that a particular right obtain in specific pro­
ceedings depends upon a complexity of factors. The na­
ture of the alleged right involved, the nature of the pro­
ceeding, and the possible burden on that proceeding are 
all considerations which must be taken into account.”44

Within the boundaries marked by “ specific factual con­
texts,” states have been declared “ free to enforce their crim­
inal laws under statutory provisions and common law doctrines 
as they deem appropriate * * *.”45

Among the procedural details said to be left to the judgment 
of the several states are those surrounding the rules for the 
selection of juries. In United States v. Wood, 299 U.S. 123, 
145-146, (1936), this Court said:

“In Stilson v. United States, 250 U.S. 583, 586, 40 S. Ct. 
28, 29, 30, 63 L.Ed. 1154, we said on this point: ‘There 
is nothing in the Constitution of the United States which 
requires the Congress to grant peremptory challenges to 
defendants in criminal cases; trial by an impartial jury

/"Hannah v. Larche, 363 U.S. 420, 442 (1960)

/4SBuchalter v. New York, 319 U.S. 427, 430 (1943)



18

is all that is secured. The number of challenges is left 
to be regulated by the common law or the enactments of 
Congress,’ And the same was held to be true of the au­
thority of Congress to treat several defendants, for this 
purpose, as one party. It is not necessary to multiply 
illustrations of the familiar principle which while safe­
guarding the essence of the constitutional requirements 
permits readjustments of procedure consistent with their 
spirit and purpose.

Impartiality is not a technical conception. It is a state 
of mind. For the ascertainment of this mental attitude of 
appropriate indifference, the Constitution lays down no 
particular tests and procedure is not chained to any ancient 
and artificial formula. State courts enforcing similar re­
quirements of state constitutions as to trial by jury have 
held that legislatures enjoy a reasonable freedom in es­
tablishing qualifications for jury service although these 
involve a departure from common law rules.”
Justice Frankfurter wrote in 1946 that the Due Process 

Clause had not created a “ uniform code of criminal proce­
dure” for the states.46 This Court has affirmed, in Williams 
v. Florida,47 that the states remain free to establish crim­
inal procedures that do not render utterly sterile the funda­
mental substantive rights guaranteed by the national Consti­
tution.

Section 956.03(3) of the Wisconsin Statutes did not deny 
Father Groppi an impartial jury. If his jury was prejudiced 
against him, the prejudice does not appear in this record as 
a reality, or even a probability.

/4tiCarter v. Illinois, 329 U.S. 173, 175 (1946)

/ ' 738 U.S.L.WK. 4557, 26 L. ed. 2d 446 (1970)



19

II. CONVICTION OF FELONY IN WISCONSIN 
CARRIES MORE SERIOUS CONSEQUENCES 
THAN CONVICTION FOR MISDEMEANOR; 
THE STATE DOES NOT WITHHOLD EQUAL 
PROTECTION OF THE LAWS WHEN IT PRO­
VIDES ADDITIONAL SAFEGUARDS IN FEL­
ONY CASES.

A person convicted of a felony in Wisconsin faces the 
possibility of imprisonment for more than one year.48 This 
class of crime is without exception punishable by imprison­
ment in the state prison.49 The convicted defendant is dis­
franchised,50 and the conviction carries a considerable so­
cial stigma. More severe enhancement of punishment under 
the repeater statute is authorized for felons than for mis­
demeanants.51

In contrast, a misdemeanor conviction in Wisconsin ex­
poses the defendant to a maximum of a year’s incarceration; 
collateral consequences such as disfranchisement and stigma 
do not follow or are less severe, and invocation of the re­
peater principle at a subsequent time carries less risk than 
that to which a “ felony repeater” is exposed.

Accompanying the risk of more serious consequences of 
conviction of felony are the additional procedural safeguards 
afforded a felony defendant in Wisconsin: the preliminary
(probable cause) hearing52 and availability of the change of

/ 48§§ 939.60, 959.044, WIS. STATS. (1967)

/ 49Id.

/ 50WIS. CONST. Art. Ill, §2 

/ 51§939.62 WIS. STATS. (1967)

/ 52§955.18 WIS. STATS. (1967)



20

venue device.53 When the felony involved is punishable by 
life imprisonment, a further safeguard is provided: the num­
ber of allowable peremptory challenges is increased to 
twelve.54

While resort to several statutes and some Wisconsin case 
law55 is sometimes necessary to fully understand the classifi­
cation of misdemeanors and felonies in Wisconsin, only one 
relevant principle need be extracted for the purpose of judging 
differentiation in procedural treatment between the two classes 
of crime: that which is ultimately determined to be a felony 
carries significantly greater risks for the accused as far as 
punishment and collateral consequences are concerned. Once 
a crime is classified as either misdemeanor or felony under 
Wisconsin rules, the difference in consequences upon convic­
tion fully justifies differences in procedural treatment.

Former sec. 956.03 (3), affording a change of venue to 
felony defendants only, was not a legislative declaration that 
community prejudice could not exist against one accused of 
misdemeanor. It was, rather, a recognition of the need for 
additional protection against such prejudice in cases in­
volving the possibility of more severe penalty. In addition, 
then, to the remedial devices of continuance and voir dire 
examination, which were available in misdemeanor cases, 
Wisconsin added the change of venue device at the point that 
the hazard of severe penalty was significantly increased.

Baldwin v. New York56 did not outlaw the classification 
of crimes as misdemeanors and felonies, nor did it proscribe

/ 3:'§956.03 (3) WIS. STATS. (1967) 

/ ’’ '§957.03 WIS. STATS. (1967)

■''State ex rel. Gaynon u. Krueger, 31 Wis. 2d 609, 143 N.W. 2d 437 (1966); 
Pruitt v. State, 16 Wis. 2d 169, 114 N.W. 2d 148 (1962)

";38 U.S.L.WK. 4554, 26 L. ed. 2d 437 (1970)



21

differences in procedures to be observed in the prosecution 
of these classifications. Baldwin held only that the Sixth 
Amendment right to jury trial, as applied to the states, at­
tached when “ the possible penalty exceeds six months’ im­
prisonment,” — an implicit recognition of the Constitutional 
validity of differentiation in procedure between prosecutions 
for “ serious” and “ less serious” offenses.

The Wisconsin Supreme Court, recognizing that it had pre­
viously ruled that assigned counsel must be provided for in­
digent defendants threatened with imprisonment exceeding 
six months, nevertheless recognized that the legislature might 
validly provide, as it had, for a different “ cutoff point” at 
which the right to change of venue would attach. While the 
Wisconsin court expressed a preference for the “ six-month 
cutoff,” it correctly recognized that the felony-misdemeanor 
“cutoff’ was within permissible limits of legislative discre­
tion.57

Change of venue is not the “fundamental right” that this 
court dealt with in Baldwin v. N ew  York. It is thought to 
be, under some circumstances, an aid to the achievement of 
the imperfect practical model of the “impartial jury” guaran­
teed by state and federal constitutions. Limiting its avail­
ability to those charged with felonies is not a denial of equal 
protection of the laws. The Fourteenth Amendment is not to 
be construed “as introducing a factitious equality without re­
gard to practical differences that are best met by correspond­
ing differences of treatment.”58

/ S7A.211.

/l8Graham v. West Virginia, 224 U.S. 616, 630 (1912)



22

CONCLUSION

For the reasons stated it is respectfully submitted that 
the judgment of the court below should be affirmed.

October 9, 1970.
ROBERT W. WARREN 
A ttorn ey General o f  W isconsin

SVERRE O. TINGLUM 
A ssista n t A ttorn ey General

ROY G. MITA 
A ssista n t A ttorn ey General

A ttorn eys for Appellee











W-tV"*

I n t h e

irtprinuT ©mart ai %  Intt^ States
October T erm, 1970 

No. 26

James E dmund Groppi,
Appellant,

v.

S tate of W isconsin,
___________  Appellee.

ON APPEAL FROM THE SUPREME COURT OF WISCONSIN

REPLY BRIEF

Jack Greenberg
E lizabeth B . D ubois 

10 Columbus Circle 
New York, New York 10019

M ichael M eltsner

Columbia Law School 
435 West 116th Street 
New York, New York 10027

A nthony  G. A msterdam 
Stanford Law School 
Stanford, California 94305

H aywood B urns

112 West 120th Street 
New York, New York 10027

T homas M. Jacobson

110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

R obert E. S utton

710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Attorneys for Appellant





TABLE OF CONTENTS

A rgument

I. Defendant Has Standing to Challenge the Wis­
consin Statute Denying a Change of Venue in 
Misdemeanor Cases ............................................ 2

II. Change of Venue Has Traditionally Been Rec­
ognized as a Means of Guaranteeing the Defen­
dant’s Right to an Impartial Jury Trial and 
May, Under Certain Circumstances, Be Re­
quired by Due Process of L a w ............................... 4

III. The Distinctions Between the Treatment Ac­
corded Felony and Misdemeanor Defendants in 
Wisconsin Are Not Adequate to Justify, Under 
the Equal Protection Clause, Prohibiting a Change 
of Venue for Those Charged With a Misdemeanor 7

T able op A uthorities

Cases:

Allen y. United States, 4 F.2d 688 (7th Cir. 1924), cert, 
denied sub nom., Hunter v. United States, 267 U.S.
597, Mullen v. United States, 267 U.S. 598 and John­
son v. United States, 268 U.S. 689 (1925) ...................  7

Baldwin v. New York, 399 U.S. 66 (1970) .......................  7

Lias v. United States, 51 F.2d 215 (4th Cir.), aff’d per 
curiam, 284 U.S. 584 (1931) ........................................... 7

Mason v. Pamplin, 232 F. Supp. 539 (W.D. Tex. 1964), 
a fd ,  Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966) 3

PAGE



11

Pruitt v. State, 16 Wis. 2d 169, 114 N.W. 2d 148 (1962) 8

Rideau v. Louisiana, 373 U.S. 723 (1963) ....................... 3

State v. Cooper, 4 Wis. 2d 251, 89 N.W. 2d 816 (1958) 5
Stroud v. United States, 251 U.S. 15 (1919) ...............  6

United States v. Beadon, 49 F.2d 164 (2nd Cir.), cert.
denied, 284 U.S. 625 (1931) ..........................................  6

United States v. Mellor, 71 F. Supp. 53 (D. Neb. 1946), 
aff’d 160 F.2d 757 (8th Cir.), cert, denied, 331 U.S.
848 (1947) ..........................................................................  6

Young v. United States, 242 F. 788 (4th Cir.), cert, 
denied, 245 U.S. 656 (1917) ..........................................  7

Constitutional and Statutory Provisions:

L a. Code Ceim . P. §§621, 622 ...............................................  6

Tex. Code Ceim. P. Art. 31.01..........................................  6

28 U.S.C. §114 ......................................................................  6

V t. Stat. Tit. 13, §4613......................................................  6

Wis. Const. Art. 3, § 2 ..........................................................  8

Wis. Stat. §6.03 ..........................................................................  8

Wis. Stat. §57.078 ..............................................................  8

Wis. Stat. §270.16 .....................................................................  9

Wis. Stat. §270.17 ................................................................  4

Wis. Stat. §939.60 ..............................................................  8

Wis. Stat. §§954.02, 954.025 (1967), as amended, 
§§968.02, 968.03, 968.04, 968.26

PAGE

9



Ill

Wis. Stat. §954.08 .......................................................  9

Wis. Stat. §955.18, as amended, §§970.02, 970.03 ............  9

Wis. Stat. §956.03, as amended, §971.22 .............................. 2

Wis. Stat. §957.03, as amended, Wis. Stat. §972.03 .... 9
Wis. Stat. §957.05 (1967) ........................................................  9

Wis. Stat. §957.14, now §972.01 ...........................................  9

Wis. Stat. §959.044, now §973.02 ...........................................  8

Wis. Stat. §967.01 ........................................................................  2

Wis. Stat. §§970.02, 971.10 ....................................................  9

Wis. Stat. §971.22 amending §956.03 ................................  2, 6

Wis. Stat. §972.12 ................................   9

Other Authorities:

33 Ford. L. R ev. 498 (1965) ....................................................  6

Lipton, The Classification of Crimes in Wisconsin, 50 
Marq. L. R ev. 346 (1966) ....................................................  8

Note, Community Hostility and The Right to an Im­
partial Jury, 60 Colum. L. R ev. 349 (1960) ................. 5

Note, Wisconsin Criminal Procedure, 1966 Wis. L.
Rev. 430 ..................................................................... 5 3

Standards Relating to Fair Trial and Free Press 
(A.B.A. Project on Minimum Standards for Crim­
inal Justice, 1966) .................................................................. 4 5

PAGE





In t h e

Supreme (Emtri of %  llmti'i) Btntzs
October T erm, 1970 

No. 26

James E dmund Groppi,

v.

S tate of W isconsin,

Appellant,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF WISCONSIN

REPLY BRIEF

Appellant submits this brief in order to respond to cer­
tain claims made by the State in its brief on appeal. 
First, the State claims that no proper record of commu­
nity prejudice has been made in the instant case, and 
therefore defendant has no standing to challenge the W is­
consin Statute denying a change of venue in all misde­
meanor cases. Second, the State claims that the right to 
change of venue is only one of several available methods 
of ensuring an impartial jury trial, and that it is not un­
usual to condition the right to such protections on the 
seriousness of the offense. It concludes that the denial of 
any opportunity for venue in the instant case did not vio­
late due process of law. Finally, the State claims that 
there are significant differences in the treatment accorded 
felony and misdemeanor defendants in Wisconsin and, 
therefore, that the limitation of the right to change of 
venue to felony cases did not violate equal protection



2

of the law. Appellant submits that these arguments are 
without merit for the reasons set forth briefly below, and 
urges the Court to reverse his conviction on the grounds 
set forth in his brief on appeal.

ARGUMENT

I.

Defendant Has Standing to Challenge the Wisconsin 
Statute Denying a Change of Venue in Misdemeanor 
Cases.

As the State’s brief concedes, there is no question that 
Wis. S tat. A n n . §956.03(3), as construed by the state 
courts in the instant case, absolutely prohibited a change 
of venue in all but felony cases (Brief for Appellee, p. 5).1 
As a result, the trial court denied defendant’s motion for a 
change of venue without allowing him any opportunity to 
provide the proof he had proffered as to the “nature and 
extent” of the news coverage his activities had received, 
and “ its effect upon this community and on the right of 
defendant to an impartial jury trial.” (A.23-25; see Brief 
for Appellant, p. 8, and pp. 14-15, n. 6). The State con­

1 Wis. Stat. §971.22 now permits a change of venue in all 
criminal cases. This section is part of the new Wisconsin Criminal 
Procedure Code, enacted in 1969, Chap. 255, Laws of 1969. It was 
effective July 1, 1970, and is applicable prospectively only: 

Section 967.01 Title and Effective Date.
Title XLVII may he cited as the criminal procedure code 

and shall be interpreted as a unit. This code shall govern 
all criminal proceedings and is effective on July 1, 1970. It 
applies in all prosecutions commenced on or after that date. 
Prosecutions commenced prior to July 1, 1970, shall be gov­
erned by the law existing prior thereto.

Chap. 255 represents a broad revision of state statutes dealing 
with criminal procedure; it repeals Wis. Stat. §§954-964 and sub­
stitutes therefor new §§967-976.



3

tends on appeal that since defendant could have presented 
evidence of community prejudice on a motion for continu­
ance, on voir dire proceedings, or on a motion for new 
trial, the absence of proof of community prejudice in the 
record deprives defendant of standing to challenge the 
statute denying him any opportunity for a change of 
venue. But the question at issue is whether defendant 
had a right to prove to the court that only a change of 
venue could adequately protect his right to an impartial 
jury trial. Clearly defendant’s standing to raise this issue 
and to show that remedies such as continuance, voir dire 
and motion for a new trial may, under certain circum­
stances, be inadequate to protect the right to an impar­
tial jury cannot depend on whether he pursued such al­
legedly inadequate remedies. Nor can it depend on any 
showing of the attitudes revealed by actual jurors on 
voir dire, as this Court specifically held in Rideau v. 
Louisiana, 373 U.S. 723, 727 (1963). Since the trial court 
denied defendant any opportunity to show that commu- 
nity prejudice was such as to justify a change of venue, 
on the ground that Wisconsin law would not permit a 
change of venue in any event, defendant cannot be pre­
cluded from challenging the statute’s constitutionality be­
cause the record fails to show adequate community preju­
dice. Mason v. Pamplin, 232 F. Supp. 539, 542-43 (W.D. 
Tex. 1964), aff’d, Pamplin v. Mason, 364 F.2d 1, 6-7 (5th 
Cir. 1966).



4

Change of Venue Has Traditionally Been Recognized 
as a Means of Guaranteeing the Defendant’s Right to 
an Impartial Jury Trial and May, Under Certain Cir­
cumstances, Be Required by Due Process of Law.

The State contends that change of venue is only one of 
several possible methods of ensuring an impartial jury 
and, therefore, is not constitutionally required (Brief for 
Appellee, pp. 14-18). But apart from continuance and 
voir dire, whose inadequacies are dealt with in appellant’s 
brief at pp. 22-25,2 the State points specifically only to 
change of venire, control of media treatment, oath-giving, 
cautionary instructions, sequestration of jury and protec­
tion of witnesses as “devices available to guard against 
undesirable intrusions into the fact-finding process” (pp. 
14-15). Even if such devices are available and used to 
their maximum potential, change of venue remains essen­
tial, under certain circumstances, to guarantee jury im­
partiality. Thus, as noted at p. 21 of appellant’s brief, the 
American Bar Association’s Report on Standards Relat­
ing to Fair Trial and Free Press (A.B.A. Project on Mini­
mum Standards for Criminal Justice, 1966) found that 
even with liberalization of the procedural remedies avail­
able to defendants, including voir dire examination and 
continuance, and with radical changes in the law govern­
ing release of news to and by the press, the availability 
of change of venue remained vital. Moreover, there is no 
indication that Wisconsin has initiated any of the reforms

2 See also, with respect to voir dire, Wis. Stat. Ann. §270.17: 
Section 270.17. Newspaper Information Does Not 
Disqualify.

It shall be no cause of challenge to a juror that he may 
have obtained information of the matters at issue through 
newspaper or public journals, if he shall have received no 
bias or prejudice thereby . . .

II.



5

recommended by the A.B.A. Report. Certainly none o f 
the devices mentioned in appellee’s brief constitute ade­
quate or even significant protections under Wisconsin law 
and practice. Change of venire— a device by which the 
jury panel is summoned from outside the area of intensive 
news coverage—is not available in Wisconsin, and in any 
event is useful only in cases where community sentiment 
is not strong.3 Nor has Wisconsin apparently undertaken 
to change in any way the freedom traditionally accorded 
news media with respect to trial coverage, nor to assert 
any of the kinds of controls over the release of news to 
or by the press recommended by the A.B.A. Report. Oath­
giving and cautionary instructions are obviously even less 
effective devices than the voir dire for getting at jurors’ 
conscious and unconscious prejudices. Sequestration of 
the jury is rarely used in Wisconsin except in life im­
prisonment or capital cases ;4 5 in any event, its effectiveness 
is limited because it guards only against prejudicial pub­
licity which occurs after the trial has begun, it may not 
screen out strong community feeling, and the inconveni­
ence to the jurors may prejudice them against the de­
fendant.6

The State also contends that it is not unusual to con­
dition devices designed to ensure jury impartiality on the 
seriousness of the offense. But in fact, in Wisconsin, 
as elsewhere generally, the availability of such devices is

3 See A.B.A. Report at 137-38; Note, Community Hostility and 
The Right to an Impartial Jury, 60 Colum. L. Rev. 349 366-67 
(1960).

Only a very few jurisdictions provide for change of venire and 
these also authorize change of venue under similar circumstances. 
See Note, supra, at 365-67; A.B.A. Report, p. 137, nn. 159, 160.

4 See State v. Cooper, 4 Wis. 2d 251, 89 N.W.2d 816 (1958) ; 
Note, Wisconsin Criminal Procedure, 1966 Wis. L. Rev. 430, 479.

5 A.B.A. Report at pp. 140-42.



6

not limited to felony cases with the sole exception of the 
change of venue statute at issue in the instant case.6

The State apparently concedes that virtually all Ameri­
can jurisdictions today provide for a change of venue in 
all serious criminal cases, regardless of whether they are 
classified as felony or misdemeanor, arguing only that 
in the past a number of states have limited the change 
of venue device to felony cases. But as pointed out in the 
Brief for Appellant, at pp. 31-32 and n. 41, only a few 
jurisdictions have ever so limited change of venue, and 
the trend has been toward elimination of any such dis­
tinction.7

6 The only distinction made in Wisconsin is for cases involving 
possible life imprisonment: in such cases additional peremptory 
challenges are available, and sequestration of the jury is manda­
tory rather than discretionary. See p. 9, nn. 14, 16, infra.

7 The reference in Brief for Appellee, p. 13, n. 35, to footnote 51 
of 33 Ford. L. Rev. 498, 507 (1965) as listing eight states which 
by statute limited change of venue to more serious crimes is mis­
leading. Included among the eight are Maryland, where a dis­
tinction is drawn only between capital and non-capital cases, and 
only in terms of whether the right to change of venue is absolute 
or depends on a showing of necessity; Massachusetts, where the 
statute providing for change of venue in capital crimes was held 
in 1911 not to limit the inherent right to change of venue in all 
criminal cases; and Pennsylvania, where the right to change of 
venue in felonies and misdemeanors is distinguished only in terms 
of the kind of proof required. See Brief for Appellant pp. 31-32, 
n. 41, for citations and descriptions of relevant statutes and cases. 
Also included among the eight listed in the Fordham Note are 
Louisiana, Texas, Vermont and Wisconsin, all of which amended 
their laws to remove such a distinction. See, La. Code Crim. P. 
§§621, 622 (1966); Tex Code Crim. P. Art. 31.01 (1966); Vt. 
Stat. Tit. 13, §4631 (1969) ; Wis. Stat. §971.22 (1969).

Appellee also argues that prior to 1946, change of venue was 
not available in federal practice. However, federal law did provide 
for a change of venue from one division to another within a single 
district. 28 U.S.C. §114; see, e.g., Stroud v. United States, 251 
U.S. 15, 18-19 (1919) ; United States v. Beadon, 49 F.2d 164 (2nd 
Cir.), cert, denied, 284 U.S. 625 (1931) ; United States v. Mellor, 
71 F. Supp. 53, 64 (D. Neb. 1946), aff’d, 160 F.2d 757 (8th Cir.),



7

The Distinctions Between the Treatment Accorded 
Felony and Misdemeanor Defendants in Wisconsin Are 
Not Adequate to Justify, Under the Equal Protection 
Clause, Prohibiting a Change of Venue for Those 
Charged With a Misdemeanor.

The State argues, at pp. 19-21 of its brief on appeal, 
that conviction of a felony in "Wisconsin carries more seri­
ous consequences than conviction of a misdemeanor, and 
that felony defendants have therefore been provided addi­
tional procedural safeguards, including the right to change 
of venue.

The only factors mentioned supporting the claim that a 
felony conviction carries more serious consequences are 
length and place of punishment, disfranchisement and so­
cial stigma. But this Court, as well as the Wisconsin Su­
preme Court, has rejected the motion that such traditional 
distinctions are of any particular relevance in determin­
ing what class of criminal defendants should be accorded 
fundamental procedural protections. See Baldwin v. New 
York, 399 U.S. 66 (1970); see generally appellant’s brief 
at pp. 35-36. In any event, on close examination the dis­
tinctions alleged fade. Neither length nor place of punish­
ment necessarily determines the degree of a crime in W is­

III.

cert. denied, 331 U.S. 848 (1947). Moreover, a number of cases 
decided prior to 1946 indicate that there was discretion to grant 
a change of venue generally if the circumstances warranted it. 
See, e.g., Young v. TJnited States, 242 F. 788, 792 (4th Cir.) cert, 
denied 245 U.S. 656 (1917); Lias v. United States, 51 F.2d 215, 
217 (4th Cir.), aff’d per curiam, 284 U.S. 584 (1931); Allen v. 
United States, 4 F.2d 688, 695-98 (7th Cir. 1924), cert, denied 
sub nom, Hunter v. United States, 267 U.S. 597, Mullen v. United 
States, 267 U.S. 598 and Johnson v. United States, 268 U.S. 689



8

consin. A misdemeanant can be sentenced to state prison 
for more than a year ;8 a felon can be sentenced to a county 
jail for less than a year. It is only if the substantive 
statute fails to provide the place of imprisonment that 
the length of the sentence affects the place and, therefore, 
the degree of the crime. Wis. Stat. §959.044, now §973.02; 
§939.60. Even then length of sentence is not determinative, 
but instead a variety of complicated factors enter into the 
decision as to how the conviction should be treated. See 
generally Lipton, The Classification of Crimes in Wiscon­
sin, 50 Mabq. L. Rev. 346 (1966); Note, Wisconsin Criminal 
Procedure, 1966 Wis. L. Rev. 430, 487-89. Also, while 
Wisconsin’s repeater statute does provide for more severe 
enhancement of punishment for felons than for misde­
meanants, it also means, as noted in appellant’s brief at 
p. 37, n. 47, that misdemeanors can bring increased penal­
ties and incarceration in state prison. The fact that con­
viction of a felony carries the collateral consequence of 
disfranchisement is hardly significant in light of Wis­
consin’s statutes providing for the automatic restoration 
of such civil rights upon satisfaction of sentence. See Wis. 
Const. Art. 3, §2; Wis. Stat. §§6.03 (1967); 57.078 (1959). 
And the social stigma attached to a conviction is not likely 
to be determined by whether it is officially labelled a mis­
demeanor or felony but rather by the nature of the crime 
and the seriousness with which it is treated by authorities. 
There is then little to justify any conclusion that a felony 
conviction carries with it more serious consequences than 
a misdemeanor conviction.

Similarly, there are virtually no significant differences in 
the procedural safeguards accorded felony and misde­
meanor defendants. The only one mentioned by the State 
is the felony defendant’s right to a preliminary hearing.

8 See, Note, Wisconsin Criminal Procedure, 1966 Wis. L. K e v . 
430, 488; Pruitt v. State, 16 Wis. 2d 169, 114 N.W. 2d 148 (1962).



9

Wis. Stat. §955.18 (1967), as amended, Wis. Stat. §970.02 
( l ) (c ) , (4), (5), §970.03 (1969).9 This is hardly too signifi­
cant, especially in light of the fact that there are procedures 
guaranteeing a judicial finding of probable cause before a 
warrant or summons can be issued for a misdemeanant’s 
arrest,9 10 11 and guaranteeing the misdemeanant’s right to a 
prompt trial.11 With respect to virtually all other pro­
cedural protections including the right to jury trial,12 no 
distinction is made between felony and misdemeanor. And, 
most significant, with respect to all protective devices 
aimed at ensuring a fair and impartial jury, no such dis­
tinction is drawn. Thus the law is identical for felonies 
and misdemeanors with respect to the selection of the 
jury, including the summoning of jurors, impaneling and 
qualifications, challenges for cause13 and peremptory chal­
lenges,14 15 and with respect to instructions,16 sequestration,16 
and continuance.

In conclusion, the distinctions mentioned by the State 
between the treatment accorded felony and misdemeanor 
defendants in Wisconsin are of minor importance. Fur­

9 Prior to 1961 there was no provision limiting the right to pre­
liminary hearing to felony eases. See Wis. Stat. §954.08 (1949).

10Wis. Stat. §954.02, 954.025 (1967), as amended, §§968.02, 
968.03, 968.04, 968.26 (1969).

11 Wis. Stat. §§970.02 (3), 971.10 (1969).
12 See Brief for Appellant pp. 15-16, n. 7 ; Brief for Appellee, 

p. 5, n. 6.

13 See generally Wis. Stat. §957.14 (1967), now §972.01 (1969) : 
Wis. Stat. §270.16 (1967).

14 Wis Stat. §957.03 (1967) (4 peremptory challenges allowed 
in all cases except those involving possible life imprisonment where 
12 allowed), as amended, Wis. Stat. §972.03 (1969) (same except 
that in life cases number reduced from 12 to six).

15 See note 13 supra.

16 Wis. Stat. §972.12 (1969) ; See also former §957.05 (1967).



1 0

ther, when Wisconsin procedures are looked at as whole, 
it is clear that there is no significant distinction in the 
treatment accorded misdemeanor and felony defendants, 
that there is no coherent or consistent principle of classi­
fication of crimes, and that a crime’s classification is totally 
unrelated to the reasons that change of venue may be re­
quired to vindicate a defendant’s constitutional right to an 
impartial jury. (See generally Brief for Appellant, pp. 
34-37.)

Respectfully submitted,

Jack Greenberg
E lizabeth B. D ubois 

10 Columbus Circle 
New York, New York 10019

M ichael M eltsner
Columbia Law School 
435 West 116th Street 
New York, New York 10027

A nthony  G. A msterdam 
Stanford Law School 
Stanford, California 94305

H aywood B urns
112 West 120th Street 
New York, New York 10027

T homas M. Jacobson
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

R obert E. S utton
710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Attorneys for Appellant









MEILEN PRESS INC. — N. Y. C. 219



A P P E N D I X

Supreme Court of the United States

OCTOBER TERM, 1970

No. 26

JAMES EDWARD GROPPI, APPELLANT,

vs.

STATE OF WISCONSIN, RESPONDENT.

ON APPEAL TO THE SUPREME COURT OF WISCONSIN

JURISDICTIONAL STATEM ENT FILED JUNE 17, 1969 

PROBABLE JU RISDICTION NOTED JUNE 15, 1970





I N D E X

Docket entries .................................................................... la

Complaint for Resisting an Officer................................  2a

Warrant for Resisting an Officer................................... 4a

Demand for Transfer to Circuit C ourt......................... 6a

Resisting an Officer ..........................................................  7a

Ruling on Motion for Change of V enue....................... 8a

Proceedings ........................................................................  9a

Judgment Roll # 1  ............................................................ 10a

Judgment Roll # 2  ...........................................................  12a

Judgment Roll # 3  .........    14a

Judgment Roll # 4  ...........................................................  16a

Motion ..................................................................................  18a

Affidavit of James Groppi ...........................................    19a

Findings of Fact and Conclusions of L a w ...................  20a

Notice of Motion ................................................................  22a

Motion for Change of V enue............................................. 23a

Affidavit of James E. G ropp i............................................. 24a

Letter Dated October 18, 1967 ...........................................  26a

Notice of Motion ................................................................. 28a

PAGE



IX

Motion to Dismiss ............................................................  29a

Exhibit Annexed to Notice of Motion ........................... 30a

Notice of Motion ..............................................................  32a

Motion for Change of Date ............................................  33a

Exhibit Annexed to Notice of Motion ..........................  34a

Notice of M otion................................................................  36a

Motion to Dismiss ............................................................  37a

Notice of Motion ..............................................................  38a

Motion to Dismiss ............................................................  39a

Order to Show Cause ......................................................  42a

Affidavit of Henry W. Maier ..........................................  43a

Exhibit Annexed to Order to Show Cause........... 44a

Exhibit Annexed to Order to Show Cause ........... 46a

Certification ................................................................ -....  48a

Defendant’s Requested Instructions .............................  49a

Verdict ................................................................................  50a

Order of the Court, Providing Probation, Etc.............  51a

Motion After Verdict ......................................................  52a

PAGE

Exhibit Annexed to Motion 54a



Notice of Appeal .............................................................. 56a

Transcript of Testimony .1..............................................  57a

The Court’s Charge ..........................................................  175a

Request from Jury for Further Instructions............... 181a

Verdict ................................................................................ 183a

Hearing on Motion to Accept Affidavit of Prejudice .. 186a

Stipulation With Reference to Approval of Tran­
script ..............................................................................  196a

Certificate of Transmittal ...............................................  198a

Notice of Motion ....    199a

Motion for Rehearing ......................................................  201a

Judgment ............................................................................  202a

Remittitur ..........................................................................  204a

Opinion .......................................................................... .....  205a

Dissenting Opinion ...........................................................  218a

Concurring Opinion ...............................................    230a

Order Denying Motion for Rehearing........................... 232a

Notice of Appeal to the Supreme Court of the United 
States ..............................................................................  233a

Certification .......................................................... 234a

Ill

PAGE





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Docket Entries



2a

The State of Wisconsin, to the Sheriff, or any Constable 
of said County, or any Police Officer of the City of 
Milwaukee:

W hereas, Wilfred Buchanan, being first duly sworn on 
oath, states to the Honorable John J. Kenney, as Magis­
trate that James Edmund Groppi, the abovenamed defen­
dant on the 31st day of August A.D., 1967, in the County 
of Milwaukee, Wisconsin, did unlawfully knowingly resist 
Wilfred Buchanan a duly appointed, qualified and acting 
police officer of the City of Milwaukee, in said County, 
while the said Wrilfred Buchanan was then and there en­
gaged in doing' an act in his official capacity and with 
lawful authority, to-wit:
said Wilfred Buchanan personally observed said defendant 
resist Buchanan, at 900 West North Avenue, in the Ctiy 
of Milwaukee, in said County, to-wit: while said defendant 
was being carried to a police wagon after being placed 
under arrest, said defendant began kicking his legs, strik­
ing said officer Wilfred Buchanan in the body with his foot; 
that said defendant then states to said W ilfred Buchanan: 
“You fuckinn’ Son of a Bitch, I want your number.” 
contrary to Section 946.41 of the statutes, and against the 
peace and dignity of the State of Wisconsin, and prays 
that the said James Edmund Groppi may be arrested and 
dealt with according to law.

Complaint for Resisting an Officer

/ s /  W ilfred B uchanan



3a

Subscribed and sworn to before me 
this 1st day of September A.D., 1967

/ s /  J ohn J. K enney 
Magistrate

Complaint for Resisting an Officer

I hereby find and determine that there is 
probable cause for the issuance of a war­
rant in the above matter.

/ s /  John J. K enney 
Magistrate



4a

The State of Wisconsin, to the Sheriff, or any Constable 
of said County, or any Police Officer of the City of 
Milwaukee:

W hereas, W ilfred B uchanan , has this day stated on 
oath, in writing to the Honorable J ohn J . K enney , as 
Magistrate that James E dmund Groppi, the abovenamed 
defendant on the 31st day of August A.D., 1967, in the 
County of Milwaukee, Wisconsin, did unlawfully know­
ingly resist Wilfred Buchanan a duly appointed, qualified 
and acting police officer of the City of Milwaukee, in said 
County, while the said Wilfred Buchanan was then and 
there engaged in doing an act in his official capacity and 
with lawful authority, to-wit:
said Wilfred Buchanan personally observed said defendant 
resist Buchanan, at 900 West North Avenue, in the City 
of Milwaukee, in said County, to-wit: while said defendant 
was being carried to a police wagon after being placed 
under arrest, said defendant began kicking his legs, strik­
ing said officer Wilfred Buchanan in the body with his 
foot; that said defendant then states to said Wilfred 
Buchanan: “You fuckinn’ Son of a Bitch, I want yonr 
number.”
contrary to Section 946.41 of the statutes, and against the 
peace and dignity of the State of Wisconsin, and prays 
that the said J ames E dmund Groppi may be arrested and 
dealt with according to law.

Now, T herefore, in the name of the State of Wisconsin, 
you are commanded forthwith to apprehend the said defen­
dant named above before the County Court of Milwaukee 
and bring same before the Honorable Christ T. Seraphim

Warrant for Resisting an Officer



5a

Judge, Branch 4 County Court to be dealt with according 
to law.

W itness, the Honorable John J. K enney 
Magistrate of the County of Milwaukee, the 
1st day of September in the year of our Lord 
One Thousand Nine Hundred and Sixty Seven.

/ s /  J ohn J. K enney
Magistrate

Warrant for Resisting an Officer



6a

Demand for Transfer to Circuit Court

(Filed October 12, 1967)

Now comes H ugh R. O’Connell, District Attorney of 
Milwaukee County by J ohn J. S pindler, Assistant District 
Attorney of Milwaukee County, appearing for and on be­
half of the plaintiff S tate of W isconsin and sets forth as 
follows:

1. That the plaintiff S tate of W isconsin is a party to 
this controversy.

2. That on the 6th day of October, 1967, the defendant 
demanded a trial by a jury of twelve and that less than 
ten days have expired from the date of said demand until 
the filing of this demand for transfer.

Now, T herefore, pursuant to sec. 324.17(9) Wisconsin 
Statutes, the plaintiff demands that the matter be trans­
ferred from the County Court of Milwaukee County to 
the Circuit Court of Milwaukee County and that the Honor­
able F. Ryan Duffy, Jr., County Court Judge, immediately 
cause the record and proceedings in this matter to be 
certified to the Circuit Court of Milwaukee County, where 
according to the aforementioned statute the matter shall 
be tried and determined as a Circuit Court action.

Dated at Milwaukee, Wisconsin, this 11th day of Octobek,
1967.

H ugh R. O’Connell 
District Attorney

John J. Spindler 
Assistant District Attorney 
Attorneys for Plaintiff

Date of trial:

October 19, 1967, at 9:00 a.m.



7a

Resisting an Officer

(Filed October 17, 1967)

I, Raymond W. Fleming, Chief Deputy Clerk of the 
County Court of the County of Milwaukee, do hereby cer­
tify that the foregoing is a correct copy of the record, and 
of all entries, minutes, orders and proceedings before said 
County Court on the arrest and examination of the above 
named defendant; that I have compared the same with 
the original, and that it is a true transcript threrefrom 
and of the whole thereof.

I further certify that the Complaint, Warrant, Evidence 
and Recognizances taken before and by said County Court 
in this matter, and all other papers hereunto annexed, are 
the originals; and all the papers filed therein, and the 
same are herewith returned to the Clerk o f the Circuit 
Couit of the City and County of Milwaukee, pursuant to 
law.

In Testimony Whereof, I have here­
unto set my hand and affixed the seal of 
said County Court at the City of Mil­
waukee, this 12th day of Oct. A.D. 1967.

/ s /  R aymond W. F leming 
Chief Deputy Clerk of 
Courts, Criminal-Misde­
meanor-Traffic 
Divisions

By / s /  (Illegible)
Deputy



8a

Ruling on Motion for Change of Venue

(Filed October 3, 1967)

Charge: Resisting an Officer

R uling on M otion for Change of V enue in the 
above entitled action rendered on October 2, 1967, 
by the H onorable F. R yan D uffy , Jr., County 
Court Judge.

A ppearances :

John J. Spindler—Assistant District Attorney, appear­
ing for the State of Wisconsin.

James M. Shellow and William M. Coffey Attorneys 
for Defendant.

Defendant not in Court.
Howard E. Lutz— Official Reporter.



9a

Proceedings

Mr. Shellow: Your Honor, the motion has been made by 
the defendant for a change in venue on the grounds of 
community prejudice. It is my understanding that the 
Court is ready to rule.

The Court: Well, this is the matter of the State of 
Wisconsin, Plaintiff, vs. Father James E. Groppi; being 
Case Is umber 2-63208, scheduled today for a ruling on the 
motion for a change of venue. Such motion being filed 
with this Court I believe last Monday, is that not correct?

Mr. Shellow: Yes.
The Court: And was here today for a ruling on those 

motions, written motions.
So, therefore, the change of venue as asked for in the 

motion for a change of venue will be denied; it not being- 
provided for in the Wisconsin Statutes.

Also filed with the Court is a Findings of Fact and 
Conclusions of Law this date for signature of the Court.

And I ’ll leave that unsigned.
Mr. Shellow: All right. Your Honor, it’s my under­

standing that this motion is being- denied because the stat­
ute will not permit a chang-e of venue on the grounds of 
community prejudice and that is the only reason it’s being 
denied?

The Court: No, I ’m denying the motion for a change of 
venue because this is a misdemeanor case and not a felony. 
And the Wisconsin Statute does not provide for a change 
of venue in a misdemeanor matter.

Mr. Shellow: Thank you, your Honor.
The Court: Not in a misdemeanor matter; a felony only. 

* # # # #



10a

Judgment Roll # 1

(See Opposite) (EF*



John I.'i u a  rnnn

Thomas Jacobson

THE STATE OF WISCONSIN 
VS.

JAI-3S EBMJTID GROPES 
1122 U. Clarke

ED 11-16-30

A tty s . for P ro se cu t io n  

___ Attys. for D e fe n s e

JE51/CSSTER
. STATE OF WISCONSIN 

CIRCUIT COURT 

COUNTY OF MILWAUKEE

' OFFENSE: 

RESISTING. AII OFFICER

O ct. 1 2 ,  l $ o ?  The original complaint, warrant and all other papers in this case

from the County Court, Milwaukee County, received and filed.

-.Information- filed,—capias-issue d_and._ ref uroe.d. -on_samj?_d.a.y_by

Deputy-Sheriff. * •
October IS, 1967. The Kon.H. J, Steffes Presiding.

Defendant with Attorney in court. Dear Judge Duffy: Pursuant to Section 253.19,
I ,  Herbert J. S te ffes , Presiding Judge of Branch 11 of theCircuit Court in and 
for the County of Milwaukee, hereby ca ll  upon you to act as a temporary Circuit 
Court Judge to hear, try and determine a l l  of the issues involved in the following] 
action herein. .Sincerely., H. J. S te ffes , Circuit Court (Judge, Branch!!. . B .  )

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(See Opposite) I®"



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14a

Judgment Roll # 3

(See Opposite)



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15a



16a

Judgment Roll # 4

(See Opposite) ^







17a



18a

Motion

(Filed September 14, 1967)

Now comes the defendant in the above-entitled cause by 
his attorneys Shellow, Shellow & Coffey, and, upon all 
of the files, records and proceedings heretofore had herein 
and upon the affidavit submitted infra, respectfully moves 
this Court for an order changing the venue of this cause 
to another judge and another county where the prejudice 
complained of does not exist.

Respectfully submitted,

F r . James Groppi

By : Shellow, Shellow & Coffey



19a

Affidavit of James Groppi

(Filed September 7, 1967)

State of W isconsin,
Milwaukee County, s s .  :

James Groppi, being first duly sworn on oath, deposes 
and says, that he is the defendant in the above-entitled 
cause; that he has reason to believe and does believe that 
he cannot receive a fair and impartial trial before the 
Honorable Christ T. Seraphim, County Judge, nor in the 
County o f Milwaukee, and makes this affidavit in support 
of his motion to change the venue of this cause to another 
judge and another county where the prejudice complained 
of does not exist.

/ s /  F r. James E. Groppi

Subscribed and sworn to before me this 
14th day of September, 1967.

/s /  (Illegible)
Notary public, Milwaukee Cty., Wis.
My commission is permanent.



20a

Findings of Fact and Conclusions of Law

The defendant stands charged with a violation of Sec. 
946.41 (1) Wis. Stat.—Resisting an Officer. The offense 
charged is a misdemeanor. The defendant has moved this 
Court for a change o f venue to another county and in 
support of this motion has asserted that massive news 
coverage of his activities will preclude a fair and impar­
tial trial in Milwaukee County.

The Court finds the following as facts:

1. During the past six months there has been exten­
sive and continuous news coverage of the activities of 
this defendant. This news coverage has been in news­
papers of general circulation in the community, on 
radio and on television; the activities of the defendant 
have been the subject of editorial comment.

2. As a consequence of the aforesaid news cover­
age, the defendant is the most controversial public 
figure in Milwaukee County.

3. As a consequence of the aforesaid news coverage, 
the defendant is the subject of extensive discussion 
throughout the community and most persons have 
expressed views concerning his conduct.

The Court concludes as a matter of law :

1. The defendant will not be able to obtain a fair 
and impartial trial at this time in Milwaukee County.

2. In considering the motion of the defendant for 
a change in venue this Court is bound by the provi­
sions of Sec. 956.03(3) Wis. Stat.

3. The provisions of Sec. 956.03(3) Wis. Stat. per­
mit a change of venue on the grounds of community 
prejudice only in felony prosecutions.



21a

Findings of Fact and Conclusions of Law

4. This Court is without power to grant a motion 
for a change of venue on grounds of community 
prejudice.

It Is Ordered that the defendant’s motion for a change 
of venue be and hereby is denied.

Dated at Milwaukee, Wisconsin, this .......  day of Octo­
ber, 1967.

B y the Court:



22a

Notice of Motion

(Filed September 26, 1967)

To:

H ugh R. O’Connell, E sq.
District Attorney
Milwaukee County
Safety Building
Milwaukee, Wisconsin

Please take notice that on the 2nd day of October, 
1967 at 9:00 o’clock in the forenoon or as soon thereafter 
as counsel may be heard, the undersigned will bring on 
for hearing before the Honorable F. Ryan Duffy, Jr., 
County Judge, a motion to change the venue o f this cause, 
a true copy of which is hereto annexed.

Dated at Milwaukee, Wisconsin this 25th day of Sep­
tember, 1967.

Shellow, Shellow & Coffey 
Attorneys for Defendant

P. 0 . A ddress 
660 East Mason Street 
Milwaukee, Wisconsin 53202 
271-8535



23a

Motion for Change of Venue

Now comes the above-named defendant, Fr. James E. 
Groppi, by Shellow, Shellow & Coffey, his attorneys, 
and moves this Court for an order changing the venue of 
this prosecution to a county where community prejudice 
against this defendant does not exist and where an im­
partial jury trial can be had.

That said motion is based upon all the records, files and 
proceedings heretofore had in this action and upon the 
affidavit of defendant hereto annexed.

As a further basis for said motion, defendant requests 
that this Court take judicial notice of the massive cover­
age by all news media in this community of the activities 
of this defendant and such activities as have been related 
to him, or, in the alternative, that the defendant be per­
mitted to offer proof of the nature and extent thereof, its 
effect upon this community and on the right of defendant 
to an impartial jury trial.

Respectfully submitted,

F r. James E. Groppi 

By : (Illegible)

Shellow, Shellow & Coffey 
Attorneys for Defendant



24a

Affidavit of James E. Groppi

State of W isconsin,
M ilwaukee County, ss. :

Fr. James E. Groppi, being first duly sworn, on oath, 
deposes and says:

1. That he is the defendant in the above-entitled action; 
that this affidavit is made in support of defendant’s motion 
to change the venue of the prosecution of this cause.

2. That affiant has fully and fairly stated the case in 
this action to James M. Shellow, his attorney, who resides 
in the City and County of Milwaukee, Wisconsin, and that, 
upon such statement thus made, affiant is advised by his 
said counsel and verily believes that he has a valid and 
substantial defense to said prosecution, upon the merits, 
and to the whole thereof.

3. That an impartial jury trial of this prosecution can 
not be had in Milwaukee County in which this action is 
pending, as this affiant has reason to believe and does verily 
believe; and that the reasons and grounds of his belief 
are as follow s:

a. That affiant has been active in this County in support 
of the efforts o f Negro citizens to obtain civil rights.

b. That affiant is the advisor to the Youth Council of 
the Milwaukee Chapter of the National Association for 
the Advancement of Colored People, which said Youth 
Council has been active in this County in the same area.

c. That the activities and actions of affiant and said 
Youth Council have received massive and frequently ad-



25a

Affidavit of James E. Groppi

verse news coverage and publicity by all of the news media 
in Milwaukee County.

d. That some of said news media have published edi­
torial criticism of the activities of affiant and said Youth 
Council, thereby further arousing community prejudice.

e. That by reason thereof and by reason of the feelings 
and prejudices engendered thereby, community prejudice 
against affiant exists in Milwaukee County sufficient to 
make it impossible for affiant to have a fair and impartial 
jury trial in said County, as guaranteed to him by the Sixth 
and Fourteenth Amendments to the United States Consti­
tution.

F r. James E. Groppi 
Fr. James E. Groppi

(Sworn to September 26, 1967.)



26a

Letter Dated October 18, 1967

Circuit Court Chambers 
Branch 11 Second Judicial Circuit 

Criminal Court Branch 
Safety Building 

Milwaukee, Wisconsin 53233

H erbert J. Steefes 
Senior Judge 

Criminal Court Branches

October 18, 1967

Hon. F. Ryan Duffy, Jr.
County Court Judge, Br. 12 
Misdemeanor— Traffic Division 
Safety Building 
Milwaukee, Wisconsin

Dear Judge Duffy:
Pursuant to Section 253.19, I, Herbert J. Steffes, Presid­
ing Judge of Branch 11 of the Circuit Court in and for the 
County of Milwaukee, hereby call upon you to act as a 
temporary Circuit Court Judge to hear, try and determine 
all of the issues involved in the following action:



27a

Letter Dated October 18, 1967

State of W isconsin vs James E dmund Groppi

County Court No. 2-63208, and Circuit Court No. G-4718;

Resisting an Officer, Section 946.41.

Sincerely,

H. J. Steffes,
H. J. Steffes,
Circuit Judge, Branch 11

HJS :bmd
cc: Hon. Robert W. Hansen, 

Chairman, County Board 
of Judges
Thomas Jacobson for 
Defendant



28a

Barbee and Jacobson 
Attorneys at Law

Notice of Motion

To:
H ugh O’Connell 
District Attorney 
Safety Building 
Milwaukee, Wisconsin

Please take notice that on the 30th day of October, 1967, 
at 2:15 o’clock in the afternoon, or as soon thereafter as 
counsel may be heard, we shall appear before the Hon­
orable F. Ryan Duffy, Jr., Judge of the Circuit Court, in 
his courtroom, of the Milwaukee County Safety Building 
at Milwaukee, Wisconsin, and shall present the motion, 
true copy o f which is attached hereto.

Dated at Milwaukee, Wisconsin, this 30th day of October, 
1967.

Barbee & Jacobson

Attorneys for Defendant 
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202



29a

Now cames the above named defendant in the above 
entitled action and moves to dismiss, and for grounds to 
dismiss says:

1. That the Court lacks jurisdiction over the defendant 
in that Section 324.17(9), Wisconsin Statutes, whereunder 
the instant case has been transferred from Milwaukee 
County Court to the present Court sitting as an acting 
Circuit Court, is unconstitutional in its application to the 
present case before said Court in that said defendant’s 
rights under the Fourteenth Amendment, United States 
Constitution, is violated thereby.

Dated at Milwaukee, Wisconsin, this 30th day of October, 
1967.

Motion to Dismiss

Barbee & Jacobson

Attorneys for Defendant 
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202



30a

Exhibit Annexed to Notice of Motion

(See Opposite) tt®=>



/  y  '

. . : :  ; ..........■ -; .  / / ; '  ■





31a



32a

To: H ugh O’Connell 
District Attorney 
Safety Building 
Milwaukee, Wisconsin

P lease take notice that on the 4th day of January, 1968, 
at 9:00 o’clock in the forenoon, or as soon thereafter as 
counsel may be heard, we shall appear before the Honor­
able F. Ryan Duffy, Jr., Judge of the Circuit Court, in his 
courtroom, of the Milwaukee County Safety Building at 
Milwaukee, Wisconsin, and shall present the motion, true 
copy of which is attached hereto.

Dated at Milwaukee, Wisconsin, this 4th day of January,
1968.

Notice of Motion

B arbee & Jacobson

Attorneys for Defendant 
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202



33a

Now comes the above named defendant in the above 
entitled action and moves the Court for a change of venue, 
and for grounds for change of venue says:

1. The attached articles from the Milwaukee Journal, 
December 11, 1967 and the Milwaukee Sentinel, December 
12, 1967 relating to the Court’s granting defendant’s coun­
sel Motion for Mistrial; upon information and belief the 
present jury panel is the same jury empaneled to hear the 
aforesaid proceedings and now is prejudiced so that de­
fendant cannot receive a fair and impartial hearing on the 
re-trial before the same jury panel.

B arbee & Jacobson

Attorneys for Defendant 
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

Motion for Change o f Date



34a

Exhibit Annexed to Notice of Motion

(See Opposite) 25^



7
I  U I A  J ■ '• —' •- -

r t ■

I

An
Janos

:7a tiier v, T ^ O ' n m  p  C ' - iL— ' - - v  —' I-.'.. \^S <_*A >.
a t t o r n e y  for Faihcrjlhe mayor s proclamation bnn- 

K. C r o p  pi, who is n 1 n E nighttime mai cb.e.s. He
char—il with resisting arr:-'til ' 'ns Participating in an open 

, “  . . • , , * Ihoustng demonstration,asked for a mistrial Monday) p .,: . i t -  r ,, , i once accused him of becom-
morning because the prosecut-|j„g profane and kickin'* ti e ar- 
in g  attorney had refused to!resting officer. He has°pleaded 
seat the only two Negroes on a not guilty.
20 member.jury panel. County! Jacobson argued that Father 
Judge F. Ryan Duffy, jr„ denied Groppi was being denied his 
the motion. constitutional right to be tried

Atty. Thomas J a c o b s o n i b y  all the citizens of the corn- 
moved that a mistrial be de- munity because John I.auer- 
clarecl after an all-white jury of man, an assistant district attor- 
four women and eight-men was r.ey, had struck the only two 
selected before Duffy. Negroes on the panel.

Father Groppi, adviser to the Lauerman told Duffy that

cused of

u .opp i,  dUMb-ji io me Lauerman told Duffy that 
’ youth council, i s 'a c - t h e  trial did not raise racial 
f resisting arrest in con-questions, b u t  that the jury

neclion with an incident Aug. 
31 in the 900 block of W. North 
av. '

He was among about 30 peo­
ple arrested then for violating

would be asked only to decide 
on a criminal charge against 
Father Groppi. He said he did 
not strike the prospective ju­
rors because of their race.

Part 2 Tuesday, December 12, 1967

iro D p iA A
J

i d o i c Q  c i
County Judge F. Ryan Duffy, 

jr., declared a mistrial Monday 
in the case of Father James E. 
Groppi, charged with resisting 
arrest.

A juror, Gerald Ellingscn, 
2104 S. 92r,d st., West Allis, 
told the judge he was ill. Fa­
ther Groppi's lawyer, Atty. 
Thomas Jacobson refused t o 
agree to a trial with only 11 ju­
rors.

Because of a crowded court

M istria l
calendar Tuesday, the judge de­
clared a mistrial and adjourned 
the case to Jan. 4.

Earlier, Duffy had denied Ja­
cobson’s motion for a mistrial 
because the prosecuting attor­
ney had refused to seat the! 
o n l y  two Negroes on a 20* 
member jury panel.

Jacobson moved that a mis­
trial be declared after an all- 
white jury of four women and! 
eight men was selected before! 
Dut'fy. j

Father Groppi, adviser to the j 
NAACP youth council’, is ac­
cused of resisting arrest in con-! 
nection with an incident Aug ! 
31 in the 900 block of W. North j 
av.

He was among about 30 peo-J 
pie arrested then for violating' 
the mayor's proclamation ban-' 
n i n g nighttime marches. He! 
was participating in an open' 
housing demonstration.

Juror iii, ~
P 7,rn.f i\r;Gropoi

A’ 1 !UN 1 Ruled
A mistrial was declared Mon­

day in the circuit court case of 
Father James E. Groppi when 
one of the 12 jurors became il! 
minutes after testimony start­
ed. ■

No alternate jurors had been 
named.

F a t h e r  Groppi had been 
charged with resisting arrest.

County Judge F. Ryan Duffy 
jr., sitting as a circuit judge, 
declared the mistrial after De­
fense Atty. Thomas Jacobson 
refused to continue with only 
11 jurors.

Earlier, Duffy had denied a 
motion for a mistrial by Jacob­
son on the ground that John H. 
Lauerman, an assistant district 
attorney, had refused to seat 
the only two Negroes on a 20 
member jury panel.

Wisconsin law gives circuit 
judges the option of naming a 
13th juror as an alternate, but 
a court source called it “ highly 
unusual” to name an alternate 
in a misdemeanor case.

After declaring the' mistrial 
and rescheduling the trial for 
Jan. 4, Duffy remarked to a re­
porter: "I’ve had 150 jury trials 
since I’ve been on the bench, 
and this is the first time a juror 
has been sick.

“But next time, I’ll pick 13."
Father Groppi, adviser to the 

Milwaukee youth council, of the 
National Association f o r  the 
Advancement of Colored Peo­
ple (NAACP), was among 13-1 
persons arrested d u r i n g  an 
open housing march in the 909 
block of W. North av. on Aug. 
31.

Patrolman Wilfred G. Bucha­
nan accused the priest of kick­
ing him while he was being 
carried to a patrol wagon for 
violating a ban against night­
time marches imposed by May­
or Maicr.

Police Sgt. Frank Miller was 
being questioned by Lauerman 
when the ailing juror — Gerald 
J. Ellingson, 37. o f  2104 S. 
92nd st.. West Allis — com-, 
plained of feeling il! and asked- 
permissipn to go to a r e s  t! 
room. •I

Duffy recessed the proceed­
ings. When EMingsor, still felt'- 
ill 15 minutes later, and said he 

Turn to Page D, Cel. S

MILWAUKEE SENTE

JVU57RS f  t
s ;  V

C la im c jo : .  ’  •

D sn  io G r r r
Contlnu c d From

may have co- t r . t d  *
from his uV I •::er, F E
jclerc! the hr.-:.kd a 
[son refu ffl t<> cr.nlr: 
jurors.

In rcmio .t:::;’ .s . 
cause of ti. 
liar J:: uL .t a: •

*i»! • t •• i i l
It .• 1 i.y .



»



35a



36a

To: H ugh O’Connell 
District Attorney 
Safety Building 
Milwaukee, Wisconsin

P lease take notice that on the 8th day of February, 
1968, at 9 :00 o’clock in the forenoon, or as soon thereafter 
as counsel may be heard, we shall appear before the Honor­
able F. Ryan Duffy, Jr., Judge of the Circuit Court, in his 
courtroom, of the Milwaukee County Safety Building at 
Milwaukee, Wisconsin, and shall present the motion, true 
copy of which is attached hereto.

Dated at Milwaukee, Wisconsin, this 10th day of January, 
1968.

Notice of Motion

B arbee & Jacobson

Attorneys for Defendant 
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202



37a

Now comes the above named defendant in the above 
entitled action and moves to dismiss, and for grounds to 
dismiss says:

1. Section 956.03(3) Wisconsin Statutes is unconstitu­
tional on its face and as applied in that prejudice in the 
community is not lessened just because defendant is 
charged with a felony as opposed to a misdemeanor; the 
legal harm said statute attempts to correct is the fact 
community prejudice prevents defendant in a criminal pro­
ceeding before a jury from obtaining a fair and impartial 
trial.

2. The present matter is a misdemeanor transferred to 
the Circuit Court by the Milwaukee County District At­
torney and assigned to the Honorable F. Ryan Duffy to 
sit as an acting Circuit Court Judge.

Dated at Milwaukee, Wisconsin, this 10th day of January, 
1968.

Motion to Dismiss

B arbee & Jacobson

Attorneys for Defendant 
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202



38a

P lease take notice that on the 8th day of February, 
1968, at 9 :00 o’clock in the forenoon, or as soon thereafter 
as counsel may be heard, we shall appear before the Honor­
able F. Ryan Duffy, Jr., Judge of the Circuit Court, in his 
courtroom, of the Milwaukee County Safety Building at 
Milwaukee, Wisconsin, and shall present the motion, true 
copy of which is attached hereto.

Dated at Milwaukee, Wisconsin, this 10th day of January, 
1968.

Notice of Motion

B arbee & Jacobson

Attorneys for Defendant 
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202



39a

Now comes the above named defendant in the above 
entitled action and moves to dismiss, and for grounds to dis­
miss says:

1. The proclamation of Mayor Henry Maier dated Au­
gust 30, 1967 which foi'med the basis for defendant’s arrest 
herein is unconstitutional on its face in that it violates de­
fendant’s rights of freedom of speech, assembly, and the 
right to petition his government for a redress of grievances 
under the First and Fourteenth Amendments to the United 
States Constitution.

2. The proclamation of Mayor Henry Maier is uncon­
stitutional as applied to the defendant’s conduct, in that it 
violates defendant’s rights under the First and Fourteenth 
Amendments to the United States Constitution.

3. The proclamation of Mayor Henry Maier is unconsti­
tutional on its face and as applied in that it is vague, un­
certain and fails to establish any ascertainable standard of 
guilt contrary to the due process clause of the Fourteenth 
to the United States Constitution.

4. The proclamation of Mayor Henry Maier is unconsti­
tutional on its face and as applied in that it is overbroad 
and encompasses within its coverage activity which is 
clearly protected by the guarantees of the First Amend­
ment to the Constitution of the United States, contrary to 
the due process clause of the Fourteenth Amendment to the 
United States Constitution. The proclamation permits and 
encourages executive or judicial officials to discriminate 
against defendant by reason of racial identification or of 
political beliefs and ideas, and to intimidate and harass by

Motion to Dismiss



40a

arrest, detention, brutality, excessive bail, and prosecution 
or the threat thereof, defendant in the exercise of his rights 
of free speech, assembly, association and petitioning his 
government for redress of grievances, to express unpopular 
or unorthodox views on public issues of vital concern or to 
protest and oppose certain policies of the United States, the 
State of Wisconsin or the City of Milwaukee on vital pub- 
lice issues, contrary to the equal protection of the laws 
guaranteed by the Fourteenth Amendment to the Consti­
tution of the United States.

5. The proclamation of Mayor Henry Maier is unconsti­
tutional as applied to defendant and as applied violates 
defendant’s rights under the First and Fourteenths to the 
United States Constitution.

6. The arrest under the proclamation of Mayor Henry 
Maier is basically for the unlawful purpose of depriving 
defendant of his rights of freedom of speech, assembly, 
association and petitioning his government for a redress 
of grievances guaranteed by the First and Fourteenth 
Amendments to the United States Constitution. Further 
enforcement of the present charges based on defendant’s 
invalid arrest pursuant to the proclamation of Mayor Henry 
Maier will have the effect of punishing defendant now 
threatened with prosecution for the exercise of rights, 
privileges and immunities secured to him by the Constitu­
tion and laws of the United States; has and will deter de­
fendant from the future exercise of his rights, privileges 
and immunities; has encouraged and will encourage the 
State, County and/or local officials acting under color of 
law, to engage in further acts of intimidation, harassment, 
threats of violence, threats of arrest, and other actions

Motion to Dismiss



41a

Motion to Dismiss

meant to prevent and deter defendant from the exercise of 
his rights, privileges and immunities.

7. The arrest and attempted prosecution has been and 
is being carried on with the basic purpose and effect of 
intimidating and harassing defendant and punishing him 
for and detering him from exercise of his constitutionally 
protected rights of free speech and assembly and associa­
tion to:

1. Oppose and protest the policies of the United States 
Government, the State of Wisconsin, County of 
Milwaukee, and City of Milwaukee, with regard 
to segregation and racial discrimination against 
Negroes, including, but not limited to, discrimina­
tion in the purchase, lease, rental or sale of housing.

2. Or otherwise publicly express unpopular and un­
orthodox views on public issues of vital concern.

Dated at Milwaukee, Wisconsin, this 10th day of January, 
1968.

B arbee & Jacobson

Attorneys for Defendant 
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202



42a

Order to Show Cause

(Filed February 7, 1968)

U pon the reading and filing of the affidavit affixed hereto 
and on motion of John J. Fleming, City Attorney, by John 
F. Kitzke and Thomas E. Hays, Assistant City Attorneys,

I t  is ordered that the defendant by his attorney, Thomas 
M. Jacobson, appear before the Honorable E. Ryan Duffy, 
Jr., Judge of County Court, Branch 12, in his courtroom in 
the Safety Building, on the 7 day of February, 1968, at 4 
o’clock, P.M. or as soon thereafter as counsel can be heard 
to show cause why the subpoena heretofore issued on be­
half of the defendant and ordering the appearance of Henry 
W. Maier, Mayor of the City of Milwaukee before this 
court in the above entitled action on February 8, 1968 at 
3 :00 o’clock p.m. should not be quashed.

I t  is further ordered that a copy of this order to show 
cause and the affixed affidavit be served on the defendant’s 
counsel, Thomas M. Jacobson, 110 E. Wisconsin Avenue, 
not less than 1 hour prior to the time set for hearing.

Dated at Milwaukee, Wisconsin, this 7 day of February, 
1968.

By the  Court,

F. R yan D u ffy , Jr.
F. Ryan Duffy, Jr., Judge.



43 a

Affidavit of Henry W . Maier

State of W isconsin,
Milwaukee County, ss. :

Henry W. M aier, being first duly sworn on oath, deposes 
and says:

1. That at all times herein mentioned he was and is the 
Mayor of the City of Milwaukee.

2. That at approximately 9:15 a.m., February 7, 1968, 
he was served with a subpoena to appear before the Judge 
of County Court, Branch 12, on February 8, 1968, at 3:00 
o’clock p.m. in the above entitled action.

3. That on information and belief such action consti­
tutes a prosecution by the State of Wisconsin of the de­
fendant for violation of Section 946.41 of the Wisconsin 
Statutes (resisting or obstructing an officer) and that such 
alleged offense took place on the 31st day of August, 1967, 
at approximately 8:40 o’clock p.m. at or about North 9th 
Street and West North Avenue in the city and county of 
Milwaukee, State of Wisconsin.

4. That the affiant was nowhere in the vicinity of the 
aforesaid arrest at or about said time and has no personal 
knowledge whatsoever of any of the facts or circumstances 
surrounding the same.

5. That the affiant verily believes that there are no facts 
or information within his knowledge to which he could 
testify or in anyway assist the Court in arriving at its 
decision.



44a

6. That the affiant is engaged in many and sundry mat­
ters of great importance to the citizens, taxpayers and 
general public of the City of Milwaukee in his capacity as 
Mayor and it is for that reason this affidavit is made for 
the purpose of obtaining an order to show cause why the 
aforementioned subpoena should not be quashed.

H enry W . M aier 
Henry W. Maier

Affidavit of Henry W. Maier

Subscribed and sworn to before me 
this 7th day of February, 1968.

(Illegible)
Notary Public, Milwaukee County, Wis. 
My commission expires: January 25, 1970.

Exhibit Annexed to Order to Show Cause 

(See Opposite)



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45a



46a

Exhibit Annexed to Order to Show Cause

P r o c l a m a t io n

W hereas, on the night of August 28, 1967, disturbances 
occurred in the City of Milwaukee arising out of certain 
parades, marches and demonstrations within the City of 
Milwaukee; and

W hereas, on Tuesday, August 29, 1967, further dis­
turbances existed within the City of Milwaukee resulting 
from parades, marches and demonstrations; and

W hereas, the foregoing have resulted in civil commotion 
and disturbance detrimental to the maintenance of public 
order endangering life, damaging property, impairing 
transportation and interfering with police and fire protec­
tion and other vital services of the City of Milwaukee; and

W hereas, such disturbances are likely to continue and 
present an increasing and imminent danger to the public 
health, safety and welfare of the City of Milwaukee;

Now, t h e r e f o r e , pursuant to the power vested in me by 
the Laws of the State of Wisconsin and the Ordinances of 
the City of Milwaukee, and upon finding that an emergency 
exists within the City of Milwaukee and will continue to 
exist therein presenting a clear and present danger to 
the health, safety, welfare and good order of the citizens 
of the City of Milwaukee and their property, and a reason­
able limitation upon marches, demonstrations, parades and 
other similar activities is necessary and expedient;



47a

Exhibit Annexed to Order to Show Cause 

I Do H ereby Proclaim and Order as F ollows:

1. That marches, parades, demonstrations, or other 
similar activities are prohibited upon all public highways, 
sidewalks, streets, alleys, parks and all other public ways 
and public gi ounds within the City of Milwaukee between 
the hours of 4 :00 o’clock P.M. and 9 :00 o’clock A.M., com­
mencing on this date, Wednesday, August 30, 1967, at 4:00 
o’clock P.M. and terminating thirty (30) days thereafter.

2. Any person violating any provisions of this order 
and proclamation shall be subject to arrest and prosecu­
tion, and upon conviction thereof, shall be subject to the 
penalties provided by law.

And I do hereby direct that a copy of this order and 
proclamation be filed as a public record in the office of the 
City Clerk of the City of Milwaukee.

Dated at Milwaukee, Wisconsin, this 30th day of August 
1967, at 2 :52 o’clock P.M.

H enry W. M aier, 
Mayor



48a

Certification

CITY OF MILWAUKEE 
Office of the City Clerk 

ROOM 205, CITY HALL, MILWAUKEE, WISCONSIN 53202
Phone: 276-3711 Ext. 2221

Ray Markey 
City Clerk

Chester P. Schmidt 
Deputy City Clerk

February 7, 1968

I hereby certify that the attached is a copy of the Procla­
mation issued by His Honor Henry W. Maier, Mayor of 
the City of Milwaukee on August 30, 1967.

R ay M arkey 
City Clerk



49a

Defendant’s Requested Instructions

I. Resisting or obstructing an officer is defined by section 
946.41 Wis. Stats. 1967. It is a separate offense from 
the mayor’s proclamation violation for which the de­
fendant was initially placed under arrest. No inferences 
as to defendant’s guilt or innocence on the resisting 
charge should be drawn from the mere fact defendant 
was placed under arrest for violating the mayor’s proc­
lamation. Both offenses are separate and distinct from 
the other and each has its own set of elements which 
must be proved in order to constitute a violation thereof. 
You are instructed in this case to disregard defendant’s 
arrest for the mayor’s proclamation and decide the 
guilt or innocence of the defendant solely on the facts 
pertinent to the resisting arrest charge.



50a

Verdict

We, the Jury, find the defendant, James E dmund Groppi, 
guilty in manner and form as charged in the complaint.

Dated this 9 day of Feb., A.D., 1968.
C. J. M uck 

Foreman or Forelady



51a

Order of the Court, Providing Probation, Etc.

At a regular term of the County Court, Misdemeanor 
Division, held at the City of Milwaukee, in the County of 
Milwaukee, State of Wisconsin, the defendant James Ed­
mund Groppi was convicted of the offense of Resisting an 
Officer and

It appears to the satisfaction of the Court that the de­
fendant shall not suffer the penalty provided by law ;

It is Ordered and Adjudged:

1st. That the sentence in this case is hereby suspended 
and execution stayed for the full term of 6 months House 
of Correction—stayed 2 yrs. probation, subject to the 
provisions of the Laws of this state, the rules and orders 
of the Court, and such conditions of probation as were 
ordered in this case by the Court, including—

2nd. That the defendant is hereby placed on probation 
for a term of 6 months House of Correction— stayed 2 
years probation & costs.

It is Further Ordered. That this order be forthwith filed 
and recorded in the office of the clerk of this Court.

And in addition thereto— sentenced to pay a fine of 500 
dollars and costs or 6 months House of Correction in default 
of payment. Fine and costs to be paid in 24 hours.

Dated at Milwaukee, Wisconsin, this 12 day of February, 
1968.

By the Court,
F. R yan  D uffy , Je.

Acting Circuit Court Judge. 
Branch 12



52a

Comes now the defendant in the above-entitled action 
by his attorney, Thomas M. Jacobson, and, upon all of 
the files, records and proceedings heretofore had herein, 
respectfully moves this Court for the entry of an order 
setting aside the jury verdict of guilty and entering a 
verdict of not guilty, or in the alternative granting to the 
defendant a new trial, and

As grounds therefor respectfully shows to the court:

1. That the trial court erred in denying the defendant’s 
Motion for Change of Venue on the ground of community 
prejudice; said motion was denied on the ground that the 
statute applied only to felony cases.

2. That §956.03 (3) Wis Stat. is unconstitutional in that 
it denies to a defendant who is charged with a misdemeanor 
offense a fair trial as required by the Fourteenth Amend­
ment of the United States Constitution.

3. That the trial court erred in refusing to accept the 
defendant’s affidavit of prejudice filed against the court 
sitting as an acting Circuit Court judge.

4. That the trial court erred in quashing the defen­
dant’s subpoena upon Henry W. Maier, Mayor of the City 
of Milwaukee, whose testimony was material to the defense.

5. The trial court erred in precluding the defendant 
from introducing evidence upon the trial that the Mayor’s 
proclamation, as applied to the defendant, was unconsti­

Motion After Verdict



Motion After Verdict

tutional; said defendant’s arrest was made for a violation 
of such proclamation.

6. That the trial court erred in admitting, over defen­
dant’s objection, prejudicial evidence of other crimes:

a. Evidence was introduced upon the trial of the de­
fendant’s alleged use of profanity directed toward 
the arresting officers.

b. Evidence was introduced upon the trial concerning 
the defendant’s arrest for his alleged violation of 
the Mayor’s proclamation.

c. Evidence was introduced upon the trial relating to 
the conduct o f the defendant in going “ limp” after 
his arrest, said conduct was not the basis of his 
being charged with resisting arrest.

7. That the evidence adduced upon the trial was not 
sufficient to support the jury verdict.

8. That the trial court erred in admitting in evidence, 
over the defendant’s objection, incompetent and immaterial 
testimony.

9. That the jury verdict of guilty was based on incom­
petent evidence and the finding of guilty was based on evi­
dence that did not pertain to the charge for which the de­
fendant was on trial. (See exhibit A  attached hereto.)



54a

Motion After Verdict

10. That a new trial should be granted in the interest of 
justice.

Dated at Milwaukee, Wisconsin this 12th day of Feb­
ruary, 1968.

Respectfully submitted,

F r. James E. Croppi, Defendant 

B y :

T homas M. J acobson 
Thomas M. Jacobson

Counsel for Defendant

Exhibit Annexed to Motion

(See Opposite) H®"



From page 1

Groppi’s attorney, asked that 
the jury be polled. Each juror 
confirmed the decision. .
■ Before the jury returned its 

verdict, Duffy told about 30 
courtroom spectators: “ What­
ever the decision, I want deco­
rum in the court on the part of 
everyone.”

M a n y  of the spectators 
were members of the Milwau- 
k e e  NAACP youth council, 
sponsors of the open housing 
demonstrations. Father Groppi 
is the council’s adviser.

Police in Court
Police officers w e r e  sta­

tioned in the courtroom and in 
the corridor outside.

Youth council members sur­
rounded Father Groppi after 
the verdict and walked with 
him from the courtroom on

the sixth floor of the safety 
building. Me was released 
without bail.

Father Groppi was arrested 
Aug. 31 when he led a march 
in defiance of Mayor Maicr’s 
proclamation prohibiting dem­
onstrations in the city. The 
ban was lifted two days later.

Father Groppi said that at 
the time of his arrest he was 
going to city hall to question 
Maier about the constitution­
ality of the ban on marches.

Arrests Are Listed
When police seized him, Fa- 

t h e r Groppi said, he went 
limp.

Father Groppi has an arrest 
record dating to 1965. Court 
files included the following:

June 4, 1935, standing on a 
highway and interfering with 
traffic, found guilty and fined 
$10; Dec. 7, 1965, disorderly

' conduct, found g u i l t y  and 
j fined $100 and costs; May 6, 
1967, resisting an officer and 

| obstructing an officer, found 
J guilty of obstructing and not 
| guilty of resisting, fined $100 
: and costs; July 31, 1937, disor- 
• dcrly conduct, charge amend­
ed to violation of M a i c r ’s 

| emergency resolution, found 
guilty, appeal pending; Aug. 
31, 1967, violation of mayor’s 
proclamation banning demon­
strations and disorderly con­
duct, court action pending; 
Se p t .  1, 1967, violation of 
of mayor’s proclamation, court 
action pending.

jury DJ L /  w- A Cti C - t'J

^ sister!-1
roppi

Policesmen
A circuit court jury found 

Father James E. Groppi guilty 
. Friday of resisting arrest dur­

ing a n open housing march 
here last summer.

Police testified during a one 
and a half day trial that the 
Catholic priest kicked a n d  
cursed them when they took 
him into custody. He denied 
resisting or cursing. . .

Father Groppi faces a pos­
sible maximum penalty of a 
year in county jail, a $500 fine 
or both. County Judge F. 
Ryan Duffy, jr., who sat as a 
circuit judge in 'hearing the 
case, set Monday for hearing 
motions and possible sentenc­
ing.

The jury of nine men and 
three women deliberated 2 
hours and 35 minutes before 
returning the verd'et ?.t 4:45 
p .m. Father Gropp: frowned 
when it was read.

Priest “ Isn’ t Surprised”

i that jury or any other jury. I 
w a s respected on that jury 
and made my decision in ac­
cord with my intellect, not my 
emotions.”

Palmer said he felt "sympa­
thy for the man” but that Fa- 
t h e r  Groppi had convicted 

! himself. He said Father Groppi 
i had admitted on the witness 
• stand that he had gone limp 
| when police tried t o arrest 
i him.
! “ Sitting down is a passive 
i resistance,” Palmer said, 
i After the \erdict was given, 
iThomas J a c o b s o n ,  Father 
| Turn to Groppi, page 8, col. 6

Asked by a reporter to com­
ment, F a t h e r  Gropp: said: 
“ Mississippi. It’s no surprise 
to me. T h i s  happens every 
time we come in here. You got 
11 white jurors and 1 ‘yassuh 
black.' ”  I

F'ather Groppi obviously re­
ferred to the one Negro juror, 
W i 11 i a m Palmer, 722 W. 
Brown st. Palmer heard Fritter 
Groppi’s comment on a televi­
sion news report Friday night 
a n d  called The Milwaukee 
Journal. l ie  told a reporter 
that he did not like Father 
Grogni’s statement.

“ I wasn’ t a ‘ye:.’ man o.t -





55a



56a

Notice of Appeal

STATE OF WISCONSIN 
Circuit Court— M ilwaukee County

State of W isconsin,

v .

Plaintiff,

Fr. James E. Groppi,
Defendant.

To:
F rancis X. M cCormack, E sq.
Clerk of Court
Milwaukee County
Milwaukee, Wisconsin

H ugh R. O’Connell, E sq.
District Attorney
Milwaukee County
Milwaukee, Wisconsin

P lease take notice that the defendant in the above- 
entitled action, by his attorney, Thomas M. Jacobson, 
hereby appeals to the Supreme Court of the State of Wis­
consin from the judgment of conviction and the sentence 
imposed upon him in the above-entitled action by the Hon­
orable F. Ryan Duffy, Jr., on the twelfth day of February, 
1968.

Dated at Milwaukee, Wisconsin this 12th day of Feb­
ruary, 1968.

F r. James E . Groppi,
Defendant
By :
T homas M. Jacobson

Thomas M. Jacobson 
Counsel for Defendant



57a

Charge : R esisting an Officer

T rial in the above entitled action, held on February 7th, 
8th and 9th, 1968 in Circuit Court, before the H onorable 
F. R yan Duffy , J r ., Acting Circuit Judge, presiding.

A ppearances:

John Lauerman—Assistant District Attorney, appearing 
for the State of Wisconsin.

Thomas M. Jacobson—Attorney for Defendant. 
Defendant in Court.

James J. Thurber—Acting Official Reporter.

[2 ]  Proceedings 

February 7th, 1968.

J ohn F. K itzke— appearing specially for the Honorable 
Henry Maier—Mayor of the City of Milwaukee.

Mr. Kitzke: I have the original order to show cause, 
which I would like to tile, showing service.

The Court: Hello gentlemen, before us we have the State 
of Wisconsin, Plaintiff, versus James Edmund Groppi, 
Defendant, case number— Circuit Case Number G-4718, 
which is an order to show cause, and an affidavit attached 
thereto, returnable by 4 o’clock this afternoon. On an order 
to show cause, why the subpoena, issued heretofore on 
behalf of Henry Maier, Mayor of the City of Milwaukee, 
for this Court, above entitled, on February 8th, 1968 at 3 
o’clock, could not be quashed.

Mr. Kitzke: That was the time on the subpoena, Your 
Honor, yes sir.

Transcript of Testimony

[ 1 ]



58a

The Court: So you’re the moving party?
Mr. Kitzke: I am John F. Kitzke, representing the City 

of Milwaukee.
The Court: Do you have a statement to make, at this 

time?
Mr. Kitzke: I am representing the Mayor, Your Honor. 

We are at a complete loss, what if anything, could require 
the presence of the Mayor before the Court. Since [31 there 
is nothing he can add, or assist the Court in, in the trial of 
this case tomorrow. The charge as we understand it, from 
looking at the record, is a violation of Section 946.41 of 
the Wisconsin Statutes, entitled, Resisting or Obstructing 
an Officer, we believe, on the information and belief, that 
the incident involved, which took place on the 31st day of 
August, 1967, at approximately 8 :40 p.m., at or about North 
9th and West North Avenue, in the City and County of 
Milwaukee, State of Wisconsin, the affidavit of the Mayor 
clearly indicates that he was no where near the incident, or 
scene of this incident, he did not see it, and he knows of no 
facts of his knowledge, which in any way would add to, or 
subtract from the case to come before the Court tomorrow 
morning. The only thing we can presume here, is that 
someone is going to attempt to harass the Mayor, and in­
quire into his executive authority in issuing a curfew order 
on August the 30th, 1967. Now the law is clear, that what­
ever law is violated, gives no party, no party the right to 
resist, and the trial before this Court tomorrow, will not 
be on any constitutionality, or validity of the curfew, or 
proclamation, but will be solely whether the defendant did, 
or did not resist. Now it is clear in the law, so clear that it 
is difficult to find citations, because it is so universally ac­
cepted that a person arrested cannot question the previous 
law. [4 ] In the question of resisting, we cite, 21 Am Jur 2d 95,

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59a

in which it stated, that a legislative act is presumed proper 
and constitutional until such time as a Court determines 
otherwise, this cannot be determined in the resisting case. 
In Warren v. United States, 177 F2d 596, the Court clearly 
ruled that one may not disobey the law, even if in good 
faith they may believe it to be unconstitutional. In State 
v. Carroll, 38 Conn. 449, there is a clear definition of the 
problem we have before the Court. The American Report, 
409, at page 428, said, every law of the legislature however 
repugnant to the constitution, has not only the appearance 
and semblance of authority, but the force of law, it cannot 
he questioned at the bar of private— of private judgment, 
and if thought unconstitutional cannot be resisted, but it 
must be received and obeyed as to all intents and purposes 
until the law is questioned and set aside by the Courts. 
This principle is essential to the very existence of order and 
society, and let us just visualize Your Honor, the complete 
ridiculousness, if anyone could violate the law, because in 
their own mind, because they felt it wasn’t constitutional, 
say a man goes through a stop sign, and says, I am sorry, 
you cannot arrest me, and I am going to resist, if because 
I don’t think that law is constitutional, now obviously this 
is not the law, obviously if you want to question the constitu­
tionality of a law, you do it by [5 ] proper judicial process, 
and not by resisting, and this Court will not have to deter­
mine, nor can they be asked to determine the constitu­
tionality of the curfew order, or the proclamation, this is 
being questioned and tried in other courts. I point out to 
the Court this is so well recognized as pointed out by the 
Connecticut case, it almost needs no citation, I have previ­
ously pointed out by the affidavit of the Mayor, he was not 
at 9th and North Avenue, he saw nothing, or heard nothing, 
which would add to the testimony before this Court and

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60a

what happened. Now when we turn to the power of sub­
poena, certainly this power is within the Court, within the 
power of the Court, and the Court is able to quash that sub­
poena, where the Judge has not issued it, on a basis shown, 
that it was necessary, but rather under our process, an at­
torney has, an attorney has issued the subpoena. We must 
never forget the separation of power between the executive 
branch and the Court. It is not the Court’s prerogative to 
inquire into the thinking or judgment, the background in 
an action of an executive, and we believe that the only 
objective in this subpoena Your Honor, is to attempt to 
harass the Mayor, and to take him from his very important 
duties to the citizens of this community, and I defy the 
defendants to show one fact, that the Mayor observed, or 
could be questioned on anything other than a witch hunt, 
to try to attack his thinking and [6 ] judgment in issuing the 
curfew, and this I don’t believe even the Court has a right 
to inquire into. In 85 Pa. State, 433, this special question 
was considered as to a governor, and not wanting to quote 
a very long case Your Honor, I would just like to take one 
very important statement of that Court, the Court should 
have been formed before it undertook to interfere with the 
personal liberty of the citizen, by his summary process of 
his attachment, or subpoena, the matter was sustained, now 
it is apparent that the subpoena was issued for no tangible 
cause to the party, and no properly legal purpose, hence, 
no one was bound to obey it. Now the Mayor, of course, is 
not going to disobey the subpoena of this Court, but he 
certainly has the right to come to this Court and ask the 
Court to quash this subpoena, and he should not be forced 
to sit here for no purpose at all. Further in that case at 
page 672, the Court said, we better at the outstart recog­
nize the status of the executive branch, which is a coordinate

Transcript of Testimony



6 1 a

branch of the government, with the power to exercise what 
should, or should not be done within its own department, 
and with it in the exercise of these constitutional powers, 
the Court said, they have no more right to interfere than 
the executive branch, under like conditions, to interfere 
with the Courts, and this Court, of course, will not interfere 
with the executive’s branch, with the Mayor, unless good 
[7] cause is shown, that the subpoena should exist, and that 
the Mayor be called upon.

The Court: So you’re moving that the subpoena be 
quashed?

Mr. Kitzke: Yes, sir, I am.
The Court: On this basis, on the order to show cause 

and affidavit?
Mr. Kitzke: Yes, sir.
Mr. Jacobson: Your Honor, Counsel would object to 

Plaintiff’s Counsel, or in this matter, the Mayor’s Counsel, 
determining or describing the action, on the part of De­
fendant’s Counsel in subpoenaing witnesses in criminal 
trials, for no other purpose than harassment, I believe it 
improper argument. At this juncture, it is whether or not 
the issuance of a subpoena and a calling of a material wit­
ness, as far as the defendant is concerned, and is concerned 
presently, without the Court having benefit of the presence 
of the person so subpoenaed, and the benefit of the elicita­
tion of certain facts on that witness, on part of the Counsel 
who subpoenaed that Avitness, any type of attempt to 
categorize the subpoenaing of a witness in a criminal trial, 
and term it to be as harassment, I think is improper argu­
ment, and I think it is very dangerous Your Honor in that, 
in a criminal trial, we are talking about a defendant’s 
constitutional rights, and the opportunity [8 ] to have due 
process, and full opportunity to develop defense on his

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62a

behalf, and to allow the inferences of subpoenaing, to be 
for no other purposes than of harassment, I think it is 
very dangerous in a free society. I don’t think we want 
that kind of situation to develop in this community, where 
we are going to protect certain people becoming material, 
material witnesses in cases, on speculation that they are 
being called for witnesses for no other purposes than for 
harassment. On the specific argument that is proper, and 
that is the actual law that is applicable in this particular 
case, and the reason for the subpoenaing of the Mayor as a 
witness in this matter, as the Court knows we have a mo­
tion that is pending which will be argued tomorrow, prior 
to impaneling the jury, which goes to the validity of the 
Mayor’s proclamation, both on its face and as applied, that 
proclamation upon my information and belief is the basis 
for the arrest of the defendant, and then it was in the 
course of effectuating that arrest, and carrying out that 
arrest the alleged resisting took place. Now Counsel for 
the Mayor is—has not cited any Wisconsin authority, on 
the position that in fact, a person cannot resist an in­
valid arrest, and the citations that Counsel had prepared 
and presented to the Court, if the Court deems that that 
is an issue, and that it would be upon the correctness of 
the proclamation in fact being an issue in this case, whether 
[9 ] or not the Mayor was a material witness, if the Court 
decides that it wants argument on whether that is an 
issue or not, I would ask we have time to brief that ques­
tion, because it becomes fundamental to the case that will 
be heard by the jury tomorrow. As far as Counsel under­
stands of the law at the present time, that in fact, an 
invalid arrest would nullify any resisting, if it was proved 
if there was resisting, and I would ask the Courts leave to 
brief that question, prior to the Court ruling whether or

Transcript of Testimony



63a

not the Mayor ought to be a witness in this case or not. 
It’s Counsel’s understanding of the law that in fact, if 
the proclamation is invalid, then the arrest is no good, and 
then if it should be proved it was resisting, which of course 
is denied by the defendant, if there should be resisting, 
even so resisting an invalid arrest is not a crime, and we 
have some authority, at this time we would like more time 
to research.

The Court: You already have a motion on the constitu­
tionality on file with this Court, which I will rule on, 9 
o’clock, prior to the trial, is that correct?

Mr. Jacobson: That is correct, Your Honor. Now, as 
to, if the understanding o f Counsel’s correctness to the law, 
on the matter of whether or not resisting an invalid 
arrest then is not a crime, the Mayor’s testimony becomes 
crucial, and he does become a material witness in [10] this 
proceeding, and in that only the Mayor can testify as to 
the conditions which led the Mayor to invoke his emergency 
powers in the form of the proclamation, which the defend­
ant is alleged to have violated, which forms the basis of 
the arrest, and subsequent resisting, only the Mayor would 
have the facts available and testify those into the record, 
those facts only the Mayor would know, what condition 
existed in the City o f Milwaukee, which he believed con­
stituted an emergency, which enabled him to invoke the 
emergency powers of the Mayor, in the form of the proc­
lamation, and of course, it is for that reason that Defense 
Counsel subpoenaed the Mayor. Again Counsel cannot 
object too strenuously to the Counsel of the Mayor, in 
describing that kind of strategy, that subpoenaing the 
Mayor was for no other purpose, except for the purposes 
of harassment. I believe that degenerates the role of 
Counsel, and the proper type of argument that should be 
put forward in the case that has the ramifications of a

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64a

case of this nature. As a result of this Mayor’s proclama­
tion, hundreds of our citizens in this community was 
charged with various offenses. It seems to me it is fair 
game if the Mayor issues a proclamation that he ought to 
stand behind that proclamation, and be subject to subpoena 
to testify the basis for that proclamation.

The Court: All right, any further in rebuttal?
[11] Mr. Kitzke: Counsel in support cites no citations, not 

only none from Wisconsin, but none at all. What the May­
or’s thinking was, in making the proclamation is no wise 
material in any way, to a resisting arrest charge. Number 
one, once a law is on the books, it is presumed valid and con­
stitutional, and being so presumed, even if subsequently 
said, in judicial procedure it was not constitutional, the citi­
zen must obey it at that time, because it is on the books. 
Now, Counsel secondly stated, that he is going to try before 
this Court the non-constitutionality of the proclamation, 
which is not a part of the resisting charge, while at the same 
time, he has an action pending in the Federal Court, and he 
claims that by virtue of the action in the Federal Court, 
no charges should be brought in the State Court, on the 
question of the proclamation, with the Federal Court rules. 
So he is saying that the City should not move on the procla­
mation, on one side, because there is a Federal Court Ac­
tion, but he has a perfect right to act, to move on the other 
side, in a totally unrelated case.

Mr. Jacobson: I informed Mr. John Lauerman, who is 
now sitting in this Court, I called before the issuance of 
the subpoena in question, I informed Mr. Lauerman it was 
Counsel’s intent, if the District Attorney’s office was going to 
continue in prosecution of this case, prior [12] to the deter­
mination in Federal Court, of the validity of the Mayor’s 
proclamation, which was invoked, that we would have no

Transcript of Testimony



65a

alternative but to subpoena the Mayor, and to try the 
validity of the proclamation in this Court, but I informed 
Mr. Lauerman, he ought to tell Hugh O’Connell, the Dis­
trict Attorney for Milwaukee County, and to give us an 
opportunity to come in Court for the very reasons that 
Mr. Kitzke has set forth, we, having asked that all prose­
cutions, based on the proclamation be delayed until the 
Federal Court has in fact ruled on the validity, the consti­
tutionality, the answer that came back from Mr. Lauer­
man—

Mr. Kitzke: Let’s talk about the facts, the District At­
torney does not represent the Mayor of the City of Mil­
waukee, we represent the Mayor of the City of Milwaukee, 
he doesn’t have to be subpoenaed because you think that 
maybe sometime if the Court rules that you can go behind 
the resisting, to the initial law, you might some day, five 
days from now, you can delve into his thinking, as to his 
exclusive function, in issuing that order, and not properly 
reviewable, and as to his thinking, the law is basic, the 
resisting arrest has nothing to do with the law under which 
the man was arrested, you must obey an existing law, if 
you don’t think it constitutional, you go to Court and 
change it, you don’t punch the officer [13] in the nose.

The Court: I will reserve a decision to quash the sub­
poena, until after my ruling at 9 o’clock tomorrow.

Mr. Kitzke: The Federal Court asked Counsel on both 
sides, Mr. Jacobson and the City, to take no action in any 
other Court, relative to the constitutionality of this proc­
lamation, until the Federal Court ruled. We wouldn’t want 
to be in a position where we are breaching our position 
with the Federal Court, and we insist that it is not a ques­
tion of ruling of constitutionality, but a question whether 
that can ever be questioned.

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66a

Mr. Jacobson: That is the position of the Defense Coun­
sel, it is precisely as the City Attorney’s position, we 
understand the Federal Court asked that no action be taken 
on the proclamation until they have had an opportunity 
to rule on it. We have informed the District Attorney’s 
office of that fact, we would like this put off until after the 
determination in Federal Court, and that is still pending.

The Court: There are some motions on file. I will rule 
on them, as well as this order to show cause, and affidavit 
to quash.

Mr. Kitzke: 9 o’clock, Your Honor?
The Court: 9 o’clock sharp.

Transcript of Testimony

[14] P roceedings

February 8th, 1968.
A ppearances :

(Same as above noted).

( I n  Camera)

The Court: All the parties here, that need to be here? 
Mr. Lauerman: Yes, Your Honor.
The Court: In the matter of the State of Wisconsin, 

Plaintiff v. James Edmund Groppi, Defendant, Circuit 
Case Number G-4718, wherein this Court has been ap­
pointed to hear the matter, as a Circuit Court Judge, there 
were three motions scheduled for ruling this morning. 
Firstly—I might add, these motions, and decisions of mo­
tions, and rulings of motions, are heard in chambers, be­
cause the jury panel is so extensive out in the courtroom, 
it is impractical for them to leave into the corridors, and 
this should be heard outside of their presence. Firstly,



67a

there is a motion filed by the Defendant’s Defense Counsel, 
Mr. Jacobson, to dismiss on behalf of the Defendant, James 
Edmund Groppi, on the grounds that the Mayor’s procla­
mation is unconstitutional. That is the first motion to be 
ruled on this morning.

Mr. Jacobson: I f  it please the Court, at this time I am 
withdrawing the motion, the question of the validity and 
constitutionality of the proclamation is now [15] pending in 
Federal Court, and that is the proper form wherein that 
determination should be made. I would like to say this, 
Your Honor, at this time, there is a matter of a subpoena 
on the Mayor of the City of Milwaukee, the determination 
by this Court as to whether or not that subpoena is going 
to be honored, or whether it should be quashed. The pur­
pose of the bringing of the subpoena on the Mayor was 
to have the Mayor be called as a witness on behalf of the 
defendant, and to elicit from the Mayor testimony regard­
ing the issuance of the proclamation, which formed the 
basis for the defendant’s arrest in this matter, on August 
31, 1967, and then on the basis of those facts, the defense 
would have brought a motion that the proclamation, the 
emergency powers as applied to this defendant was un­
constitutional. Now, yesterday, when Counsel argued the 
matter of the priority of the defense of this matter, resist­
ing an unlawful arrest, did not cite any cases. Just to make 
the record complete, a case, Nathaniel Wright v. State of 
Georgia, a decision in 1963, citations, 373 US 284, 10 Law­
yer’s Edition, 2d Page 349, 83 Supreme Court, 1240, quote, 
and I have the Lawyer’s Edition case Your Honor, that 
would be on 10 Lawyer’s Edition 355, where I am now 
quoting the language of the United States Supreme Court—

The Court: Well, let’s—

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68a

[16] Mr. Jacobson: The gist of the decision, I won’t read 
the language, it is just to the fact, the fact, resisting an un­
lawful arrest is not a crime, and I have another case, City 
of Columbus v. Julia Holmes, a decision from the Court 
of Appeals from the State of Ohio, 169 Ohio, 25, lo2 n.e. 
Section 301. I did have an opportunity to take a look at 
the cases that were cited by the City Attorney, their cases 
were from the late 1800’s. The case that is most recent is 
Wright v. Georgia Case, Supreme Court, in a case similar 
to this one, some Civil Rights demonstrations, found that 
resisting an unlawful arrest, was not a crime. So Your 
Honor, in summary, at this time we are not going to pro­
ceed with the argument on the constitutionality of the 
proclamation, in that it is in Federal Court, and should be 
settled there. However, we would ask the Court to rule on 
the subpoena on the Mayor, for the reasons we indicated, 
the facts, we have reason to believe this would put in issue 
the constitutionality of the proclamation, which was applied, 
and further, then if that was ruled unconstitutional by the 
Court, the issue of whether or not resisting an unlawful 
arrest, then would be a matter, would be decided on, based 
on the authority that we have presented to this Court. We 
believe the cases hold, that one cannot be found guilty on 
an unlawful arrest.

Mr. Kitzke: I think Counsel is referring to [17] cases in 
which, the arrest by the officer, may have been declared 
unlawful because the officer did not observe, or have suf­
ficient facts on which to make an arrest. This is distinctly 
different than a claim of an unlawful arrest based on the 
unconstitutionality of the proclamation, or law. As a mat­
ter of law, it is presumed constitutional until such time a 
Court of proper jurisdiction rules it unconstitutional, and 
a officer has a right and must rely on the face o f the law in

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69a

any statute book, ordinance book, or any proclamation, be­
cause it is his duty, and it is incumbent upon him to en­
force an arrest under every law of the ordinance of the 
City, or proclamation of the Mayor, where it is understood 
neither the officer, or the person being arrested has the 
right to make their own judgments at that point as to the 
constitutionality of that law. Therefore, why he Mayor 
put the proclamation into effect, or what facts he had in his 
mind, or observations, or information, has nothing to do 
with the resisting case. The only thing that you have the 
right to show, is the facts that occurred on the street, why 
the officer made the arrest, and whether there was a resist­
ing, what happened in the Mayor’s mind prior to the is­
suance of the proclamation, is not relevant. Now they are 
not even questioning its constitutionality, that motion is 
not going to be even heard.

The Court: Here is my rulings as follows. Firstly, [18] the 
motion to dismiss on the part of the Defense Counsel Mr. 
Jacobson, on behalf of the Defendant James Edmund 
Groppi, on the grounds that the Mayor’s proclamation is 
unconstitutional has been withdrawn. The Court therefore 
will need to have no ruling on that. Secondly, there being 
no constitutional questions o f law in that regard, the sub­
poena issued on behalf of the defendant, ordering the 
appearance of the Honorable Henry Maier, Mayor of the 
City of Milwaukee before this Court on February 8th, 1968 
at 3 o’clock, is hereby quashed. Thirdly, the motion to dis­
miss on the grounds o f Section 956.03 (3) that it is uncon­
stitutional, is before the Court for ruling this morning, as 
a Circuit Court Judge, and that is denied. Plead the case 
on its merits.

Mr. Jacobson: On that last motion Your Honor, to make 
this sure for the record, they had a—

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70a

The Court: The prior—
Mr. Jacobson: The basis for this particular motion, the 

Court denied a change of venue, because of community 
prejudice, and the rationale of the Court was that the stat­
ute only provided a change of venue to community felonies, 
and not in misdemeanors.

The Court: That’s right.
Mr. Jacobson: Therefore at this time the Defense Counsel 

on behalf of the Defendant, has challenged the [19] consti­
tutionality of the change of venue, to community prejudice 
statute, on the basis that it is a denial of equal protection 
to criminals, or alleged criminals, on a basis of a serious 
line of demarcation, of one year, that is what separates a 
misdemeanor from a felony. However we have an infrac­
tion of fundamental rights at issue, and that, that statute 
has really no foundation, so we are attacking it on that 
basis, of equal protection.

The Court: My motion to dismiss is on the grounds that 
it is a matter for the legislature, and not the Courts, so 
the motion to dismiss on the change of venue, on the grounds 
that section is unconstitutional, because it provides for a 
change of venue, is denied. Now, that we have all these 
motions disposed of, we will proceed on this case, on its 
merits, and we A\Till proceed to select a jury.

(In Open Court.)

The Court: Do both sides want the complaint read in its 
entirety, or just the body?

Mr. Jacobson: Your Honor, I think the entire complaint, 
please.

The Court: Ladies and Gentlemen of the Jury, this is a 
criminal complaint, State o f Wisconsin, Milwaukee County, 
in the County Court Misdemeanor Branch. State of Wis­

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71a

consin, Plaintiff, against James Edmund Groppi, the [20] 
Defendant. Complaint for resisting an officer, in the State of 
Wisconsin, through the Sheriff, Constable, or any police 
officer of the City of Milwaukee. On the State Case Number 
2-63208, whereas Wfilfred Buchanan, being first duly sworn 
on oath, states to the Honorable John J. Kinney, as Magis­
trate, that James Edmund Groppi, the above named defen­
dant, on the 31st day of August, 1967, in the County of 
Milwaukee, Wisconsin, did unlawfully, knowingly, resist 
Wilfred Buchanan, a duly appointed and qualified, and act­
ing police officer of the City o f Milwaukee, in said County, 
while the said Wilfred Buchanan was then and there en­
gaged in doing an act in his official capacity, and with law­
ful authority, to-wit: said Wilfred Buchanan personally 
observed said Defendant resist Buchanan, at 900 West 
North Avenue, in the City of Milwaukee, in said County, 
to-wit: while said defendant was being carried to a police 
wagon, after being placed under arrest, said defendant be­
gan kicking his legs, striking said officer, Wilfred Buchanan 
in the body with his foot, that said defendant then states to 
Wilfred Buchanan, “you fuckin’ son-of-a-bitch, I want your 
number” . “ Contrary to Section 946.41 of the Statutes, and 
against peace and dignity of the State of Wisconsin, and 
prays that the said James Edmund Groppi, may be arrested 
and dealt with, according to law, signed Wilfred Buchanan, 
subscribed and sworn to before me this [21] 1st day of Sep­
tember, A.D., 1967, Magistrate John J. Kinney, I hereby find 
and determine, that there is probable cause for the issuance 
of a warrant in the above matter, Magistrate John J. 
Kinney.

(Jury impaneled.)

The Court: All the other jurors that do not have to sit 
on this particular case, are to report to the fifth floor,

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72a

Circuit Clerk’s Office, on the fifth floor. The members of 
the jury panel and the lady who is serving as the alternate, 
will report back here at 2 o’clock, we will start promptly at 
2 o’clock.

(Court recessed until 2 p.m. February 8th, 1967.)

(Court reconvened at 2 p.m. February 8th, 1967.)

(Jury Present.)
The Court: The jury has been impaneled. Now we will 

ask if the Assistant District Attorney wishes to make an 
opening statement.

Mr. Lauerman: Yes, Your Honor. A  part of making 
my opening statement is to inform the Court and members 
of the jury, that Mr. Joseph Lex, Assistant District Attor­
ney, with the District Attorney’s Office, will be seated at 
Counsel table during the course of this trial. May it 
please the Court, Ladies and Gentlemen of the Jury, you 
heard the complaint read to you this morning, when you 
[22] were still members of the panel, as such, I would just 
like to have a very few minutes to tell you, what the State 
intends, through its witnesses to show to you, during the 
course of this trial. On August 30th, 1967, the proclamation 
was issued by the Mayor o f Milwaukee, which regulated 
the times during which demonstrations could be made in 
the City of Milwaukee. On August 31st, 1967, Father 
Groppi and several other members of the Youth Council, 
and other people began a march in the evening hours. 
The march was taking place at a time that the Mayor had 
determined marches should not be taking place. Inspector 
Ullius, of the Mihvaukee Police Department, by use of a 
bull-horn, which is a magnifying device, to magnify the 
voice, read a copy, read from a copy of the Mayor’s Proc­
lamation, telling the marchers, that their marching was

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73a

in violation of this proclamation, he did this on two sepa­
rate occasions within a span of several minutes. On the 
third occasion, around 10th and North Avenue, in the City 
of Milwaukee, he again warned them, that what they were 
doing, was in violation of the law. The marching con­
tinued, so at this point Inspector Ullius told Sgt. Frank 
Miller of the Milwaukee Police Department, to make ar­
rests. Father Groppi was arrested by Police Officer Ar­
mando Brazzoni, who was a member of Sgt. Miller’s squad. 
At the time he was arrested, there [23] was a scuffle, after 
which Father Groppi went limp onto the street, so Sgt. 
Miller and two other police officers, Armando Brazzoni 
and Wilfred Buchanan picked up Father Groppi, in order 
to carry him to the patrol wagon, the paddy wagon, which 
was about 100 feet from the point where he had gone limp, 
Officer Armando Brazzoni picked Father Groppi up around 
the back area, his hands underneath his shoulders, Sgt. 
Miller picked him up by one leg, and Officer Buchanan 
picked him up by the other leg, they then proceeded to 
carry him to the paddy wagon. As I said before this was 
a distance of approximately 100 feet, when they got to the 
paddy wagon, suddenly Father Groppi, as the officers 
were releasing him, in order to have him put in the paddy 
wagon, Father Groppi kicked Officer Wilfred Buchanan 
in the chest, some words followed, after which the defen­
dant, Father Groppi was successfully placed in the wagon. 
The State will prove to you, or show to you that the acts 
of Father Groppi in this case, constituted a resistance, as 
directed toward Officer W ilfred Buchanan, thank you.

The Court: Mr. Jacobson, representing the defendant, 
do you wish to make an opening statement.

Mr. Jacobson: The defense will reserve their opening 
statement until later, Your Honor.

The Court: All right.

Transcript of Testimony



74a

[24] Mr. Lauerman: Your Honor, the State would wish to 
have State’s Exhibit marked for identification, and en­
tered into evidence as State’s Exhibit 1, containing a 
certified copy of the proclamation.

(State Exhibit Number 1, marked for identification.)

The Court: Certified copy.
Mr. Lauerman: Of the proclamation, dated August 30th, 

1967.
Mr. Jacobson: Objection, Your Honor.
Mr. Lauerman: What grounds ?
Mr. Jacobson: Well, there has been no foundation laid 

at this time, for the introduction of the proclamation, and 
secondly, the proclamation is immaterial to the charge 
with which the defendant is before the Court and jury, and 
that’s all.

Mr. Lauerman: The State would wish to be heard out 
of the presence of the jury, Your Honor.

The Court: Right, members of the jury, will be excused 
for a few minutes.

(Jury excused.)

Mr. Lauerman: You want to argue your objection?
Mr. Jacobson: Yes.
The Court: State’s Exhibit marked for identification, is 

a certified copy of the Mayor’s proclamation of August 
30th, 1967, there will be an objection thereto, on the part 
of [25] Mr. Jacobson, what do you wish to state to your 
objection?

Mr. Jacobson: At this point we don’t believe the State 
has established any foundation for the introduction of the 
proclamation into evidence, nor established its materiality. 
As to the second point, the defense this morning withdrew 
any constitutional objections to the proclamation in the

Transcript of Testimony



75a

proceedings, in the resisting arrest charge, for the reason, 
that the state of the proceeding, even at this time, as far as 
the record is concerned for the charge of resisting arrest, 
the proclamation on its face, attacking that proclamation’s 
constitutionality, does not become material, to whether or 
not Father Groppi in fact resisted arrest. However, de­
fense counsel, anticipating that the proclamation would be 
offered into evidence by the State, had under subpoena the 
Mayor of the City of Milwaukee, for the purpose of elicit­
ing certain testimony from the Mayor, as to what emer­
gency conditions the Mayor felt existed in the City of 
Milwaukee, at the time of the issuance of the proclamation. 
In order to lay a proper foundation in the record, for a 
charge as a matter of law, to the validity of the proclama­
tion and the use of the Mayor’s emergency powers as 
applied to the facts of the defendant in the incident before 
the Court and jury. Now, the Court has quashed the sub­
poena, indicating it was not material, that any [26] testi­
mony that would be elicited from the Mayor to these proceed­
ings, that is, to the resisting arrest proceeding. The fact is 
that defense counsel has been precluded from putting facts 
into the record, through the Mayor, to show that in fact, emer­
gency conditions did not exist in the City of Milwaukee, 
on the 30th day of August, 1967, to warrant the issuance 
of the proclamation, which is now being offered into evi­
dence. As a matter of fact, was a direct infraction of 
citizens’ own constitutional rights to freely demonstrate 
under the protection of the United States constitution. 
Having been precluded from doing that, we would object 
at this time to the proclamation being offered into evidence, 
on the basis that it does not become material, the procla­
mation, what it says, to the offense of resisting arrest.

Mr. Lauerman: Regarding Counsel’s first objection, 
that—being that there was no foundation laid, I would

Transcript of Testimony



76a

refer the Court to Section 889.18 of the statutes, entitled 
Official Records as Evidence, sub. 1, “ every official record, 
report, or certificate made by any public officer pursuant 
to law, is evidence of the facts, which are therein stated, 
and which are required or permitted to be, by such officer, 
recorded, reported, or certified, except that the record by 
the County Clerk of License or certificate, under 147.23 or 
153.05, shall not be evidence on behalf of the [27] licensee, or 
certificate holder—without production of the license or 
certificate or competent evidence from the board or body 
that issued the same” . Sub. 2, Copies as Evidence. “A 
certified copy of any written or printed matter preserved 
pursuant to law in any public office, or with any public 
officer in this State, or of the United States is admissible 
in evidence, whenever and wherever, the original is ad­
missible, and with like effect.” Regarding the present 
State’s Exhibit 1, for identification, this is a certified copy 
of a public record, and as such is admissible under this 
section.

The Court: May I see that.
Mr. Jacobson: May I respond to this, what I mean by 

not proper foundation, I am well aware of the certified 
record of the Wisconsin Statutes, and it is true, that in fact, 
this is properly admitted into evidence, but there has been 
no foundation through any witnesses to indicate the procla­
mation is an issue in this case, there hasn’t been any tes­
timony offered in the record, that in fact the proclamation 
was issued, or that any officers were acting on what was 
issued, or anything of that nature. The State is leading 
off with an exhibit which we have nothing in the record to 
indicate why they are material to these proceedings, and 
because the State has not laid the proper foundation to 
offer this exhibit into evidence.

Transcript of Testimony



77a

[28] Mr. Lauerman: Let me proceed briefly, to Counsel’s 
second point, as to materiality. Under the charge that the 
defendant, in the present case is charged with, it behooves 
the State to prove that the officer was acting both in his 
official capacity and with lawful authority. For that reason 
the proclamation becomes very material, because that is 
the reason for the arrest, and the subsequent resisting, 
would be as to that arrest. So it does behoove the State 
to show the reason for the officers arresting Father Groppi, 
so that the jury will not be confused as to why the arrest 
was permitted in this case. I think it is as material as, 
for instance a battery charge, for which a man was ar­
rested, which the Court and jury could take judicial notice 
of, or any other reason, disorderly conduct, for any other 
reason that a person may be subsequently arrested. That 
the officer was acting under a lawful authority, and I think 
for that reason, this is very material and if the Court would 
care to rule on that aspect, on that specific issue, then the 
State would have no objection to not introducing State’s 
Exhibit 1 for identification until the proper point and time, 
when the first witness would get to that point, whereby, 
the proclamation would become material in that respect.

The Court: I will reserve a ruling.
Mr. Lauerman: Until that time?
[29] The Court : I will reserve a ruling until such time it is 

called upon.
Mr. Lauerman: Very good.

(Jury present.)

Transcript of Testimony



78a

Inspector Roy Vllius—for Plaintiff—Direct 

T estimony fob P laintiff

I nspector Roy U llius, called as a witness on behalf of 
the State of Wisconsin, being first duly sworn, on oath 
testified as follows:

Direct Examination by Mr. Lauerman:

Q. Would you please state your name, sir? A. Roy 
Ullius.

Q. What is your occupation? A. I am a police officer.
Q. How long have you been a police officer? A. 25 years.
Q. Are you a police officer for the City of Milwaukee 

Police Department? A. Yes, sir.
Q. And what rank do you hold? A. Deputy Inspector.
Q. How long have you been a Deputy Inspector? A. A 

little over two years.
[30] Q. Inspector Ullius were you an Inspector for the Mil­

waukee Police Department on August 31st, 1967? A. I 
was.

Q. What were your hours of work on that date? A. My 
tour of duty started at 2 p.m., and ended at 2 a.m. the fol­
lowing morning.

Q. Do you remember where you were at approximately 
7 p.m. on that date? A. I do.

Q. Where were you? A. I was at St. Boniface Church, 
in the City of Milwaukee, at North 11th and West Mein- 
ecke Streets.

Q. What happened when you were at that place, on that 
date? A. At approximately 7 p.m., on Thursday, August 
31st, 1967, a group of three to four hundred persons com­
menced a march, three to four abreast, south on North 11th 
Street, toward West North Avenue.



79a

Q. What did you do as this march began! A. I drove 
the squad I was operating to the middle of the 2500 block 
of North 11th Street, at approximately 2539, I stopped my 
squad and took a portable loud speaker, a public address 
system from the squad, and placed it on top of the squad, 
using the roof of the car for a resting place for this port­
able speaker.

Q. What did you do then? [31] A. I then read a proclama­
tion, a copy of a proclamation that I had received when 
I came to work at 2 p.m. on this date.

Q. Did you read it through this portable loud speaker 
you had? A. Yes, sir, I did.

Q. I show you what has been marked State’s Exhibit 1 
for identification, and ask you, if you know what that is? 
A. It is an exact copy, of the copy of the proclamation 
that I had in my possession on that date.

Q. What did you do after you first read the proclama­
tion to this crowd of people? A. The group of people 
continued their march, singing and booing, to a degree 
that I do not know how many people marching heard me 
read this proclamation, and then I proceeded to the 2300 
block of North 11th Street, and again read the proclama­
tion.

Q. Did you read this proclamation in the same manner 
that you previously had? A. Yes, sir.

Q. What happened then? A. The march continued to 
West North Avenue, turned east on North Avenue, and 
at North 10th and West North Avenue, I advised the 
marchers in the same manner, that the continuation of this 
march was a violation of the proclamation, and that if they 
did not stop this march, at this time, arrests would be made.

[32] Q. What did you observe happening then? A. The 
march continued eastbound on the north side of the street on 
West North Avenue.

Inspector Roy Ullius—for Plaintiff—Direct



80a

Q. What did you do then? A. I then advised the police 
officers that were with me, they should take police action, 
to stop the march.

Q. Do you remember any particular officers? A. Sgt. 
Frank Miller was immediately beside me, and Officer Braz- 
zoni was with him, several other police officials were pres­
ent there, at the time.

Q. Are these addresses that you have been testifying to, 
regarding that of North 11th and West North Avenue, and 
of the 2500 block of North 11th Street, and the 2300 block 
of North 11th Street, and that of 10th and North Avenue, 
are all those addresses in the City and County of Mil­
waukee, State of Wisconsin? A. They are, sir.

Mr. Lauerman: That’s all.
Mr. Jacobson: Your Honor, the defense moves to 

strike the line of testimony that has been put in the 
record, as being immaterial to the resisting arrest 
charge.

The Court: That is the foundation, so I will over­
rule your objection.

Mr. Jacobson: No questions.
The Court: You’re excused.

Sgt. Frank Miller—for Plaintiff—Direct

[33] Sgt. F rank M iller, called as a witness on behalf of 
the State of Wisconsin, being first duly sworn, on oath testi­
fied as follow s:

Direct Examination by Mr. Lauerman-.

Q. Would you state your name please? A. Frank Miller. 
Q. What is your occupation, sir? A. Police Officer.
Q. Is that for the City of Milwaukee Police Department? 

A. Yes, sir.



81a

Q. What is your rank? A. Police Sergeant.
Q. How long have you been a member of the Milwaukee 

Police Department? A. 16 years.
Q. How long have you been a Sergeant? A. Eight 

years.
Q. So then you were a Sergeant on the Milwaukee Police 

Department on August 31st, 1967, is that correct? A. Yes, 
sir.

Q. Do you remember what your hours of duty were on 
that date? A. This particular duty, was 4 p.m. to 4 a.m.

Q. Do you remember where you were on August 31st, 
1967, at approximately 7 p.m.? A. Yes, I do.

[34] Q. Where was that? A. I was in the vicinity of 11th 
and West North Avenue.

Q. Why were you there? A. I was there as a Field 
Supervisor, with officers under my command, to parallel a 
march that was started approximately at this time, at 
which, was marching on West North Avenue.

Q. Did you subsequently see these marchers? A. Yes 
sir, I did.

Q. Do you remember what time? A. It was approxi­
mately 7 p.m.

Q. What did you do when you saw these marchers? A. 
I instructed the officers under my command to parallel the 
march, as they marched on North Avenue, on 11th Street, 
east on West North Avenue, from 11th Street.

Mr. Jacobson: Will you read his answer back?

(Answer read back.)

By Mr. Lauerman:

Q. While you were watching the marchers, can you state, 
whether or not you had occasion to see Inspector Ullius? 
A. Yes, I did.

Sgt. Frank Miller—for Plaintiff—Direct



82a

Q. What if anything, did you observe him do? A. In­
spector Ullius was walking on the road, east with the march, 
on West North Avenue, and he was at the very beginning 
of the march, I myself was practically at his [35] side, also at 
the head of the march.

Q. What happened as you were walking? A. Inspector 
Ullius had read off the Mayor’s proclamation to the march­
ers informing them of the violation of the proclamation, 
and when we reached 10th Street, Inspector Ullius again 
read off the proclamation to the marchers.

Mr. Jacobson: I am going to object to the answer, 
and the question, as being immaterial to the resist­
ing arrest, I ’d like to he heard on the objection at 
this point Your Honor.

Mr. Lauerman: Perhaps we could go in there.
Mr. Jacobson: I ’d gladly have the argument in 

front here, whatever the Court wishes.
The Court: What is your objection, then I will 

rule on it.
Mr. Jacobson: The objection Your Honor, is that 

any testimony as to what occurred in response to 
what Inspector Ullius did in regard to the marchers 
is immaterial to what the defendant is charged with, 
the only thing that is material is what the Sergeant 
did, in respect to the defendant, and on what basis, 
and what authority.

The Court: On the other hand, the Inspector, I 
believe, testified this man was a subordinate of his, 
and acting under his authority, for that reason I 
think it is material, and I will overrule your objec­
tion.

Sgt. Frank Miller—for Plaintiff—Direct



83a

Sgt. Frank Miller—for Plaintiff—Direct 

[36] By Mr. Lauerman:

Q. Sgt. Miller, after you had heard Inspector Ullius 
read the proclamation to these marchers, for the second 
time, what happened, what did you observe? A. At this 
time the marchers, were marching, they had their arms 
locked, marching approximately three to four abreast, they 
were marching very slowly.

Mr. Jacobson: I am going to object to the ques­
tion and answer, on the basis of immateriality, as 
well as it is highly prejudicial that any testimony of 
this nature, being put in the record, as far as this 
defendant is concerned, and what he is charged with.

The Court: It might possibly apply, it is a pre­
liminary question, so I will overrule the objection, 
let the answer stand.

By Mr. Lauerman:

Q. You then followed these marchers to the ten hundred 
block of West North Avenue, what happened then, if any­
thing? A. After Inspector Ullius read off the proclama­
tion for the last time, he instructed me to stop the march, 
and make arrests.

Q. What did you do? A. I turned my attention to the 
officers under my command, and I instructed them to stop 
the march, and make arrests.

Q. What did you observe then? [37] A. Patrolman A r­
mando Brazzoni, was instructed to arrest Father Groppi.

Mr. Jacobson: Just a minute, that is not respon­
sive.

The Court: Overruled, he said what he observed, 
I will let that answer stand.



84a

The Witness: I accompanied him, Brazzoni to 
Father Groppi’s side, and Father Groppi was placed 
under arrest, Officer Richard Dembrowski also 
joined us there, and we proceeded to walk him to a 
wagon, which was parked in mid-block between 9th 
and 10th on West North Avenue, the wagon—

Mr. Jacobson: That is enough officer, make your 
answers more responsive, in a question and answer 
form, no narratives.

By Mr. Lauerman:

Q. I will just back up a little bit Sergeant, you said that 
you and Officer Brazzoni, went to Father Groppi, and placed 
him under arrest? A. Yes, sir.

Q. Who placed Father Groppi under arrest? A. Patrol­
man Brazzoni.

Q. Were you with Patrolman Brazzoni when he did so? 
A. Yes, sir.

Q. Was Father Groppi right there too? [38] A. Yes, sir.
Q. What did Officer Brazzoni placed Father Groppi un­

der arrest for? A. Violation of the Mayor’s Proclama­
tion.

Mr. Lauerman: State renews its motion to have 
State’s Exhibit 1 for identification entered into evi­
dence, as State’s Exhibit 1.

Mr. Jacobson: Objection, same grounds, not ma­
terial.

The Court: State’s Exhibit 1 marked for identi­
fication will be received into evidence as State’s Ex­
hibit Number 1, pursuant to my ruling that I would 
reserve it, until such time it was material.

Sgt. Frank Miller—for Plaintiff—Direct



85a

By Mr. Lauerman:

Q. Sgt. Miller, you testified—

Mr. Jacobson: At this point, I would like to place 
one additional objection in the record. I think I ’d 
better do it outside the presence of the jury, Your 
Honor.

The Court: All right, jury will be excused.

(Jury excused.)

Mr. Jacobson: At this point Your Honor, the 
defense again would renew its objection to the 
quashing of the subpoena, of the Mayor of the City 
of Milwaukee, now that the proclamation in fact 
is in evidence, and has been accepted in evidence. 
The need for the presence of [39] the Mayor to sub­
stantiate that in fact emergency conditions existed in 
the City of Milwaukee, in fact utilized this, in issu­
ing his proclamation, becomes all the more material 
to a proper defense of this case, and that the Court 
quashed the subpoena of the Mayor, and not per­
mitted Counsel to elicit testimony from the Mayor, 
regarding the invoking of the emergency powers, 
under Statutes and ordinances of the City of Mil­
waukee, in the form of the proclamation. At this 
point the defense would like the record to clearly 
indicate, again, there is an objection.

The Court: All right, as I said, State’s Exhibit 
Number 1, marked for identification, being a certified 
copy of the Mayor’s proclamation, under the law, 
can be received into evidence as an official document. 
Secondly, the motion to dismiss, that was filed on 
behalf of the defendant, which I ruled on today, on 
the grounds that the Mayor’s proclamation was un-

Sgt. Frank Miller—for Plaintiff—Direct



86a

constitutional, has been withdrawn, so therefore, 
we have nothing to rule on, the constitutionality, or 
unconstitutionality of the Mayor’s proclamation on 
August 30th. So therefore on that basis of those 
two, on the basis of those two reasons, I received 
that, State’s Exhibit 1, State’s Exhibit Number 1 
into evidence, and that’s another reason why the 
subpoena the requesting of the subpoena was 
quashed, there is no [40] necessity for it, because the 
Mayor’s proclamation is an official document, and 
as so, the reasons for the Mayor’s proclamation, 
and the reason behind it, would be immaterial to 
the issue in this particular case, but your objection 
is noted for the record, and all your prior objec­
tions thereto also.

(Jury present.)

By Mr. Lauerman:

Q. Sgt. Miller, after Father Groppi was placed under 
arrest, what happened? A. We started walking Father 
Groppi to the wagon, which was parked mid-block between 
9th and 10th Streets on West North Avenue—

Mr. Jacobson: That’s enough of who helped him, 
at this point, so I don’t have to interrupt the witness 
when he is testifying, I think we established we were 
going to object to any narrative, on the part of this 
witness, we would like the response in a form of 
question and answer.

The Court: Question and answer, give a direct 
answer, what you saw, and don’t draw any conclu­
sions, what you saw, what you heard, what the de­
fendant did, if anything.

Sgt. Frank Miller—for Plaintiff—Direct



87a

Sgt. Frank Miller—for Plaintiff—Direct 

By Mr. Lauerman:

[41] Q. Who helped you direct Father Groppi toward the 
wagon? A. Patrolman Brazzoni, and Patrolman Dem- 
bowski.

Q. Did something happen on your way to the wagon? 
A. Yes.

Q. What was that? A. Several members of the Youth 
Council, came up to us, and started tugging at Father 
Groppi, trying to pull him away from us.

Q. What did you do? A. Officer Dembowski was sep­
arated from us, and was making an arrest of one of the 
Youth Council members.

Mr. Jacobson: Objection, it is not responsive.
The Court: The question is what did you do.

By Mr. Lauerman:

Q. What did you do? A. I am sorry. I directed him, 
Patrolman Dembowski to try to have the Youth Council 
members stop from interfering.

Q. And then what happened? A. Officer Dembowski did 
just that, and at this time, Father Groppi was still in our 
custody, Patrolman Brazzoni and myself.

Q. Now what if anything, did Father Groppi do at this 
time? A. At this very time, he went limp.

Q. Could you explain, what you mean by that? A. Yes, 
he became limp in body, and sat in the street.

[42] Q. So then what did you do? A. I called for another 
officer, this was Officer Wilfred Buchanan, to assist Patrol­
man Brazzoni and myself in picking up Father Groppi, 
and—

Mr. Jacobson: I am going to object Your Honor, 
to this answer of Sgt. Miller, as being not responsive 
to the question.



88a

The Court: I think that was responsive to an ex­
tent, where I will overrule the objection. Reframe 
a new question.

By Mr. Lauerman:
Q. So Officer— Officer Buchanan came to help you and 

Officer Brazzoni? A. Yes, sir.
Q. And what did the three of you do? A. Patrolman 

Brazzoni picked up Father Groppi by the upper part of his 
body, by the shoulders, I picked up his right leg, Officer 
Buchanan picked up his left leg, we then started

Mr. Jacobson: That’s enough. Objection Your 
Honor, not responsive.

The Court: The question was what the three of 
you did, I will overrule the objection.

By Mr. Lauerman:

Q. So the three of you picked up Father Groppi, then 
what did [43] the three of you do? A. We started carrying 
him towards the wagon.

Q. How far was the wagon from this point? A. Ap­
proximately 100, to 125 feet.

Q. And did the three of you carry him all the way to 
the wagon? A. Yes, we did.

Q. As you neared the wagon, what if anything happened? 
A. As we came toward the rear of the wagon, the doors 
were opened, there were— the wagon was almost full from 
other—

Sgt. Frank Miller—for Plaintiff—Direct

Mr. Jacobson: This is not responsive, Your Honor. 
The Court: Just what happened?
The Witness: We attempted to place him in the

wagon.



89a

The Court: All right, then what happened?
The Witness: As we were easing him in the wagon, 

Father Groppi suddenly became violent—
Mr. Jacobson: Just a minute, I am going to ob­

ject—
The Court: Just what did he do, physically?
Mr. Jacobson: I am asking that word, violent, be 

stricken from the record, that the witness be admon­
ished, I don’t want those kind of descriptions placed 
in evidence, in front of this jury, this Sergeant 
knows how to testify.

The Court: I f the jury wants to attach any [44] 
significance to this, if you do, you do, if you don’t you 
don’t.

Mr. Jacobson: That word violent, is obviously a 
prejudicial word, it is immaterial, the officer cannot 
testify in that manner, and he knows better than to 
testify in that manner, he can testify to the facts, 
to what occurred, but the conclusions is for the jury 
to decide, I don’t want this Sergeant using language 
of this nature, he has testified before.

The Court: Same ruling, if you want to attach 
any significance fine, if you don’t, you don’t, just 
weigh all these things, anything you think is mate­
rial, but if you don’t think it is material, then dis­
regard it. Officer tell us physically what he did, and 
what did you do.

By Mr. Lauerman:

Q. What did you observe Father Groppi do? A. He 
kicked out with his left leg at Officer Buchanan, catching 
him in the chest, and he hollered out, “ let go of my leg you 
fuckinn’ son-of-a-bitch—

Sgt. Frank Miller—for Plaintiff—Direct



90a

Mr. Jacobson: I am going to object to the lan­
guage that Father Groppi was supposed to have 
used, as being immaterial to the offense of resist­
ing an officer, and the language of course, would be 
outside the province of that charge.

[45] The Court: I will overrule the objection, just 
exactly what was heard, what was said, that is all 
for the jury to weigh one way or the other, so I 
will overrule the objection.

By Mr. Lauerman:
Q. After he stated this, what happened? A. At this 

time, Officer Buchanan was on the ground, Patrolman 
Brazzoni and myself were able to put Father Groppi in 
the wagon, and just before the wagon doors were closed, 
he called me a fuckin’ son-of-a-bitch—

Mr. Jacobson: Your Honor, I think that is out­
side of the scope of this charge, and certainly it 
isn’t material, that is set forth in what the Court 
read to the jury earlier, we object to that testimony, 
and ask that it be stricken.

The Court: I will overrule the objection, the 
answer will be sustained as responsive.

By Mr. Lauerman:

Q. After Father Groppi was placed in the wagon, what 
did you do? A. I ordered the doors closed, and ordered 
the wagon to convey the people to the station.

Q. Did the wagen then leave? A. Yes.
Q. Did you stay on the scene? A. I stayed on the 

scene, on North Avenue.

Sgt. Frank Miller—for Plaintiff—Direct

Mr. Lauerman: That’s all.



91a

Sgt. Frank Miller—for Plaintiff—Cross

[46] By Mr. Lauerman:

Q. These address that you have been referring to, and 
the address where Father Groppi was placed in the patrol 
wagon, are those in the City and County of Milwaukee, 
State of Wisconsin? A. Yes, sir.

Mr. Lauerman: That’s all.

Cross Examination by Mr. Jacobson:

Q. Sgt. Miller, were there quite a few people around 
Father Groppi at the time you were trying to place him 
in the patrol wagon? A. There were people in the wagon, 
a lot of people in the wagon.

Q. What about outside of the wagon? A. There were 
officers on the street.

Q. Were there newsmen on the street? A. I believe 
there were.

Q. Photographers? A. I can’t answer that truthfully.
Q. Were there other persons that had taken part in the 

march in the area? A. There might have been.
Q. Well, were there, or weren’t there? A. I f you were 

referring to newsmen, there were newsmen.
[47] Q .I asked if there were other marchers in the area, at 

the time you made the arrest o f Father Groppi? A. Oh, 
yes.

Q. And when Father Groppi said, at the time that he 
was supposed to have kicked Officer Buchanan in the chest 
with his left leg, you fuckin’ son-of-a-bitch, I want your 
number, does that—were those words uttered with some 
degree of force? A. Yes, they were.

Q. Pretty loud, right? A. Loud enough for me to hear 
it.

Q. Well, you were right there weren’t you? A. Yes.



92a

Q. So what I am talking about is loudness, did he shout 
that out? A. I can’t say whether it was shouted out.

Q. The situation that you described, would it be fair to 
say that Father Groppi was quite excited at the time he 
was being placed in the wagon ?

Mr. Lauerman: I would object, that it would call 
an opinion and conclusion on the part of the witness.

The Court: Can you answer that?
The Witness: He was very, very, calm.
The Court: Just answer the question, was he [48] 

excited ?
The Witness: At this time, minute, yes.

By Mr. Jacobson:

Q. So he didn’t whisper that? A. No, he didn’t.
Q. Was he talking in a normal conversational voice, do 

you recall that? A. No, it was above normal.
Q. So there was some amplification at this particular 

place, he uttered that with some amplification, is that right! 
A. Others could hear that besides myself, yes.

Q. Could have heard it? A. Sure.
Q. And you don’t really know if there were others in the 

vicinity, besides yourself that saw this arrest take place, 
do you? A. No.

Q. Now, you say that Officer Buchanan, had Father Grop- 
pi’s left leg, is that right? A. Yes, he did.

Q. And you say, you had his right leg ? A. Right, right 
leg.

Q. And Officer Brazzoni was holding the upper part of 
his body, under his arms? A. Yes.

[49] Q. You say as you attempted to place Father Groppi 
in the wagon, he struck out with his left leg, and caught Offi­
cer Buchanan in the chest? A. That’s right.

Sgt. Frank Miller—for Plaintiff—Cross



93 a

Q. Do you know whether or not Officer Buchanan was 
gouging Father Groppi’s ankle, with his left thumb? A. I 
do not know that.

Q. You don’t know what might have caused Father 
Groppi to strike out with his left leg, do you? A. No, I 
don’t.

Q. All you know, is that it went out? A. That’s right.
Q. Now, you were the arresting officer for the resisting 

charge, is that correct? A. No.
Q. Brazzoni is the arresting officer? A. Brazzoni made 

the initial arrest of the violation of the Mayor’s proclama­
tion.

Q. I am talking about the resisting? A. It was Wilfred 
Buchanan, and Officer Brazzoni.

Q. You are not a complainant in this case, are you? A. 
No.

Q. Were your officers all equipped that evening in ques­
tion, with riot sticks? A. Yes, they were.

[50] Q. Did you have rifles that night. A. We might have 
had them with us, I don’t— do not recall on the scene there, 
we might have had them with us, I don’t recall.

Q. Did you have your gas masks that night? A. Are 
you referring with us at the march, no.

Q. Did you have riot helmets? A. Yes.
Q. Did you have tear gas with you? A. No.
Q. When you broke up the march, did you administer 

your night stick on any of the marchers?

Mr. Lauerman: I object, what you’re asking is 
immaterial.

The Court: I will overrule, you may answer that.
The Witness: You were asking whether I had a 

night stick, no.

Sgt. Frank Miller—for Plaintiff—Cross



94a

Richard Dembowshi—for Plaintiff—Direct 

By Mr. Jacobson:
Q. Some other— some of the other officers did? A. Yes. 
Q. They were using them, weren’t they?

Mr. Lauerman: I object, that is immaterial.
The Court: Overruled, you may answer that.
The Witness: I don’t know whether they were 

using them or not.

By Mr. Jacobson :
[51] Q. You didn’t see them ? A. No, I was not watching 

them.
Q. What were you doing? A. What was I doing?
Q. You were on the scene, weren’t you? A. Yes.
Q. Were you just watching Father Groppi, or— A. No, 

I was supervising the scene.
Q. The whole scene? A. Yes.

Mr. Jacobson: That’s all.
The Court: You are excused.

R ic h a r d  D e m b o w s k i , called as a witness on behalf of 
the State of Wisconsin, being first duly sworn, on oath 
testified as follows:

Direct Examination by Mr. Lauerman:

Q. Would you state your name please? A. Richard Dem­
bowski.

Q. What is your occupation sir? A. Police Officer.
Q. For the City of Milwaukee Police Department? A. 

Yes.
Q. How long have you been so employed? A. Nine 

years.



95a

[52] Q. Were you so employed on August 31st, 1967 ? A. I 
was.

Q. What were your hours of duty on that date, sir? A. 
From 4 p.m. to 4 a.m. in the morning.

Q. Do you remember where you were at approximately 
7 p.m. on that date? A. At 7 p.m. I was abreast of the 
marchers, going south on 12th Street, in a marked police 
squad car.

Q. Did you see the defendant, Father James Groppi on 
that evening? A. I did.

Q. Did you happen to see him while in the company of 
Patrolman Brazzoni, and Sgt. Miller ? A. I did.

Q. And what happened when you saw him in the com­
pany of Sgt. Miller and Officer Brazzoni? A. I assisted 
Sgt. Frank Miller and Patrolman Brazzoni in making the 
arrest of Father Groppi.

Q. And after Father Groppi was placed under arrest—

Mr. Jacobson: Just a minute, that could be a little 
misleading, what he was being arrested for at that 
particular time.

By Mr. Lauerman:

Q. Do you remember what he was being arrested for at 
that particular time? [53] A. Yes, sir.

Q. What was that? A. That was for the violation of 
the Mayor’s proclamation.

Q. What did you do after Father Groppi was arrested? 
A. I took Father Groppi by his left arm, and began escort­
ing him from the parade route.

Q. Where were you escorting him to? A. I was going 
to escort him to the paddy wagon, or patrol wagon.

Q. On your way to the patrol wagon, what if anything,

Sgt. Frank Miller—for Plaintiff—Cross



96a

happened? A. A  group of Commandoes tried to take 
Father Groppi away from us.

Q. So what did you do? A. I was instructed by Sgt. 
Frank Miller, that he would take care of Father Groppi, 
and I was to try to keep the other people away from the 
Priest.

Q. So what did you do?

Mr. Jacobson: That all becomes immaterial after 
that, I would object to any more testimony of what 
Officer DemboAvski did, unless he was with Father 
Groppi.

The Court: I  aauI I  overrule the objection.

By Mr. Lauerman:

Q. So what did you do? A. After Sgt. Frank Miller, 
and Patrolman Brazzoni took Father Groppi, I tried to push 
the marchers, or keep them away [54] from Father Groppi.

Q. And did you further accompany Father Groppi to the 
patrol wagon? A. I did not.

Q. You stayed behind? A. Yes, I was there at the ini­
tial place of arrest.

Q. Did you stay in the area where the Commandoes had 
come over? A. Yes.

Q. All right, did you, at any time, go to the rear of the 
paddy wagon ? A. I did not.

Q. You don’t know anything, about what happened, as 
far as Officer Buchanan and Father Groppi, at the rear of 
the wagon, do you? A. No.

Mr. Jacobson: I object to \\diat the Officer has 
testified to, from the time he left Father Groppi, 
and ask that it be stricken as being immaterial as 
to the charge in question.

Sgt. Frank Miller—for Plaintiff—Cross



97a

The Court: Overruled, it might be the res gestae, 
if the jury wants to attach any significance do so, 
if the members of the jury find they don’t want to 
attach any significance to it, don’t. Is that all of 
this witness'?

[55] Mr. Jacobson: I have no questions.
The Court: You’re excused.

Armando Brazzoni—for Plaintiff—Direct

A rmando Brazzoni, called as a witness on behalf of the 
State of Wisconsin, being first duly sworn, on oath testi­
fied as follows:

Direct Examination by Mr. Lauerman:

Q. Would you please state your name? A. My name is 
Armando Brazzoni.

Q. What is your occupation, sir? A. Patrolman, with 
the Milwaukee Police Department.

Q. How long have you been so employed? A. Five 
years.

Q. So you were employed as a police officer for the Mil­
waukee Police Department on August 31st, 1967, is that 
correct? A. That is correct.

Q. Do you remember what your hours of duty were, on 
August 31st, 1967? A. Yes, it was 4 p.m. to 4 a.m.

Q. Do you remember where you were at approximately 
7 p.m. on that date? A. Approximately 7 p.m., oh, in the 
vicinity of the 1100 block of West North Avenue.

Q. What were you doing at that place, on that date? 
A. At that time, we were parallel on the street, going east, 
[56] next to the march that was being conducted.

Q. Did you have occasion to see Father Grroppi, ivhile you 
you were in the presence of Sgt. Frank Miller, on that day?



98a

A. Yes, I was along side of Father Groppi, about three 
feet to his right.

Q. What did you do! A. At this time I walked along 
side of him, and when we reached the 900 block of West 
North Avenue, we were instructed, or I was instructed by 
Sgt. Miller, to make any arrests, if necessary, for the vio­
lation of the Mayor’s proclamation.

Q. Where was Father Groppi, at this time? A. Father 
Groppi was to my left.

Q. How far? A. About three feet.
Q. So what did you do? A. When the order came 

through to make the arrests, I reached over and grabbed 
Father Groppi with my left hand, and grabbed him around 
the right shoulder and collar.

Q. What did you say to him, if anything? A. I said to 
Father Groppi, you’re under arrest for the violation of the 
Mayor’s proclamation.

Q. Then what did you do? A. I then started to take 
him to the middle of the intersection, but at this time, there 
was several Youth Council members [57] that had Father 
Groppi around his arm, attempting to pull him away from 
me, I instructed Father Groppi to tell the Youth Council 
members to leave him go, and that he will not be hurt.

Q. What happened then? A. One of them, one of the 
Youth Council members continued to grab him, I then 
placed him under arrest also.

Q. Then what did you do? A. Then Sgt. Miller and 
Richard Dembowski came to my assistance, we then started 
to take Father Groppi to a patrol wagon.

Q. What if anything happened while you were going to 
the patrol wagon, with Father Groppi? A. In the middle 
of the intersection, I ’d say approximately about 100 feet 
away from the wagon, Father Groppi went limp, he fell to

Armando Brazzoni—for Plaintiff—Direct



99a

the city street, and he sat on the pavement, he refused to 
be taken to the wagon.

Q. So what did you do? A. I then immediately grabbed 
him, continuing to grab him, to lift him up, at this time 
I had a shot gun in my hand, and there were other Youth 
Council members, Commandoes who were attempting to 
pull him away from us.

Q. Were you able to get ahold of Father Groppi? A. 
Yes, after I had given my shot gun to another officer.

Q. How did you grab him? A. In fact, I had him at sev­
eral different positions, and with [58] him kicking his feet 
in a motion, like pedaling a bicycle, pumping his feet back 
and forth—

Mr. Jackson: I don’t like to interfere with the 
Officer’s testimony, but these are self-serving state­
ments, and we would ask to have their answers be 
more responsive to the questions being put to them. 

The Court: Well, I think that was responsive.
Mr. Jacobson: The latter part of the answer isn’t 

responsive.
The Court: I think it is responsive. Frame a new 

question.

By Mr. Lauerman:

Q. At that time, when you tried to grab him, what did 
you observe Father Groppi doing? A. He was kicking his 
feet, as if to pedal a bicycle, a motion back and forth.

Q. Who, if anyone, from the Police Department came to 
your aid? A. As I recall, it, at that time I now recollect—

Mr. Jacobson: I object to the form of the ques­
tion Your Honor, I think that would be objectionable.

Armando Brazzoni—for Plaintiff—Direct



100a

The Court: Just answer directly, who came to 
your aid at that time.

The Witness: At that time, I know of Sgt. Miller 
was at that spot, that I know of.

[59] By Mr. Lauerman:

Q. What did Sgt. Miller do? A. Sgt. Miller then 
grabbed him, I believe it was the right leg.

Q. Do you know what happened to Father Groppi’s left 
leg? A. It was being held by another officer, at that time 
I didn’t know who the officer was.

Q. And then, what did you, and Sgt. Miller, and the other 
officer do? A. We continued to—we picked him up, and 
carried him to the wagon at this time.

Q. You say you picked him up, and carried him to the 
wagon, could you explain whether you walked in front of 
Father Groppi and the other officers, or whether you were 
carrying up the rear, or just how was he being carried? 
A. Well, I was, I had one arm underneath Father Groppi 
and another one around his back, carrying him to that 
effect, and I believe I was facing toward the wagon.

Q. I see, your back was then to Father Groppi, and the 
other officers? A. That is correct.

Q. And you carried him in this manner to the wagon? 
A. That is right.

Q. Now as you approached the wagon, or as you got to 
the rear of the wagon, what did you do? [60] A. Well, I kept 
losing my grip, because of the moving motion, and finally—

Mr. Jacobson: I am going to object to that, actu­
ally what he did, and that will be all we need.

The Court: He was moving in a motion. Frame 
a new question.

Armando Brazzoni—for Plaintiff—Direct



101a

Armando Brazzoni—for Plaintiff—Direct 

By Mr. Lauerman:

Q. You testified that you kept, you kept losing your grip? 
A. That is correct.

Q. That would be the grip you had on Father Groppi? 
A. That is correct.

Q. And would this be while you were taking him to the 
wagon? A. That is correct.

Q. And why did you keep losing your grip ? A. Because 
his feet was in a moving motion, kicking them back and 
forth as if to be pedaling a bicycle or kicking—

Q. But at any rate, you did get to the rear of the wagon 
with Father Groppi? A. That is correct.

Q. As you got to the rear of the wagon, what did you 
do ? A. The door was open, and I pushed him up into the 
wagon, there was a jerk all of a sudden, I don’t know what 
caused the jerk, the kicking of feet, a real fast kick—

Mr. Jacobson: Just a minute, I move that be 
stricken Your Honor, he has testified to what he 
doesn’t [61] know.

The Court: He is telling us what caused it.
Mr. Jacobson: So anything else is in terms of 

speculation on his part.
The Court: He is being honest, the jury can weigh 

if there was a jerk.

By Mr. Lauerman:

Q. There was a jerk, could you describe what you mean 
by a jerk? A. Just like this, in other words, fast move­
ment.

Mr. Lauerman: Let the record indicate, the wit­
ness just then, twisted his body with his arms di­



102a

rectly in front of him, to indicate his body was 
twisting.

By Mr. Lauerman:

Q. Now you say—when you just made that motion for 
the jury, what are you describing? A. I am describing 
as if to make like a fast shove with the feet, or a push 
with the feet.

Q. Were you describing—when you made this movement 
in Court just then, were you describing the motion of some­
body’s body? A. That is correct.

Q. Whose body was that? A. Father James Groppi.
Q. All right, after Father Groppi made that motion, 

what did [62] you do, or what did you see?

Mr. Jacobson: I am going to object to the form 
of the question Your Honor, I don’t know what kind 
of motion he is talking about.

The Court: You heard my ruling, it is for the 
jury to weigh. Next question.

Mr. Jacobson: It is assuming some facts, he is—

By Mr. Lauerman:

Q. I will rephrase the question, after Father Groppi made 
the motion that you demonstrated in open Court, what did 
you do? A. Well at that time he was slipping out of my 
grip, I quickly regrabbed him, and pushed him into the 
wagon, and at this time, he stated, I want that man’s badge 
number, and I placed him into the wagon further, and he 
says, I want that man’s badge number, that fuckin’ son-of-a- 
bitch.

Q. After he stated this, what did you do? A. This—at 
this time, that was it, someone had grabbed me and pulled

Armando Brazzoni—for Plaintiff—Direct



103a

me away for a moment, the doors were closed and I was 
instructed by Sgt. Miller to get on the wagon, and go 
right into the station with him, at this time.

Q. So you accompanied the wagon? A. I accompanied 
the wagon, on the rim, on the outside of the wagon to the 
back.

Q. Now as you were placing Father Groppi into the 
wagon [63] just prior to him making the movement that you 
demonstrated for us—  A. Yes.

Q. Was your back turned, was your back—were you fac­
ing the back of the wagon? A. I was facing the back of 
the wagon.

Q. So you couldn’t see what was happening behind you? 
A. No.

Q. Did you subsequently, after Father Groppi was placed 
in the wagon, have occasion to see Officer Buchanan? A. 
I did not see Officer Buchanan, until the next morning.

By Mr. Lauerman: That’s all.
Mr. Jacobson: Your Honor, we are asking that 

the entire testimony of this officer be stricken, that 
clearly, quite clearly what he has testified to was 
set out in the complaint that was read to the jury. 
It is constituting resisting arrest charge, he didn’t 
see anything at all. We are going to ask that all 
the testimony be stricken as immaterial and not rele­
vant with which Father Groppi is before the jury 
today.

The Court: Objection overruled.

Cross Examination by Mr. Jacobson:

Q. Now, Officer Brazzoni, you say that— do you even 
know if Buchanan was one of the officers that was ac­

Armando Brazzoni—for Plaintiff—Cross



104a

companying [64] Father Groppi to the patrol wagon? A. I 
did not know, no.

Q. At the time that you approached the patrol wagon, 
you say you had your arms around Father Groppi’s under 
portion of his body? A. That’s right.

Q. Would you have been facing the two police officers 
that were holding onto Father Groppi’s legs? A. My back 
would be to them.

Q. In other words, Father Groppi’s upper portion of his 
body would have been in front of you, in terms of the 
direction that you were facing, is that correct? A. Well, 
his face would be this way.

Mr. Jacobson: Just to be clear, I think what I 
will have you do is, just put your arms around me, 
as if I was Father Groppi, so we can clearly see in 
which direction, so the jury doesn’t have any prob­
lem seeing what position you were carrying Father 
Groppi to the paddy wagon. Now, I want the record 
to show that Father Groppi would have been in a— 
your left arm would have been locked around Father 
Groppi’s left arm, and your right arm would be 
holding him in the small of his back, clutching his 
clothing?

The Witness: Yes.

By Mr. Jacobson:

[65] Q. He would—would have been in a horizontal posi­
tion, with two officers, one on each of his legs? A. Eight.

Q. And the—your back would have been toward the other 
police officers, is that correct? A. Yes.

Q. All right, do you know whether the police officers had 
their backs to your— Patrolman Brazzoni, whether you

Armando Braszoni—for Plaintiff—Cross



105a

know, whether the police officers that were on Father 
Groppi’s legs, had their backs to your back? A. I f  they 
had their backs to my back?

Q. That’s right. A. No, they were facing my back.
Q. In other words, then all three of you were backing 

Father Groppi—were you walking in—were you walking— 
were you the lead man? A. That’s correct, I was walking 
in the same position of the others.

Q. But you were going forward? A. Correct.
Q. Well then, when you got to the paddy wagon that was 

opened did you attempt to put Father Groppi in, head 
first? A. Back first.

Q. Your back is that what your talking about? A. 
Father Groppi’s back.

Q. That’s right, but you would have been— [66] A. Facing 
the wagon.

Q. That’s right, you would have attempted to put his 
head— A. His head back—

Q. In first? A. His back portion to the wagon first.
Q. All right, now you say at the time that you pushed 

Father Groppi into the wagon, then head back portion first, 
you said you felt a jerk, a fast movement, is that right? 
A. Correct.

Q. You didn’t—you didn’t see what happened did you? 
A. No, I didn’t.

Q. In other words, anything that your describing as to 
what occurred at that moment, is just your way of trying 
to describe the feeling of the jerking motion, correct? A. 
Jerking motion, and that his feet was kicking, as I stated 
before.

Q. You don’t know whether his feet were kicking? A. I 
know his feet were kicking, I saw the movement.

Armando Brazzoni—for Plaintiff—Cross



106a

Q. All right, there was an officer on each leg! A. That 
is correct.

Q. That would have been more or less the officers carry­
ing him along with you, carrying him into the paddy wagon! 
A. Not with that kind of a reaction.

Q. Well, had you felt any of these jerks, this one jerk 
you described! [67] A. There had been several jerks, from 
the time we picked him up, until the time he was in the 
wagon, he was continuously moving his feet.

Q. You of your own knowledge, don’t know if any 
officer was struck by Father Groppi’s foot or anything! 
A. At that time, I did not know, no.

Q. You didn’t observe anything at all! A. I did not 
observe anything, I was pulled away to the side, I don’t 
know if it was by another officer or what.

Q. So you just don’t know! A. Yes.
Q. The testimony that you read, that you made in the 

record, is that, as you, as you felt this jerk, then shortly 
there after, you heard Father Groppi say, I want that 
man’t badge number! A. Correct.

Q. And then he again said that, I want that man’s badge 
number, and then you said with some force and some 
dramatics, that fuckin’ son-of-a-bitch, is that correct! A. 
Correct.

Q. I assume, that the latter part of what you testified to 
what Father Groppi said, he said with the same kind of 
force and volume and emphasis, that you stated to the 
jury! A. Definitely.

Q. And there were quite a few people in the vicinity of 
that [68] paddy wagon, were there not! A. Quite a few 
other officers.

Q. Some newsmen! A. I don’t know if there were news­

Armando Brazzoni—for Plaintiff—Cross

men.



107a

Q. There might have been? A. Might have been, cor­
rect.

Q. I f Father Groppi said, said with a volume that you 
indicated, it would have carried for some distance, isn’t 
that right? A. I believe so, definitely.

Q. And there is no question in your mind that he might 
have whispered this, or anything of that nature? A. No, 
he did not.

Q. With quite a volume that he let loose? A. Right.
Q. That—that’s all you heard him say, by the way, isn’t 

it? A. Yes.
Q. He didn’t say anything else, did he? A. Not that I 

recall.
Q. You’re sure about that? A. Not that I recall.
Q. You were right there weren’t you? A. Yes.
Q. I mean, if he would have continued to— A. What’s 

that?
[69] Q. I f he would have continued to swear? A. Yes.
Q. You would remember that wouldn’t you? A. Yes.
Q. And he didn’t swear again, did he, that was the only 

time? A. No, he used it twice.
Q. He used it twice? A. Correct.
Q. What did he say, tell me exactly what he said? A. 

Once as we were putting him in the wagon, he stated, I 
want that man’s badge number.

Q. There is no swearing involved in there? A. Yes, he 
stated that twice.

Q. You just said that, I want that man’s badge number? 
A. That’s right, stated it twice.

Q. There is no swearing involved? A. Yes.
Q. There is swearing involved there? A. Yes.
Q. All right, then you say, he said, that fuckin’ son-of-a- 

bitch? A. Correct.

Armando Brazzoni—for Plaintiff—Cross



108a

Q. That is the third time? A. No, the second time he 
swore, he swore twice, that is all he swore.

Q. Is it your testimony, that what Father Groppi said 
was, [70] I want that badge, that man’s badge number, that 
fuckin’ son-of-a-bitch, and then he said that precise thing 
again? A. That is correct.

Q. Because you originally testified that first time, he 
said, I  want that man’s badge number, then repeated, I 
want that man’s badge number, and then swore? A. No, 
he repeated, I want that man’s badge number, and then he 
stated, I want that man’s badge number, that fuckin’ son- 
of-a-bitch, and we placed him in the wagon, then he said 
fully, I want that man’s badge number, that fuckin’ son-of-a- 
bitch.

Q. So he said it on several other occasions? A. Twice.
Q. And he said it with some volume? A. Yes, he did.
Q. All right, do you know who he was referring to? A. 

No, I don’t, he—
Q. Now just answer my question, you don’t know who 

he was referring to? A. No, I don’t.
Q. So now, when you were actually at the wagon itself, 

when you were placing Father Groppi in the wagon, you 
actually didn’t see anything did you? A. When I placed 
Father Groppi—

Q. You really didn’t see anything, did you, in terms of 
what [71] he was doing? A. No.

Q. You just felt the jerk? A. That is correct.
Q. That is the extent of what you actually saw at that 

time and place? A. That is correct.

Armando Brazzoni—for Plaintiff—Cross

Mr. Jacobson: That’s all.



109a

Redirect Examination by Mr. Lauerman :

Q. In the back of the patrol wagon, was there much 
commotion? A. Oh, definitely there was, on the way into 
the wagon.

Mr. Jacobson: We are going to object to anything 
other than the answer to the question.

By Mr. Lauerman:

Q. As Father Groppi was being placed in? A. Oh sure, 
there was heckling of the police, the brutality, honkies, 
white honkies—

Mr. Jacobson: This is objectionable as being not 
in response to the question that was asked, certainly 
it isn’t material to the charge that Father Groppi is 
before this jury on.

The Court: Well, at that time and place, there 
was a certain amount of commotion, let the jury 
weigh it one way or the other, if  you feel it has 
significance all right, if you don’t, you don’t have to 
attach any.

[72] By Mr. Lauerman:

Q. A lot of commotion?

The Court: Yes, or no.
The W itness: Yes.

By Mr. Lauerman :

Q. Would you say there was a lot of noise? A. Well 
yes, there would have been noise.

Armando Brazzoni—for Plaintiff—Redirect



110a

Armando Brazzoni—for Plaintiff—Recross 
Wilfred Buchanan—for Plaintiff—Direct

Mr. Lauerman: That’s all.

Recross Examination by Mr. Jacobson:

Q. Officer, do you know on what charge Father Groppi 
is before this jury? A. Do I know the charge?

Q. Yes, if there was a lot of noise at that time and place, 
when you were placing Father Groppi under arrest, was 
it—

Mr. Lauerman: I will object.
Mr. Jacobson: We will withdraw that question. 

We have no more questions.
The Court: You’re excused.

Officer W ilfred B uchanan, called as a witness on be­
half of the State of Wisconsin, being first duly sworn, on 
oath testified as follow s:

Direct Examination by Mr. Lauerman:

Q. Would you please state your name? [73] A. Wilfred 
Buchanan.

Q. What is your occupation sir? A. Police Officer, City 
of Milwaukee.

Q. How long have you been so employed? A. Approxi­
mately 15 years.

Q. So then you were a member of the Milwaukee Police 
Department on August 31st, 1967 ? A. I was.

Q. Do you remember what your hours of work were on 
that date? A. I had started at 8 a.m. on that morning, 
and the time of going home was undecided, we didn’t know.

Q. Were you on duty at approximately 7 p.m. on that 
date? A. I was.

Q. Where were you at that time? A. On 9th and North.



111a

Mr. Jacobson: Could you talk a little louder. , 
The Witness: 9th and North.

By Mr. Lauerman:

Q. Did you have occasion to see Father James Groppi, 
while you were with Sgt. Miller on that date? A. Yes, I 
did.

Mr. Jacobson: That assumes some facts in evi­
dence that hasn’t been testified to, that he was with 
Sgt. Miller, you want to establish that he testified 
he was with—

Mr. Lauerman: But he hasn’t so—
[74] Mr. Jacobson: I will withdraw my objection.

By Mr. Lauerman :

Q. About what time was this ? A. About 7 :15, I was on 
9th and North, I had went up to 10th where I met Sgt. 
Frank Miller, and I -was behind Sgt. Miller, with some 
other officers, walking east on North Avenue.

Q. Did you have occasion to approach Father Groppi? 
A. I didn’t know who he was, I was approaching when 
Sgt. Miller and another officer made an arrest, I was called 
to for assistance.

Q. You were called to for assistance? A. Yes.
Q. What did you do ? A. I immediately ran over there, 

and said to him, on my way over there, some other men 
had been struggling, trying to pull the man away from the 
officers.

Mr. Jacobson: I am going to object, unless it— 
the officer saw that happen, then I ’d object to the 
answer as not being responsive.

The Court: Did you see that happen?

Wilfred Buchanan—for Plaintiff—Direct



112a

The Witness: Yes.
The Court: He said yes.

By Mr. Lauerman:

Q. So you went over there? A. Yes.
[75] Q. What did you observe when you got there? A. One 

officer got the men who was trying to struggle the prisoner 
away from Sgt. Miller, and this other Officer, Brazzoni, he 
got them away, and we started to carry—then I recognized 
Father Groppi, after he had went limp.

Q. Did you see Father Groppi go limp? A. Yes.
Q. Is that when you first started carrying Father Grop­

pi? A. That is.
Q. You grabbed his leg, what leg? A. His left leg.
Q. All right, and did you follow behind Officer Brazzoni? 

A. Yes.
Q. In carrying Father Groppi? A. Yes.
Q. I see, you were facing the back of Officer Brazzoni? 

A. Yes.
Q. And what, if anything, did you observe Father Grop­

pi doing, as you carried him to the wagon? A. On the way 
to the wagon, he was kicking his feet, not very violent, 
but he was kicking them.

Q. Now what if anything happened, and what if any­
thing did you do, as you got to the rear of the wagon? A. 
I was trying to hold his leg, and I had my night stick in 
my hand, as I was trying to hold on, I didn’t have a good
[76] hold on him, he kicked out very hard, kicked his leg 
loose, and then he kicked me in the chest, knocking me on the 
ground, on one knee.

Q. Now, just so we are clear Officer Buchanan, could you 
please tell the jury, whether that man, who kicked you,

Wilfred Buchanan—for Plaintiff—Direct



113a

is present here in Court this afternoon? A. The man who 
kicked me that night, is Father James Groppi.

Q. Is he present? A. He is.
Q. Could you identify him please? A. He is sitting in 

the middle of the two gentlemen, at the defense table.

Mr. Lauerman: Sitting in the middle at the sec­
ond table, let the record show, the witness identified 
Father Groppi.

By Mr. Lauerman:

Q. After you were kicked and fell to one knee, what did 
you observe happen? A. He was shouting at me, you 
fuckin’ son-of-a-bitch, to the effect, I want your badge 
number, which I didn’t have any badge on.

Q. But you were in uniform? A. I was in uniform.
Q. Were the other officers who carried Father Groppi to 

the wagon, were they in uniform? [77] A. All the officers 
were in uniform there.

Q. And after you heard him state these words, what did 
you observe? A. He had repeated it again, the same 
words, you fuckin’ son-of-a-bitch, I want your badge num­
ber.

Q. Then what happened? A. Then he was put in the 
wagon by then, and he was on his way.

Q. Did you subsequently receive medical treatment for 
your injuries? A. Yes, I later, I went to Mount Sinai 
Hospital, where I was treated for a bruise and a contu­
sion on the chest.

Wilfred Buchanan—for Plaintiff—Direct

Mr. Lauerman: That’s all.



114a

Cross Examination by Mr. Jacobson:

Q. Why didn’t you have your badge numbers on that 
night? A. We didn’t wear badges.

Q. Why not? A. Under orders from the Department.
Q. Why? A. I don’t question my superiors.
Q. Do you know why you—

Mr. Lauerman: Immaterial and argumentative.

By Mr. Jacobson:

Q. You answered you don’t know, is that correct? [78] A. 
I don’t question my superiors, my personal opinion, it is a 
dangerous weapon, it can be ripped off.

Q. Is that why you—

Mr. Lauerman: I will object, he anwered that 
question.

Mr. Jacobson: I am asking why he wasn’t wear­
ing that badge that night, if he—if that is the 
reason, or if that is any speculation on his part. 

The Court: I f  you know.
The W itness: I don’t know.
Mr. Jacobson: All right, that is all I wanted to 

know.

By Mr. Jacobson:

Q. In other words this was on orders of your superiors, 
you weren’t supposed to wear—

Mr. Lauerman: Objection, repetitious.
The Court: He has answered that.

Wilfred Buchanan—for Plaintiff—Cross



1 1 5 a

Wilfred Buchanan—for Plaintiff—Cross 

By Mr. Jacobson:

Q. You say you had your night stick in one hand, and 
Father Groppi’s leg in the other hand, is that your testi­
mony? A. No.

Q. What is your testimony, how were you carrying him 
to the patrol wagon? A. I had the night stick in the hand, 
and that hand was around Father Groppi’s leg, so was the 
other one.

Q. You had the night stick as well as Father Groppi’s 
leg? [79] A. That is correct.

Q. And you were holding on pretty tight were you, to 
his leg? A. Apparently not tight enough.

Q. Apparently—I am not asking you for speculation, 
whether you were holding tight, or whether you weren’t? 
A. I had a firm grasp, but it was not that tight.

Q. Isn’t it a fact that you were actually digging your 
thumb into his ankle as you were taking Father Groppi 
in the wagon? A. No, sir.

Q. And when you were carrying Father Groppi into the 
patrol wagon, was it, as you got to the patrol wagon, you 
say the doors were opened? A. That’s right.

Q. And did the thrust toward placing Father Groppi 
into the patrol wagon, commence before he kicked loose? 
Do you understand my question? A. No, not clear.

Q. When you got to the patrol wagon, you were holding 
his left leg, correct? A. Yes.

Q. And Sgt. Miller had his right leg? A. That is cor­
rect.

Q. And Brazzoni was holding onto his upper portion of 
his body? [80] A. Yes.

Q. In order to place him into the wagon, you would have 
to thrust him in, isn’t that correct? A. Yes.

Q. Had that thrust commenced before Father Groppi



116a

had kicked his leg loose? A. No, not that I recall, it hap­
pened so fast, I couldn’t say definitely.

Q. Would you—would you deny that the reason Father 
Groppi kicked his leg loose, was the grip on his leg? A. 
Certainly I would.

Q. What makes you so certain of that? A. I never dig 
my nails into anybody, I don’t dig, I used my fingers for—

Q. You have testified that you had a firm grip on his 
leg? A. Yes.

Q. How would you apply a firm grip, if you wouldn’t be 
applying— A. An even hold, not just one finger, sir.

Q. You certainly understand that with the hold you had, 
you could have applied pressure with your thumb, on his 
leg, or on his ankle portion, isn’t that correct? A. I could 
have hit him with a night stick too sir, but I didn’t.

Q. You don’t deny the grip that you had on his leg, or 
ankle, [81] was of a nature—you did have your hand in fact, 
on his ankle? A. Yes.

Q. You deny that? A. No, I don’t deny that.
Q. That was the grip you had? A. Yes.
Q. Now you indicated that he kicked his leg loose? A. 

Yes.
Q. Then, did he then come down on his left leg? A. 

A. When he kicked me with his left leg?
Q. After he kicked his left leg loose? A. He was still 

suspended.
Q. That’s right? A. Yes.
Q. He never brought his leg completely down, his left 

leg? A. No.
Q. In other words, while he was still in the air, the thrust 

of his leg caught you in the chest? A. He pulled his leg 
back to his body, and kicked that way, not football style.

Q. What? A. He pulled it to his body, and kicked down­
ward, where I was.

Wilfred. Buchanan—for Plaintiff—Cross



117a

Q. In what position were you in, at that time ? [82] A. I was 
facing—he was upright, facing in a supine position, I was 
holding his leg toward the bottom of his foot.

Q. Well, would he have been perfectly horizontal, when 
you approached his— A. Not perfectly horizontal, not 
perfectly.

Q. His head would have been a little higher? A. That I 
don’t know, I was concerned about getting him over there.

Q. You were holding his leg about hip height weren’t 
you, isn’t that where you were resting his leg? A. Yes.

Q. And you say he kicked down at you? A. When I say 
down, I mean from his body downward, and I would be at 
the base of him, so it would be a movement like that, not 
downward.

Q. What portion of your chest did he hit? A. The upper 
part, right in here.

Q. About shoulder high? A. Yes, about right in here.
Q. You deny that this striking of his foot, what you 

described as a kicking of you, was a result of any pressure 
that you applied on his ankle as you— A. Yes, I deny 
that.

Q. Now you testified that Father Groppi indicated that 
when— strike that—who then placed Father Groppi in the 
patrol [83] wagon, who placed him in the patrol wagon? A. 
After I went down on my knee, I think the other two officers 
put him in themselves, I lost my grip then.

Q. At that point, you say, you heard Father Groppi say, 
you fuckin’ son-of-a-bitch I want your badge number? A. 
Yes.

Q. And then he repeated that? A. Yes.
Q. And would you say that he said this, with some vol­

ume? A. Yes.
Q. If there was—were there other persons in the vicinity? 

A. Yes.

Wilfred Buchanan—for Plaintiff—Cross



118a

Q. Newsmen and photographers? A. I don’t know, I 
wouldn’t—

Q. I f there were people in that vicinity, they would have 
been able to—

Mr. Lauerman: I object, calls for a conclusion. 
The Court: I f you know.
The Witness: I know of one newsman who was 

behind us, when I was turned, he was laid out flat, 
what happened to him, I don’t know.

By Mr. Jacobson:

Q. I think that really isn’t responsive to the question, 
what I want to know is, whether or not other persons were 
in the vicinity of the wagon, would they have been able to 
[84] hear Father Groppi make this statement to you?

Mr. Lauerman: I would object, calls for an opin­
ion.

The Court: I f you know.
The Witness: I couldn’t answer that.

By Mr. Jacobson -.

Q. Would you say that he did use some volume? A. 
Yes, but there was volume coming out of the back of the 
wagon also.

Q. There was some volume, but you had no trouble hear­
ing Father Groppi say that? A. Definitely, not.

Q. Very clear? A. Yes.
Q. How far away from the back of the wagon, were you? 

A. Oh, I would say maybe two feet.
Q. A  couple feet? A. Yes.

Wilfred Buchanan—for Plaintiff—Cross

Mr. Jacobson: That’s all.



119a

Redirect Examination by Mr. Lauerman:

Q. If you know, what part of Father Groppi’s foot 
struck your body? A. It would have been the entire foot 
more or less.

Q. Just rather flat? [85] A. Yes.

Mr. Lauerman: All right, that’s all.
The Court: We will take a short recess.

(Court reconvened at 4:10 p.m., February 8th, 
1968.)

(Jury present.)

Mr. Lauerman: Your Honor, the State rests, sub­
ject to rebuttal.

The Court: All right, the State has presented its 
case to you and has rested subject to rebuttal, to­
morrow morning at 8:30 sharp, we will commence 
and proceed with the trial, then the defense will put 
in its case to you, then at the conclusion of that, af­
ter listening to the testimony of the witnesses for 
the State and the witnesses for the defense, then I 
will read my instructions to the jury, and then from 
the testimony on both sides, and the instructions I 
give you, you will determine the innocence or guilt 
of the defendant. So be here at 8:30 sharp, the de­
fense will put in its case, and we will conclude this 
trial.

Wilfred Buchanan—for Plaintiff—Redirect

Proceedings

February 9th, 1968.

Appearances: (Same as above noted).



120a

Motion to Dismiss

The Court: Before we call out the jury, the [86] 
State has rested, are there any motions by either side?

Mr. Jacobson: If it please the Court, at this time, 
the defense moves to dismiss the charge against 
Father Groppi, on the basis that the State has not 
proved beyond a reasonable doubt, that on August 
31st, 1967, Father Groppi in fact resisted an officer, 
pursuant to the elements required under Section 
946.41, sub section 1. The charge against Father 
Groppi as far as the resisting an officer offense, 
indicates that Wilfred Buchanan personally observed 
the defendant resist, Buchanan states when said de­
fendant was being carried to a police wagon, after 
being placed under arrest, defendant began kicking 
his legs, striking said officer with his foot, and then 
defendant stated to Buchanan a certain phrase. Now 
as far as resisting arrest, the material offense, as 
far as the actual resisting would be, the kicking of 
the legs and striking the officer in the body with his 
foot, any verbal statement that accompanied such 
physical action, in of itself, the verbal statement 
wouldn’t constitute a resisting an arrest. Therefore, 
based on the witnesses that were called, the Inspec­
tor who was the first witness, testified only regard­
ing his giving certain— reading of the Mayor’s proc­
lamation, he wasn’t at all present at the time Father 
Groppi was placed in the patrol wagon by Buchanan, 
therefore the Inspector’s testimony is all immaterial 
as to the resisting charge. Sgt. Frank Miller was 
able to [87] testify that Father Groppi did in fact, 
kick the officer in the chest with his left leg, Buchanan 
was on the ground, and that there was some verbal 
utterances. The testimony of Richard Dembowski 
was again not material to the resisting charge, that



121a

Motion to Dismiss

Dembowski was preoccupied with holding back some 
Commandoes, from the actual carrying of Father 
Groppi to the paddy wagon, and he admitted he 
wasn’t present after he was requested, or instructed 
to hold back some Commandoes, so he doesn’t know 
what happened at the paddy wagon, so his testimony 
is immaterial. Brazzoni, he testified that his back was 
to Buchanan, and he didn’t know who Buchanan was, 
his back was to Buchanan, and Miller, as they car­
ried Father Groppi to the paddy wagon, that he 
didn’t see Father Groppi kick anybody, although he 
felt a jerk, and he said that the body was twisted; 
and then he did indicate some verbal utterances, 
and then we have the testimony of Buchanan, that 
he was in fact kicked in the chest, and he indicated 
that it was by the whole foot of Father Groppi, it 
was the flat portion of the foot, and he felt the entire 
impact of the foot, it would have been on the chest. 
So as far as actual testimony in the record is con­
cerned, we have only two officers that were able to 
testify that Father Groppi kicked Buchanan, that 
would be Buchanan, himself, and Sgt. Miller. Now, 
the testimony is not clear that Father Groppi inten­
tionally [88] kicked Buchanan in the chest, and there­
fore it is the position of the defense, that the State 
has not met the burden required by the Statutes in 
question, to prove the offense of resisting an officer. 
On that basis the defense wrnuld move to dismiss at 
this time.

Mr. Lauercnan: Just one point Your Honor, ap­
parently Counsel, on the basis on which he would 
ask for dismissal, was, as he indicated, at the end 
of his statement, namely, there is no showing that



122a

Motion to Dismiss—Denied 
Opening Statement by Mr. Jacobson

there was an intentional kicking, I believe that the 
element that he is speaking of, is that in—and its 
suggested in the instructions in this case, defendant 
resisted the officer knowingly, defendant knew or 
believed that he was resisting the officer, while the 
officer was acting in his official capacity and with 
lawful authority. I think that the facts as testified 
to by the police officers, namely that Father Groppi 
did kick an officer, accompanied by the words which 
the officer testified to that were spoken, certainly 
indicates that Father Groppi did knowingly resist.

The Court: The motion to dismiss on behalf of the 
defendant is denied. Let’s proceed with the defen­
dant’s case. You reserved your opening statement 
Mr. Jacobson, do you wish to call out the jury and 
start?

Mr. Jacobson: Yes, Your Honor, all set.
(Jury present.)
[89] The Court: As I indicated to you last night, 

before we adjourned, the State has presented their 
case to you and rested, subject to rebuttal, noAV the 
defense will put in their case. Mr. Jacobson has re­
served his opening statement, which he can under 
the law, and he will now give it to you at this time, 
after that the defendant will produce its witnesses.

Mr. Jacobson: Ladies and Gentlemen of the Jury, 
as the Court has indicated to you, we reserved our 
opening statement at the beginning of this case, in 
order to present this opening statement to you, be­
fore the defense put on the witness stand the various 
witnesses that we would be calling, to elicit the evi­
dence from the defendants point of view, as to the 
events that occurred on the evening of August 31st,



123a

Opening Statement by Mr. Jacobson

1967. Now the Court will instruct you at the close 
of the case, that the opening statements of both the 
District Attorney and myself are not evidence, you 
are not to put anything that we say— an opening 
statement is merely a summary, narrative, of what 
both Counsels intend to have elicited from the wit­
nesses in the form of testimony, which in fact is 
evidence, and the facts, the evidence, that you are 
to determine the guilt or innocence of the defendant 
in relation to the charge with which he has been 
brought before you. Now, our statement of what 
occurred on the evening of August 31st, is as follows, 
and our [90] witness will testify to this fact. The night 
of August 31st, 1967, Father Groppi with several 
hundred other young people of various ages, all 
kinds of ages, got together at St. Boniface Catholic 
Church, there was a series of marches going on, at 
that time, for open housing in the City of Milwaukee, 
the Mayor of Milwaukee in fact issued a proclama­
tion banning certain demonstrations, during certain 
hours, in certain areas, in the City of Milwaukee, 
which was put into effect the night before the march 
that took place, involving Father Groppi, eventual 
arrests for resisting arrest occurred the following 
night, the second night, the night of the 31st of Au­
gust, 1967, about 7 o’clock Father Groppi, and these 
several hundred young people of all ages, they left 
St. Boniface Church, St. Boniface is on 11th and 
Clarke, they proceeded to go down 11th Street in 
a southerly direction toward North Avenue, Clarke 
is one block south o f North Avenue, one block in a 
northerly direction to North Avenue, then they 
turned toward the east, and proceeded to walk down



124a

Opening Statement by Mr. Jacobson

to 9th and North Avenue, that is as far as the March 
got, at that time there were orders to the effect, 
that the police were to stop the march, in fact that 
is when Father Groppi was placed under arrest, 
Father Groppi had gotten to North and 9th, at the 
time he was put under arrest, for violating the 
Mayor’s proclamation. The paddy wagon was sta­
tioned [91] between 9th and 10th, when the arrest was 
made of Father Groppi by several police officers. 
They began marching him back toward the paddy 
wagon, between 9th and 10th, at that time some of 
the Commandoes, and other Youth Council members 
were getting close to the officers, there was some 
commotion, Father Groppi went limp, some officers 
then picked him up, one officer that picked him up, 
picked him up by his back portion, one officer 
grabbed his leg, and another officer grabbed his other 
leg, and the three officers proceeded to carry him 
toward the paddy wagon. Now the paddy wagon was 
facing toward 9th, in other words in an easterly 
direction, so when they got towards walking him 
back to the paddy wagon, they were walking to the 
westerly side, when they got to the front of this 
paddy wagon, the officer that was on Father Groppi’s 
left leg, began, let’s put it this way, and the testi­
mony will so indicate that Father Groppi felt some 
pain on his left ankle, as a result of the pressure 
that the officer was exerting, in holding his left leg, 
whether there was gouging, or what it was, Father 
Groppi felt sufficient pain that he told the officer, 
that the other officer is hurting my left ankle, as the 
officers continued to carry Father Groppi toward the 
back o f the wagon, the pressure began in the front



125a

of the wagon, as he went to the back of the wagon, 
the pressure Father Groppi felt was of sufficient 
intensity, that he said, [92] that officer is gouging my 
ankle, I ’d like to know his name, and I ’d like to have 
his badge number, and he was then placed in the 
paddy wagon, and he repeated, I ’d like that officer’s 
name, he gouged my ankle, I ’d like his badge num­
ber, and then the doors of the paddy wagon closed, 
and while he was in the paddy wagon, he took off 
his shoe, and there were some people in the paddy 
wagon that observed Father Groppi rubbing his 
ankle as a result of what Father Groppi indicated, 
was the pressure that had been applied to his ankle, 
as he was being carried into the paddy wagon, and 
that is the defense’s case.

T e s t i m o n y  f o r  t h e  D e f e n d a n t

Father James Edmund Groppi—Defendant—Direct

Father James E dmund Groppi, called as a witness in his 
his own behalf, being first duly sworn, on oath testified as 
follows:

Direct Examination by Mr. Jacobson:

Q. Would you state your name? A. Father James Ed­
mund Groppi.

Q. And where do you reside at the present time, Father 
Groppi? A. St. Boniface Church, 11th and Clarke.

Q. And you were present in the Courtroom yesterday, 
were you not, when certain officers of the Milwaukee Police 
Department, testified to certain events that occurred on the 
[93] evening of August 31st, 1967, involving yourself? A. 
I was.



126a

Q. Were you in fact at St. Boniface Church at about 7 
o’clock on that evening, that is, on the 31st of August, 
1967? A. Yes, I believe that was the time.

Q. And what were you doing at that time, and for what 
purpose were you there? A. We had an assembly, of 
black and white people from the community, discussing the 
Mayor’s proclamation, the demonstrations, the arrest of 
Youth Council members and people of the community on 
the previous night.

Q. Were there in fact, marches occurring in the City of 
Milwaukee at that time, which you were involved? A. Yes.

Q. What were the marches all about?

Mr. Lauerman: I object, that would he immaterial.
The Court: I will overrule the objection, you may 

answer that.
The Witness: Marches were for a fair housing 

bill, to consider the right of freedom of movement 
within the confines of our country and also the last 
couple of days were also in process of what we be­
lieved the Mayor, taking our right of freedom of 
speech and freedom of assembly.

By Mr. Jacob son-.

Q. Now, did you in fact on the evening of August 31st, 
1967, [94] have a march, which began at St. Boniface 
Church? A. August 31st?

Q. Yes. A. Yes.
Q. What time did you leave the Church with this march! 

A. I don’t recall the exact time, I imagine it was between 
7 :30 and 8 o’clock, somewhere in there.

Q. And would you indicate what occurred when you left 
the Church? A. Well, we left the Church and began to

Father James Edmund Groppi—Defendant—Direct



127a

march south on 11th Street, and to march south to North 
Avenue, when we got to North Avenue, we turned east.

Q. How many persons— strike that—you marched from 
Clarke to North Avenue? A. Yes.

Q. And in what position in this march were you? A. I 
was in front of the line, with certain Youth Council mem­
bers in front of me, not too many.

Q. When you got to North Avenue, you proceeded east? 
A. That is correct.

Q. What occurred then? A. Well we proceeded east as 
far as—we didn’t get quite to 9th Street, on 10th Street I 
believe, on North Avenue, and it was then that Officer Braz- 
zoni came behind me, and placed me under arrest.

Q. Did he indicate what you were being placed under 
arrest for? [95] A. Well, the officer who was up yesterday, 
the first one, mentioned he said this over a bull-horn, I don’t 
recall, this is most likely what happened, he announced that 
we were in violation of the Mayor’s proclamation, we con­
tinued to march, we were going to City Hall by the way, 
to question the Mayor on the proclamation, then Officer 
Brazzoni placed me under arrest, taking me from behind, 
by the coat and collar.

Q. That was on 9th and North Avenue? A. That is cor­
rect.

Q. And what occurred after Officer Brazzoni had placed 
you under arrest? A. He walked me to the wagon, there 
was some scuffling behind me, I couldn’t see what was hap­
pening.

Q. You, yourself wasn’t scuffling? A. No, I was not.
Q. What happened? A. He led me to the—around the 

front of one wagon, hut then it was quite a distance from 
where he walked me east to where we had to come back 
west, around the wagon, I don’t recall how far, but as we

Father James Edmund Groppi—Defendant—Direct



128a

turned around the wagon, I went limp, and officer— Officer 
Brazzoni began to carry me from the back, and two other 
officers, one officer by my right leg, and another officer by 
the left leg, began to carry me to the wagon.

[96] Q. How far at the time that you were being carried by 
the officers, were you from the paddy wagon? A. I don’t 
recall, oh, 10, 15 yards, that is just a general estimate, I 
don’t know.

Q. What happened then? A. Well Officer Miller had me 
on the right leg, and Officer Buchanan had me on the left 
leg, and it was than that Officer Buchanan began to inten­
tionally gouge his fingers—

Mr. Lauerman: I object, it calls for an opinion 
and conclusion.

By Mr. Jacobson:

Q. Just say—

The Court: All right, I will sustain the objection, 
and then just tell if anything, what happened.

The Witness: I was being carried to the wagon, 
and Officer Miller had me by my right leg, and Officer 
Buchanan by the left leg, and Officer Brazzoni 
around the back.

By Mr. Jackson:

Q. As you were being carried to the wagon, what hap­
pened? A. My foot began to hurt, as if someone were dig­
ging their fingernails into my foot.

Q. You felt pressure being applied to your foot, by one 
of the officers? A. More than pressure, it was a scratch­
ing, and I—

Father James Edmund Groppi—Defendant—Direct



129a

[97] Q. Which Officer was that! A. Officer Buchanan.
Q. He was carrying your left leg? A. Right.
Q. Then what happened? A. I said to Officer Brazzoni, 

behind me, he is gouging his lingers into my foot.
Q. What happened then? A. He didn’t say anything, 

and the gouging continued, and as I got to the wagon, I 
said again, he is gouging his fingers into my foot, and I 
asked, what is that officer’s badge number and—

Q. Were you at the back of the paddy wagon when you 
said that? A. Yes.

Q. Then what happened ? A. Then I was placed into the 
wagon by Officer Brazzoni, Buchanan was still on my foot, 
and Sgt. Miller on the other foot, they placed me in the 
wagon, I asked again what is that officer’s badge number, 
he isn’t—I noticed he wasn’t wearing a badge, I was placed 
into the wagon, I said to Officer Brazzoni, what is that 
officer’s name, and Officer Brazzoni said, that is for you 
to find out.

Q. What happened then? A. I was in the wagon, I men­
tioned to Terry Astuto, secretary there, and—

[98] Q. Who is—were there other people in the paddy 
wagon? A. Yes, the paddy wagon was filled with people, 
in fact, I was sitting on someone’s lap, right there.

Q. You talked to someone in the paddy wagon about 
what had occurred? A. Yes.

Q. What did you say? A. I mentioned that this police 
officer was applying pressure to my foot, scratching, dig­
ging into my foot, I took off my shoe and socks and showed 
these marks to some of the people at—

Q. At that time were the doors closed? A. Of the paddy 
wagon, yes, then I took off my shoe and showed these 
marks, and then Officer Brazzoni rode on the back of the 
wagon, I believe.

Father James Edmund, Groppi—Defendant—Direct



130a

Q. You heard Sgt. Miller, and Officer Buchanan testify 
yesterday, did you not? A. Yes.

Q. And you heard him say that you had kicked Officer 
Buchanan in the chest, did you hear that testimony? A. 
Yes.

Q. Did you kick Officer Buchanan in the chest? A. No, 
I did react to the pressure placed on my leg, I say I did 
wriggle my foot and try to get my foot free, because of 
the pressure on my foot did hurt, but I did not kick [99] the 
officer in the chest.

Q. You heard the officers, that is, Miller and Brazzoni 
and Buchanan, indicate that you said, you fuckin’ son-of-a- 
bitch, I want your badge number, did you hear that? A. 
Yes.

Q. Did you say that? A. I did not use any vulgarity 
whatsoever.

Mr. Jacobson: That’s all, we rest.
Mr. Lauerman: Your Honor, the state requests a 

very brief conference in Chambers, with Counsel, 
that way the jury will not have to leave.

The Court: Pardon me.
Mr. Lauerman: That way the jury doesn’t have 

to leave.
( I n  c a m e r a )

The Court: Mr. Lauerman has asked for a con­
ference.

Mr. Lauerman: Yes, Your Honor, when Father 
Groppi started testifying, he indicated that around 
7 p.m. on August 31st, at St. Boniface Church, they 
had an assembly discussing the Mayor’s proclama­
tion, and how they demonstrated, and that it would 
probably be in violation of their constitutional rights 
to march, and some other words that I didn’t take

Father James Edmund, Groppi—Defendant—Direct



131a

down, in my words, words to the effect, it was 
against their rights, and taking away their rights, 
the State’s [100] objection at that time, the State’s 
objection was on the immateriality of that tesimony, 
when it was offered.

The Court: Right.
Mr. Lauerman: May I have Father Groppi’s an­

swer read back.
(Answer read back.)

“ Marches were for a fair housing bill, to consider 
the right of freedom of movement within the 
confines of our country and also the last couple 
of days were also in process of what we believed 
the Mayor, taking our right of freedom of speech 
and freedom of assembly.”
Mr. Lauerman: At this time we believe that testi­

mony is immaterial, in that it had only the effect of 
inciting emotions in the minds of the jurors, that it 
is not a fact in this case, and that it was of a preju­
dicial nature, and would be grounds for a mistrial, 
and the State would reserve its right to move for a 
mistrial at a later time, in this trial, on this point, 
and of course if the testimony of other witnesses, 
any other witnesses would be to the same effect, the 
State, well of course will make renewal of the same 
objection and of the same motion at that time.

The Court: All right.
Mr. Jacobson: May I respond, Your Honor, the 

[101] defense, may I respond in the record. The de­
fense’s position is that the State wants its cake and eat 
it, too, on two basis. One, prior to this trial, the De­
fense Counsel approached the Assistant District At­
torney, John Lauerman, and in fact indicated to John

Father James Edmund Groppi—Defendant—Direct



132a

Lauerman, that Defense Counsel saw no way that this 
case could be tried without the Mayor’s proclama­
tion at issue, in that the resisting arrest and the 
Mayor’s proclamation is so closely intertwined, it 
is impossible to separate out the two matters. There­
fore, the Defense Counsel asked John Lauerman, and 
talked to the District Attorney Hugh O’Connell. 
Furthermore, because the Mayor’s proclamation was 
at issue, Defense Counsel saw no way to proceed, 
without putting the Mayor of the City of Milwaukee 
under subpoena, that the Defense Counsel asked 
John Lauerman to tell that to Hugh O’Connell, and 
to ask the State to join the Defense Counsel in put­
ting the matter over, until the Federal Court had 
determined the constitutionality of the Mayor’s proc­
lamation. John Lauerman informed Defense Counsel 
that the position of— Hugh O’Connell said that the 
case should proceed on the date that it was set for, 
and the Defense Counsel should subpoena whatever 
witnesses was necessary, to establish his case, that 
is point one. Point two, Defense Counsel objected 
to the Mayor’s proclamation being put in evidence, 
during the State’s case, on the basis that it was 
immaterial, that [102] request, that objection was 
overruled, the Court specifically allowed the procla­
mation to be put into evidence. Now, the Mayor’s proc­
lamation has been put into evidence, there is 
testimony that was put in the record by two police 
officers, who knew nothing about the resisting offense, 
the Court ruled that it was material on the basis that 
it had to do with the Mayor’s proclamation, now 
Defense Counsel attempts to put in some testimony, 
by his witnesses regarding the Mayor’s proclama­

Father James Edmund, Groppi—Defendant—Direct



133a

tion, and the defense witnesses’ reaction to that 
proclamation, and the State comes in and all of a 
sudden, this is immaterial, it is prejudicial, it has 
grounds for mistrial, the State wants their cake and 
eat it, too. They want to put in all their testimony 
on the basis that the Mayor’s proclamation is a law­
ful order, and police officers wanted people to obey 
that particular proclamation, and in fact it wasn’t 
obeyed, and arrests occured, resisting followed, now 
when Defense Counsel wants testimony on that sub­
ject matter, State wants to preclude defense to do 
so, our position is that it is all very material to the 
proclamation.

The Court: We will proceed with the trial, I un­
derstand there are thin lines, but I will clear up any 
matters that may arise, so I don’t think this concerns 
either side, if Mr. Lauerman objects, and reserves 
his ruling for a mistrial, fine, I will allow that, okay.

[103] (In Open Court)
(Jury Present)
Mr. Lauerman: May I have two minutes?
The Court: All right.

Cross-Examination by Mr. Lauerman:

Q. Father Groppi, you testified that you began your march 
a little after 7, 7 :15, 7 :30? A. Yes, I don’t recall the exact 
time it was, I guess it was early evening.

Q. And you testified that you remembered a police officer 
with a bull horn, reading something? A. I don’t even re­
member that, it’s a possibility this is what happened, 
because this is what the Police Department does when it 
wants people to know about violations of some law.

Q. Were you at the front of this march? A. Yes.

Father James Edmund Groppi—Defendant—Cross



134a

Q. Do you remember seeing Inspector Ullius, or a mem­
ber of the Police Department with a bull horn? A. No, 
I don’t.

Q. You don’t remember, you don’t remember specifically, 
a police officer using a bull horn? A. No, I don’t, I ’d say 
it is quite possible that he did.

[104] Q. You say you got to 10th and North, where Officer 
Brazzoni placed you under arrest? A. Between 9th and 
10th and North, yes.

Q. Were you still at the head o f the line, at that time? 
A. Yes, I  was.

Q. And did he tell you, that he was placing you under 
arrest for the violation of the proclamation? A. Yes, I 
believe he did.

Q. Was he the only officer in your immediate presence at 
that point? A. Yes, I could not see behind me, he had a 
very firm grip on the back o f my coat, I couldn’t turn 
around.

Q. He stated words to the effect, Father come with me 
so you won’t get hurt? A. Yes, he said something, Father 
don’t worry, no one is going to hurt you, and he grabbed 
me very firmly.

Q. And he directed you to go with him? A. Yes.
Q. And then did he alone, begin to walk you toward the 

wagon? A. Yes.
Q. Now did any scuffle ensue in the immediate presence 

of yourself and Officer Brazzoni? A. I did not see any, 
I could not turn around, there was some scuffling going 
on behind me, as soon as Officer Brazzoni grabbed me, 
but I could not see what went on [105] behind me.

Q. Did Officer Brazzoni have you by one of your arms! 
A. Not at this particular point, I don’t believe, he just 
had me very firmly, behind the coat and by the collar.

Father James Edmund Groppi—Defendant—Cross



135a

Q. Did anyone grab you by either of your arms! A. I 
don’t recall.

Q. It could have happened? A. Could have happened.
Q. Did you feel some tugging going on with your body, 

by any individuals! A. I don’t recall.
Q. You don’t recall that, how far were you would you 

estimate from the wagon when Officer Brazzoni first placed 
you under arrest? A. It was quite a distance, I couldn’t 
give an exact estimate of the distance, I remember we 
walked further east on North Avenue, and then, I believe 
we walked around one police wagon, we had to come to a 
second one, that was parked behind it, so we walked east on 
North Avenue around some vehicle, and walked west on 
North Avenue to another vehicle.

Q. Okay, I ’d like to ask you this question, how far did 
you walk with Officer Brazzoni, before you went limp? 
A. Oh, I would give an estimate of approximately 20, 30 
yards, I could not give an exact distance here.

[106] Q. And after walking with Officer Brazzoni for 20 or 
30 yards, what caused you to go limp, why did you go limp?

Mr. Jacobson: I object to that Your Honor, it’s 
not material.

The Court: Overruled, you may answer that.
The Witness: I was arrested a number o f times 

in Civil Bights demonstrations, going limp, does not 
constitute resisting arrest, and I went limp.

By Mr. Lauerman:

Q. Did you sit on the pavement? A. Well, when you go 
limP> you just let your body go limp, I don’t think I reached 
the pavement, Officer Brazzoni prevented me from com­
pletely going to the pavement.

Father James Edmund Groppi—Defendant—Cross



136a

Q. And then Officer Brazzoni grabbed the upper part 
of your trunk, of your body? A. My chest, yes.

Q. And Sgt. Miller and Officer Buchanan grabbed your 
legs? A. Right.

Q. One on each leg? A. Right.
Q. How far from the wagon were you at this time? 

A. I would say, about 20 yards.
Q. After Officer Brazzoni, and Sgt. Miller and Officer 

Buchanan picked you up, to take you the rest of the way 
to the wagon, did you kick at all, on the way to the wagon?
[107] A. No, I did not.

Q. You didn’t kick at all? A. No, I did not.
Q. Did your body squirm? A. No, I did not, I went 

limp.
Q. In other words you— it’s your testimony that you re­

mained entirely limp? A. Limp.
Q. Didn’t really move? A. I did not move, or wiggle, 

or try to get away from the police officers, I went limp.
Q. How many hands— strike that— did Sgt. Miller use 

both of his hands to maintain his grip upon you? A. I 
don’t remember, he had me by the right leg, whether or 
not he had both hands on me, I don’t recall.

Q. Did he have you high on your leg, up above the knee, 
or down near your ankle? A. I don’t recall that either, 
I know he had my right leg.

Q. Did he have anything else in either of his hands? 
A. I don’t recall.

Q. Did Officer Brazzoni, did you feel Officer Brazzoni 
change his grip upon you at any time, during the course 
of your walk to the wagon? A. Well no, after I went limp, 
he took me by the chest, I  didn’t feel anything.

[108] Q. Did you feel him losing his grip upon you at any 
time? A. No.

Father James Edmund Groppi—Defendant—Cross



137a

Q. Would you have slipped from the grip that he had 
on you, at any time? A. No.

Q. In other words he maintained one steady grip? A. 
Yes.

Q. Did Sgt. Miller lose his grip on your right leg at any 
time, that you can remember? A. No, not that I can recall.

Q. Did Officer Buchanan lose his grip on your left leg 
at any time that you can remember? A. No.

Q. On your way to the wagon? A. No.
Q. You were wearing normal clothing, is that correct, 

in other words you had pants, shoes and socks—  A. I was 
dressed.

Q. Just about like you would be, here in Court? A. 
Right.

Q. So you were fully clothed? A. Certainly.
Q. Then as you got to the wagon, you felt this discom­

fort, is that correct? A. I felt a gouging in my foot with 
fingernails.

[109] Q. Well now, you said you felt gouging with finger­
nails, did you see anybodies hands, did you see the hands that 
were holding your legs? A. Yes, I did.

Q. You could see them? A. Yes.
Q. So your head was higher than your legs? A. Yes.
Q. You were on a slant? A. Right.
Q. With your head higher than your feet? A. Right, 

Officer Brazzoni is much taller than Officer Buchanan.
Q. Did Officer Buchanan have anything in his hands? 

A. Not that I recall, he had both arms around my foot, his 
hands at the end of my leg.

Q. You say both arms around your feet? A. No, he had 
his hands around my ankle.

Q. Was he just holding you, within his hands? A. Some­
thing similar to the motion that you just made.

Father James Edmund Groppi—Defendant—Cross



138a

Q. In other words holding kind of like this? A. Right.

Mr. Jacobson: Would you describe that, for the 
record.

Mr. Lauerman: For the record, I am extending 
my hands before my body, just my hands, in a 
fashion whereby [110] you would hold a round object 
in your hands.

By Mr. Lauerman:

Q. When you first felt something at your left foot, did 
you begin moving that leg, your left leg? A. I wiggled it 
slightly.

Q. And I think it was your testimony, that you asked 
Officer Brazzoni, or told, Officer Brazzoni what was hap­
pening? A. Yes, I said, hey, that police officer is digging 
his fingers into my foot, I told him to stop it.

Q. Did Officer Brazzoni hear you, or do you know? 
A. He sure did.

Q. He did, was there a lot of noise around the wagon? 
A. Somewhat, not too much.

Q. Was there noise coming from the direction from 
where the rest of the marchers would be, at this time? 
A. There was some noise, but he could hear very distinctly, 
there wasn’t that much noise.

Q. And you told him twice, is that—was that your testi­
mony, before you got to the back o f the wagon? A. Yes, I 
don’t recall how many times I said it, hey, that police 
officer is digging his fingernails into my foot, tell him to 
stop it, and then saying, what is his badge number, but 
he was not wearing a badge, makes it very difficult to 
identify people.

Q. Wouldn’t he had to, if he was using his hands in the 
manner [111] you described, wouldn’t this he through your 
sock? A. Pardon?

Father James Edmund Groppi—Defendant—Cross



139a

Q. Would this be through your socks, that he was doing 
this? A. Yes.

Q. All right, now when you got to the back of the wagon, 
was the door of it open? A. Yes, I believe so.

Q. You said when you got into the wagon, it was tilled 
up? A. Correct.

Q. So if the door was opened when you got there, you 
probably saw individuals in the wagon, as you were behind 
the wagon, is that correct? A. I was placed in, back first.

Q. So you didn’t see—  A. I didn’t see much, or who was 
in there.

Q. As you came around the corner to the back of the 
wagon, were you able to observe into the wagon? A. No, 
I was looking at my foot, and complaining to the officer 
who was carrying me, something was happening to my 
foot, I wasn’t paying too much attention to the wagon.

Q. Did you hear any voices coming from the wagon? 
A. I wasn’t paying attention to that, I don’t recall.

Q. Was there noise at that place, behind the wagon, in 
other words, was there a lot of noise behind the wagon, as 
you got there? [112] A. I don’t recall, there was some noise in 
the area, because of all the arrests going on, but I don’t 
recall how noisey it was.

Q. Now, you freed your left leg, before Officer Buchanan 
released his grip, is that correct? A. No.

Q. So it is your testimony, that he entirely released his 
grip upon you before— strike that— isn’t it a fact, that you 
did pull your left leg from Officer Buchanan, before he 
released it? A. No.

Q. And isn’t it a fact also, that you did kick out with 
your left foot? A. No.

Q. Did you see Officer Buchanan on either his left, or 
right knee, at any time? A. No.

Father James Edmund Groppi—Defendant—Cross



140a

Q. You didn’t see him, in a crouched position? A. No, 
after I was—

Q. Just answer the questions Father. It is your testi­
mony that your foot did not make contact with his chest at 
all? A. That is correct.

Q. And it is your testimony, you at no time, used any 
words that may be characterized as vulgar? A. That is 
correct.

[113] Q. Just before being placed in the wagon, did you 
make a sudden movement of your body? A. I don’t recall, I 
know I was wiggling my foot, and trying to get it away from 
the gouging in my ankle.

Q. Now wiggling, wouldn’t ordinarily— A. I don’t recall, 
how did you explain it, jerking foot?

Q. A  jerking motion with your body, you don’t recall 
making one? A. That is correct.

Q. Normally, just wiggling a foot couldn’t cause a sudden 
jerk of the body? A. This is true.

Q. Did Sgt. Miller also release his grip of you, prior to 
you being put into the wagon? A. Not prior to, and I was 
placed in the wagon, then the officers released me.

Q. Well did they, the three officers, sort of lift you up 
into the wagon? A. That is correct.

Q. And you went right into the wagon? A. Right.
Q. So then at no time did your feet touch the ground! 

A. No.
Q. And while they were lifting you into the wagon, did 

either your left foot, or your right foot, go below the waist 
of [114] Officer Miller and Officer Buchanan, in other words, 
did they put your feet down a little bit, down towards ground 
level? A. I don’t recall, I remember Brazzoni was on my 
back lifting me backwards in the wagon, the other officers 
were on my feet, and that is the way I went in.

Father James Edmund Groppi—Defendant—Cross



141a

Q. Did you, at any time, direct any statement toward 
Sgt. Miller at the wagon? A. I did not.

Q. Sgt. Miller had a uniform on that night, is that cor­
rect, Father? A. Yes.

Q. And it showed his sergeant stripes, isn’t that correct? 
A. I believe so.

Q. Normally, wouldn’t you make any complaint that you 
might have, to the sergeant?

Mr. Jacobson: I don’t understand that question, 
I don’t think it is, you know, specific enough in terms 
of what you’re talking about.

By Mr. Lauerman:

Q. You testified Father, you told Officer Brazzoni, about 
certain goings on, as you were being carried to the wagon? 
A. I did not think about it, my foot was hurting from the 
gouging, I made the remark to Officer Brazzoni.

Q. Did you refer to Officer Brazzoni by name? [115] A. 
No, I didn’t know his name, at that time.

Q. Well, did you turn your head backwards, so you were 
facing him? A. No, I don’t recall doing that either, I said, 
he is gouging my foot with his fingers, into my foot.

Q. Well then, how would you—why did you testify that 
it was Officer Brazzoni to whom you directed your com­
ment? A. Because I felt I was talking to him, he talked to 
me earlier, don’t worry Father, no one is going to hurt you, 
I thought I would take him up on his assurance.

Q. Isn’t it true, that what he said earlier to you was, he 
asked you to walk with him to the wagon? A. I don’t think 
he said walk with me to the wagon, he said Father you’re 
under arrest and he grabbed me behind the collar, and 
then there was some kind of a bump behind me, knocking,

Father James Edmund Groppi—Defendant—Cross



142a

he said, don’t worry Father, no one is going to hurt you, 
according to his testimony, it was some Youth Council 
member.

Q. Didn’t he say, come with me, nobody is going to hurt 
you? A. Yes, something like that, come with me Father, 
no one is going to hurt you, I thought, police officer, cer­
tainly the Youth Council member was not going to hurt me.

Q. But certainly, at that time, the understanding was 
that you would walk with Officer Brazzoni, isn’t that cor­
rect? A. He did not say that I should walk with him.

[116] Q. And you can understand, can’t you, if you do go 
limp, and people have to pick you up—

Mr. Jacobson: I am going to object to the form 
of your question.

By Mr. Lauerman:

Q. Isn’t it correct, if you do go limp, and it is going to 
require several officers to pick you up, and it is going to 
be a little bit more difficult for things to be handled in a 
manner that you think—

Mr. Jacobson: I object, it calls for a conclusion.
The Court: Answer if you can, if you can’t answer 

it, you can’t.
Mr. Jacobson: It’s repetitious, all—
The W itness: I did not think of it at this time.
Mr. Lauerman: That’s all.
The Court: You’re excused.

Father James Edmund Groppi—Defendant—Cross



143a

Terry A stuto, called as a witness on behalf of the De­
fendant, being first duly sworn, on oath testified as follows:

Direct Examination by Mr. Jacobson:

Q. Would you state your name! A. Terry Astuto.

The Court: How do you spell that last name?
The Witness: Astuto, A-S-T-U-T-0 (indicated 

spelling).

[117] By Mr. Jacobson:

Q. Where do you live Terry? A. 1527 North Marshall 
Street.

Q. Is that in the City and County of Milwaukee, State of 
Wisconsin? A. Yes, it is.

Q. Did you have occasion to be placed in police custody, 
on the night of August 31st, 1967, for violation of the 
Mayor’s proclamation? A. Yes.

Q. And where were you placed in custody, when you were 
arrested for violating the Mayor’s proclamation? A. On 
North Avenue, between 9th and 10th Street.

Q. Did you have occasion to be placed in some police 
conveyance, during the course of that evening? A. Yes.

Q. What kind of a conveyance were you placed in? 
A. That—I think they call it a paddy wagon.

Q. Where was that paddy wagon located on that night? 
A. It was on North Avenue, between 9th and 10th, a little 
bit east, of where I was arrested.

Q. Where were you in the paddy wagon, when you were 
placed inside of it? A. I was the last one, on the right 
side, in other words not the driver’s side, in the back of the 
door.

Terry Astuto—for Defendant—Direct



144a

[118] Q. Could you state, whether that paddy wagon had a 
number of occupants in there? A. Yes, it had very many.

Q. Could you tell me, in terms of capacity, was it filled, 
half filled, or— A. It was more than full.

Q. And when you were in that paddy wagon, where you 
indicated you were placed, in that paddy wagon, did you 
have occasion— strike that— about what time of the evening 
was that, do you recall? A. It was approximately 7 :30.

Q. 7:30, 8 o’clock? A. No, 7:30.
Q. Now you were present in the Courtroom, were you 

not, when police officers testified as to certain arrests that 
took place in the vicinity of 9th and 10th, on West North 
Avenue, for violation of the Mayor’s proclamation? A. 
Yes, I was.

Q. Is that what you were in custody for? A. Yes.
Q. Inside the paddy wagon, did you have occasion to see 

Father Groppi at any time, while you were inside of the 
paddy wagon? A. Not until he was brought to the rear 
of the wagon.

Q. Did you have occasion to see him then? [119] A. Yes, 
I  did.

Q. And could you describe exactly, when you first saw 
Father Groppi, what position was he in? A. He was being 
held by some officers.

Q. What were the officers doing with him? A. They 
were carrying him to the wagon.

Q. And you saw that? A. Yes.
Q. Did you see the officers carry Father Groppi to the 

paddy wagon? A. No.
Q. In other words did they—  A. When he got to the 

rear of the wagon.
Q. The officers came around from the side of the paddy 

wagon? A. You see the doors had been closed before, then

Terry Astuto—for Defendant—Direct



145a

when they opened, you could see Father out there, you 
couldn’t see—we saw him coming towards us.

Q. When the doors were open, you did see Father 
Groppi? A. Yes.

Q. Was he in a horizontal position, were the officers 
holding Father Groppi in a horizontal position when you 
first saw him? A. Yes.

Q. And what happened after you saw him in that posi­
tion? A. Well then, they brought him closer to the wagon, 
the officer [120] carrying the top part of the body, put his 
back up against the wagon, put it—that is just where it would 
have gone, some of us pulled him by the shoulders, and then 
he was just lifted into the wagon.

Q. And did you have—were there several officers carry­
ing Father Groppi to the paddy wagon? A. Yes.

Q. Now when you were looking at Father Groppi being 
hoisted into the— or being lifted into the paddy wagon, 
did you have an occasion to get a good full view of Father 
Groppi, at that time? A. Yes, I was standing by that 
time.

Q. You heard the officers testimony in this Courtroom 
yesterday, did you not? A. Yes, I did.

Q. One of the officers testified, he was holding Father 
Groppi’s left leg, at the time they got to the back of the 
paddy wagon, he kicked his leg loose, and he brought it 
back, and he kicked this particular officer in the chest, and 
that the officer went down on one leg, did you hear that 
testimony? A. Yes.

Q. Did you see anything like that happen? A. No, I 
didn’t observe anything like that.

Q. Did you see Father Groppi kick any officer? [121] A. 
No, I didn’t.

Q. You heard several officers testify as to some vulgar­
ities that Father Groppi was to have uttered at the police

Terry Astuto—for Defendant—Direct



146a

officer that had placed him in the paddy wagon? A. Yes, I 
heard.

Q. Did you hear any such vulgarities? A. No, I didn’t.
Q. Did you hear any conversation between the officer 

and Father Groppi at all? A. Yes.
Q. Would you state what that conversation was? A. The 

first thing, he was coming—or to the wagon, Father said, 
that man is gouging out my foot, the man is gouging out 
my foot, I want that man’s badge number.

Q. You heard Father Groppi say that? A. Yes.
Q. Was that fairly loud, could you hear that? A. Yes.
Q. And then did you hear any other conversation? A. 

Not until after he was placed in the wagon.
Q. After Father Groppi was placed in the wagon, then 

what happened? A. Then the doors were closed, and Officer 
Brazzoni, I didn’t know him then, he got on the back, and 
Father was looking out the window, and Officer Brazzoni 
said to him, what’s [122] wrong Father, are you nervous, 
and Father said, that man was gouging out my foot, I want 
that man’s badge number, what is his name, and the officer on 
the back said, that is for you to find out Father.

Q. Did you see Father Groppi do anything else when 
he was placed in the paddy wagon? A. Yes, as soon as lie 
got in, he took off his shoe, and pulled his sock down.

Q. And what? A. Pulled his sock down.
Q. Did he say anything? A. Father said, look at that, 

that man was gouging my foot.
Q. Did you take a look? A. Yes, I did.
Q. All right, at any time, that you had an opportunity 

to observe Father Groppi, from the time that he was 
brought to the paddy wagon, and the door was open, did 
you hear Father Groppi swear at anybody? A. No.

Terry Astuto—for Defendant—Direct



147a

Q. And did you see him kick any officer? A. No.

Mr. Jacobson: That’s all.

Cross Examination by Mr. Lauerman:

Q. Is it Miss or Mrs. Astuto? [123] A. Miss.
Q. You say you were one of the last ones, put into that 

paddy wagon? A. I was not one of the last ones, but I was 
the last one seated.

Q. The last one seated? A. Yes.
Q. Were several more placed after you? A. Yes, that’s 

true, they were thrown to the back.
Q. Where was this seat that you say you were sitting 

on? A. Well, the only way I can describe it, I was on the 
side of the wagon, opposite o f the driver’s side, I was in the 
back, on the bench, the last one next to the door.

Q. And so, your back would be— A. My back would be, 
have been facing south.

Q. It would be facing the side of the paddy wagon? A. 
That is true.

Q. And you were looking in the direction of the others? 
A. If it had, had normal capacity, it was—I was tilted to 
the side, so my vision would have been more easterly.

Q. More towards the back of the wagon? A. Yes.
Q. Now was the door, did the door remain open during 

the—did the doors of the paddy wagon, the rear doors, 
remain open during the entire time the people were being
[124] brought in? A. No, they were— the wagon was filled, 
and the doors were closed, and they opened, and they threw 
in one of the Commandoes, and they closed the doors, and 
another one— and then they opened them again, and the 
next person in, was Father Groppi.

Q. So you say the doors were closed prior to Father

Terry Astuto—for Defendant—Cross



148a

Groppi being led to the back of the wagon? A. That is 
correct.

Q. And then they opened the doors just before Father 
Groppi was put in? A. When they opened the door, Father 
wasn’t there yet, there were approximately 10 policemen, 
there could have been some one else, I just saw the police­
men.

Q. Now was anyone standing in the wagon, between your­
self and the rear door of the wagon, in other words, was 
anybody obstructing your view to the rear of that wagon, 
at all? A. No, they couldn’t have, if they wanted to.

Q. Were a lot of people within the wagon saying things? 
A. Yes, they were.

Q. Would you say there was a lot of noise coming from 
that wagon ? A. There was noise, I wouldn’t say—it wasn’t 
a great noise, there was a noise.

Q. A lot of hubbub, lot of comments, and what not?
[125] A. Well, mostly singing freedom songs.

Q. Do you have an estimate of about how many people 
were in that wagon? A. Well, an estimate would be, there 
might have been 15 or 16,1 really don’t know.

Q. Could have been more? A. I don’t think it could have 
been more, it could have been a couple less, it seemed very 
full.

Q. And they were singing, some were looking out the 
windows, depends on what you did.

Q. Were you singing songs? A. No, I was not singing
songs.

Q. What were you doing just prior to the time that you 
saw Father Groppi behind the wagon? A. I was looking out 
the window.

Q. Looking out the rear window? A. Yes, that was a 
little fence.

Terry Astuto—for Defendant—Cross



149a

Q. When after the doors were open and you saw Father 
Groppi coming, being carried behind the wagon, how many 
officers were carrying Father Groppi? A. I couldn’t tell, 
there were too many.

Q. So there were several police officers standing behind 
the wagon? A. Yes.

[126] Q. Now, if you don’t know how many officers were 
carrying Father Groppi, and if there were a lot of officers 
standing behind the wagon, then at certain times during 
which Father Groppi was behind the wagon, your view 
could have been obstructed, is that correct? A. No, it isn’t.

Q. Then if your view wasn’t obstructed, you would nor­
mally know, how many were carrying him, isn’t that cor­
rect? A. I just didn’t notice.

Q. You just didn’t notice how many were carrying him? 
A. That is correct, I knew one, by the top—what else was 
being done to him—but my view wasn’t obstructed at all.

Q. Did Officer Brazzoni who was carrying the top part 
of his body, at any time, obstruct the view of the rest of 
Father Groppi? A. I am not sure, I wouldn’t say he did.

Q. But you’re not sure? A. I don’t recall he did.
Q. But he could have obstructed your view of Father 

Groppi somewhat, at some part of that time, isn’t that 
correct? A. He could have obstructed a little, they were 
carrying Father, however, they got Father to the wagon, so 
there were no police, Father’s head was on the wagon, he 
couldn’t have obstructed my view, in other words, he was 
over to [127] the side by that point.

Q. Now as they lifted Father Groppi up into the wagon, 
you got up to help? A. That is correct.

Q. And other people within that wagon came to help to 
lift him into the wagon also? A. That is correct.

Q. So we could safely say you were mainly interested in

Terry Astuto—for Defendant—Cross



150a

helping him to get in—into the wagon at that point in time? 
A. That is correct.

Q. So you were not really looking at, for instance, the 
police, and feet, as much as you were to get a good grip on 
the top part of his body, that Officer Brazzoni was lifting 
into the wagon? A. Well, I suppose you could say that, 
but I would have noticed anything unusual in motion.

Q. Now is it your testimony that he didn’t twist at all? 
A. There were body movements.

Q. There was kicking? A. I wouldn’t call it—
Q. Well he was— A. His body was making movements, 

that is correct.
Q. But that is not— A. In other words I couldn’t see 

any voluntary action on [128] Father’s part, he wasn’t mov­
ing, but his body was.

Q. You say that you would probably, normally, notice 
anything unusual? A. That is correct.

Q. You might not have? A. I think it would have been 
—it’s kind of inconceivable to me not having noticed some­
thing.

Q. You think you would have? A. I—put it this way, I 
am morally certain I would have seen something.

Q. But here you’re trying to get a grip on Father 
Groppi’s shoulder, and what not, yet you could observe 
everything? A. I could, that was happening with Father.

Q. You think you could? A. I feel pretty morally cer­
tain I could have.

Q. Now, there was singing you said, coming from within 
the wagon? A. It stopped when they started bringing 
Father over.

Q. Were there any shouts coming from within the wagon, 
directed out of the wagon, as Father Groppi came up? A. 
Yes.

Terry Astuto—for Defendant—Cross



151a

Q. There was quite a few, weren’t there? A. There were 
a number, yes.

Q. And there was some loud ones, weren’t there? A. I 
wouldn’t—I mean shouts, I wouldn’t say, any louder [129] 
than a normal shout.

Q. A  shout? A. Right.
Q. And so, if Father Groppi— strike that— so if these 

shouts that were coming from within the wagon, and pos­
sibly you may—would not have heard all the things, the 
things that Father Groppi said? A. It would have been 
physically impossible to have heard what Father said at 
that particular moment.

Q. With all the shouts? A. That is true, that is correct.
Q. And was there commotion just outside the door of the 

wagon? A. There was not too much, only police officers 
there.

Q. Were any of the police officers speaking? A. I didn’t 
notice that, I don’t imagine they were keeping perfectly—I 
didn’t notice any noise coming from them.

Q. You didn’t notice whether they were talking? A. No, 
I didn’t.

Q. Did you notice what they were doing? A. Most of 
them were—well most of them were trying to get Father 
into the wagon, and they were just around, I don’t—

Q. By most of them, how many did you observe? A. 
Still approximately 10 that I— approximately 10 that were 
there, you see when they opened the wagon doors, [130] they 
were suppose to keep us in—I don’t know— then they brought 
Father.

Q. You don’t know whether they were saying anything? 
A. Well, I didn’t think about it.

Q. You didn’t think they were saying anything? A. That 
is correct.

Terry Astuto—for Defendant—Cross



152a

Q. So you didn’t hear the officers saying anything, and 
there were shouts coming from within the wagon, and yet 
it’s your testimony, you are sure that you heard every single 
word that Father Groppi said? A. I am positive, every 
single word.

Mr. Lauerman: That’s all.

Charles R. Morgan—for Defendant—Direct

Charles R. Morgan, called as a witness on behalf of the 
defendant, being first duly sworn, on oath testified as 
follows:

Direct Examination by Mr. Jacobson:

Q. State your name? A. Charles R. Morgan.
Q. And where do you reside, Mr. Morgan? A. Whitefish 

Bay, Wisconsin.
Q. And you’re employed at the present time? A. I am.
Q. Where are you employed? [131] A. I am a reporter for 

the Milwaukee Journal.
Q. For how long have you been employed for the Mil­

waukee Journal? A. Since, January 20th, 1964.
Q. And were you so employed on August 31st, 1967 ? A. 

I was.
Q. And during the course of your employment, did you 

have an assignment that evening? A. I did.
Q. And where was that assignment? A. To cover the 

open housing demonstrations.
Q. And did you in fact, cover the open housing demon­

stration that evening? A. I did.
Q. Were you present at St. Boniface Church, or the 

area where this open housing march, or demonstration oc- 
cured on that evening? A. I was.



153a

Q. Did you have occasion to walk along with the marchers 
as they left St. Boniface Church and proceeded in the route 
they were traveling that evening? A. I did.

Q. Were you in the vicinity of 9th and 10th on West North 
Avenue, during that evening? A. I was.

[132] Q. And were you present when certain arrests were 
made that evening for violation of the Mayor’s proclama­
tion? A. I was.

Q. Did you have occasion to see Father Groppi during 
that period of time? A. Yes.

Q. When was the first time you saw him? A. When he 
left St. Boniface Church.

Q. Between 9th and 10th, on West North Avenue, did 
you have occasion to— strike that—when is the first time 
you saw him? A. In the line of march, when a police 
officer seized him.

Q. Could you describe to the jury what happened when 
this police officer placed him under arrest? A. Father 
Groppi was walking in, I would say about 6th or 7th back, 
in the line of march, the officers were ordered to make 
arrests, they entered the line o f march, they seized Father 
Groppi, and others, many of the marchers—

Q. Just stop there, now after they had Father Groppi 
in custody, what did they do with Father Groppi? A. My 
attention at that point, was distracted by other incidents.

Q. Then did you have occasion to see Father Groppi 
again? A. I did.

Q. What did you see at that time? [133] A. The next occa­
sion I saw Father Groppi, when he was standing in this 
center of the street, with several other officers.

Q. And what occurred at that time? A. Father Groppi 
went limp.

Q. Would you describe what you saw when he went limp?

Charles R. Morgan—for Defendant—Direct



154a

A. He relaxed his body, and the officers around him, three, 
if I recall correctly, picked him up.

Q. Did Father Groppi sit on the street? A. He did not.
Q. In other words, as he went limp he fell into the 

officers arms, and he picked him up? A. That is correct.
Q. Did you have occasion to see what the officers did with 

Father Groppi? A. They carried him bodily toward the 
patrol wagon.

Q. All right, then what happened? A. My attention at 
this time was distracted.

Q. All right, did you have occasion to see Father Groppi 
subsequent to that time? A. I did.

Q. And when was that? A. At the very moment he was 
being hoisted into the paddy wagon.

Q. You did see that? A. Yes.
[134] Q. And did you hear, did you hear Father Groppi 

hurling any vulgarities, or did you hear him utter, any vul­
garities, at that time? A. At no time when I was in the 
vicinity, did I hear him use any profanity.

Mr. Jacobson: That’s all.

Cross Examination by Mr. Lauerman:

Q. Now, Mr. Morgan let’s get to the time when you saw 
Father Groppi being hoisted into the patrol— or the paddy 
wagon, about how far were you, when you observed this 
taking place ? A. At the time he was being hoisted in the 
paddy wagon, I was standing on the sidewalk, which I esti­
mate is 15 to 20 feet from where the paddy wagon was 
parked.

Q. Could you, would it be fair to say, there was a lot 
of commotion at the rear of that paddy wagon, and noise 
coming from within the paddy wagon? A. There was 
commotion throughout the area.

Charles R. Morgan—for Defendant—Cross



155a

Charles R. Morgan—for Defendant—Redirect 
Michael S. Crivello—for Defendant—Direct

Q. So, Father Groppi could have said things that you 
couldn’t have heard? A. He could have.

Mr. Lauerman: That’s all.

Redirect Examination by Mr. Jacobson:

[135] Q. Are you a member of the NAACP? A. No, I am 
not.

Q. Were you placed under arrest for any—

Mr. Lauerman: I object, immaterial.
The Court: Overruled, you may answer.
The Witness: I was not.

By Mr. Jacobson:

Q. You were strictly there as a Milwaukee Journal 
Reporter? A. That is correct.

Mr. Jacobson: All right, that is all.

M ichael S. Crivello, called as a witness on behalf of 
the defendant, being first duly sworn, on oath testified 
as follows:

Direct Examination by Mr. Jacobson:

Q. State your name? A. Mike Crivello.
Q. Where do you reside? A. 4680 North 51st Boulevard. 
Q. Is that in the City and County of Milwaukee? A. 

Yes.
Q. Are you employed at the present time? A. Yes, 

I am.
Q. Where are you employed? [136] A. Chief Photogra­

pher, WISN, TV 12.



156a

Q. Were you so employed on August 31st, 1967? A. Yes, 
I was.

Q. Are you testifying here, under subpoena? A. Yes, 
I am.

Q. Now did you have an assignment on the evening of 
August 31st, 1967, in regard to the duties you performed 
for your television station? A. Yes, I did.

Q. What was that assignment? A. To cover the demon­
strations.

Q. What demonstrations? A. At St. Boniface.
Q. Did you so cover the demonstrations on the evening 

in question? A. Yes, I did.
Q. Did you have occasion to be present in the vicinity 

of 9th and 10th, on West North Avenue, on the evening of 
August 31st, 1967? A. Yes.

Q. Did you see Father Groppi at any time? A. Yes, I did.
Q. Tell the jury, the circumstances when you saw Father 

Groppi ? A. The first time I saw Father Groppi was on 9th 
and 10th.

Q. In that area between 9 and 10th on West North Ave­
nue? [1373 A. I had a sound camera on my shoulder, and 
when I— the first time I saw him, had any occasion to look for 
him, I heard some noise, and I looked in the general direc­
tion of the noise, and I could see that someone was being 
arrested, looked like, that is a conclusion on my part, 
looked like somebody was being arrested, I ran to the 
area that Father Groppi had been taken into custody, that 
is the first time.

Q. Did you have occasion to see him again after that? 
A. Yes, I followed, I believe we turned east and I had the 
camera on him, then we turned west, and I lost him.

Q. When you say you followed him, could you describe 
under what circumstances Father Groppi was in, at that

Michael S. Crivello—for Defendant—Direct



157a

time? A. The first time I saw Father Groppi, he was walk­
ing, and the next time, he was being carried, I did not
see—

Q. By several police officers? A. I can’t even recall by 
how many.

Q. But he was being carried by some police officers? 
A. Yes, he was.

Q. Go ahead, what happened after you lost contact, did 
you have occasion to see him again? A. Yes I—I lost con­
tact two or three times, he would go one way, turn around, 
you couldn’t follow, I picked a spot at the paddy wagon, 
about 15 feet away, I organized myself, they brought Father 
Groppi around, and placed him in the [138] paddy wagon. 

Q. You did have occasion to see that? A. Yes, I did. 
Q. Did you see him, trying to, or kick any police officer 

at that time? A. No, I didn’t.
Q. Did you hear him shout any vulgarities ? A. I heard a 

lot of noise I couldn’t— difficult whether any vulgarities or 
not.

Q. From Father Groppi ? A. I wouldn’t say from Father 
Groppi, there was a crowd there.

Q. Were you in a position to see Father Groppi when 
he was being placed in the paddy wagon? A. I saw nine, 
ten percent of it.

Q. You didn’t see him kick any police officer in the chest? 
A. I wasn’t looking necessarily in that direction.

Q. Did you see him kick any police officer in the chest, 
when you were, looking in that direction? A. No, I didn’t.

Q. Did you finish your assignment that evening? A. 
No, I didn’t.

Q. What happened? A. I was struck by something, or 
someone.

Q. What manner? [139] A. Pardon me?

Michael S. Crivello—for Defendant—Direct



158a

Q. What manner? A. I received some injuries to my 
stomach and head, my camera, I don’t know—pushed, or I 
hit it with my knee, and it hit me in the head, and I was 
unconscious for about five minutes.

Mr. Jacobson: That’s all.

Cross-Examination by Mr. Lauerman:

Q. Mr. Crivello, I believe it is your testimony that when 
you did come behind the paddy wagon, you stationed your­
self about 15 feet away? A. Yes, I did.

Q. You said you heard a lot of commotion, lot of noise 
coming from the direction of the paddy wagon, is that 
correct? A. That is correct.

Q. Did you hear any vulgar words used? A. I heard 
some, yes, but they were said from behind me.

Q. They were from behind you, not necessarily coming 
from the paddy wagon? A. I couldn’t say, but I would 
think they were behind me.

Q. But from your position, and because of the noise and 
the commotion, would it be safe to say, you wouldn’t have 
heard a lot of things that Father Groppi might have said? 
[140] A. That is true.

Q. And there were several police officers in the immediate 
vicinity of the back door of the paddy wagon, is that 
correct? A. That is correct.

Q. In fact two of them as they carried Father Groppi to 
the hack of the paddy wagon, had him by his legs, is that 
correct? A. I really don’t know, I was looking in all direc­
tions, I usually point the camera in the direction of the 
activity and look around, I didn’t even—to tell you the 
truth, I didn’t see that much of it.

Q. I see, so then we are safe to say, you may have missed

Michael 8. Crivello—for Defendant—Cross



159a

a lot of the action behind the paddy wagon? A. That is 
correct.

Michael S. Crivello—for Defendant—Cross

Mr. Lauerman: That’s all.
Mr. Jacobson: Could we release Mr. Morgan and 

Mr. Crivello from under the subpoena?
The Court: All right. We will take a short five- 

minute recess, for the benefit of the ladies and gentle­
men of the jury.

(Thereupon a recess was taken.)

(Court reconvened.)

(Jury Present.)

Mr. Lauerman: I would like Your Honor, at this 
time [141] the question and answer that was objected 
to, reread, in the—in Father Groppi’s direct examina­
tion, the question of his Counsel, Mr. Jacobson, con­
cerning what was discussed at an assembly on Au­
gust 31st, 1967, at approximately 7 p.m., the objec­
tion is on the answer that was given.

Mr. Jacobson: I object to that being reread, Your 
Honor.

The Court: I overrule the objection, let the testi­
mony be reread.

(Reporter reread back answer.)

Mr. Lauerman: I would renew my objection at 
this time, Your Honor, and ask that the answer be 
stricken.

The Court: I overrule the objection, let the answer 
stand, as read originally, and reread.



160a

Prentice L. McK inney, called as a witness on behalf of 
the defendant, being first duly sworn, on oath testified as 
follows:

Direct Examination by Mr. Jacobson:

Q. State your name? A. Prentice McKinney.
Q. Where do you reside at the present time? A. 3256 

North 10th.

[142] The Court: How old are you?
The W itness: 20.

By Mr. Jacobson:

Q. Is that in the City and County of Milwaukee, State 
of Wisconsin? A. Yes, it is.

Q. Did you have occasion to take part in a demonstration, 
on the evening of August 31st, 1967? A. Yes, I did.

Q. Was that—were you in the Courtroom yesterday, 
when certain officers testified in this case? A. Yes, I was.

Q. During the whole testimony? A. Yes.
Q. Did you hear those officers testify that persons that 

were taking part in this demonstration on the night in 
question, were later arrested for violating the Mayor’s 
proclamation? A. Yes.

Q. Were you one of those persons? A. Yes, I was.
Q. Did you have occasion that night, to be placed in a 

paddy wagon? A. Yes.
Q. Where was that located? A. I don’t know, in between 

9th and 10th on North Avenue.
Q. And where in that paddy wagon were you placed? 

[143] A. I was by the door, and my back was to the north 
side of it.

Q. Which way would you be facing? A. I would be fac­
ing south, or towards the door.

Prentice L. McKinney—for Defendant—Direct



161a

Q. Which door is that? A. The back door, behind the 
driver.

Q. Did you have occasion, when you were in the paddy 
wagon that evening, where you were in this regard, to the 
position that you just testified to, did you have occasion to 
see Father Groppi? A. Yes.

Q. When was the first time you saw Father Groppi, when 
you were in the paddy wagon? A. He was being put in, 
they pushed up his back, and he was put in, he was still 
hollering about his leg.

Q. You saw him when he was outside the door of the 
paddy wagon? A. Right.

Q. And what did you see, when you saw him at that time? 
A. One Officer had him by the back, and one on each foot.

Q. You saw that? A. Yes.
Q. Did you have occasion to—what happened when you 

saw that? A. Well, they were bringing him into the wagon.
Q. Go ahead, describe what happened? A. Well, the 

officer that had his back, just came around and [144] lifted 
his back up, you know, to push him into the wagon.

Q. And then, was he in fact placed in the wagon? A. We 
helped him a little bit.

Q. You helped him too? A. Yes.
Q. Did you have occasion to hear any conversation be­

tween Father Groppi and the police officers? A. I wasn’t 
between—Father was just telling this other officer to make 
this—this other officer quit gouging his leg.

Q. Did you hear him say that? A. Yes.
Q. Did you hear any— that is what you heard ? A. Right.
Q. Did you hear anything else? A. No, he didn’t say 

anything else.
Q. Did you see Father Groppi kick a police officer in the 

chest? A. No, he didn’t kick anybody, he—

Prentice L. McKinney—for Defendant—Direct



162a

Q. Did you see him kick anybody? A. No, he didn’t kick 
anybody.

Q. Did you hear him use any vulgar language at the time 
he was being placed into the paddy wagon? A. No.

[145] Q. Did you see—hear any vulgar language at any 
time when he was in the paddy wagon ? A. Only—make them 
quit gouging my leg.

Mr. Jacobson: That’s all.

Cross Examination by Mr. Lauernum:

Q. You were in the paddy wagon, is that correct? A. Yes.
Q. You were towards the rear, towards the door? A. I 

was right next to the door.
Q. Were you one of the last ones? A. Well, I imagine 

so, because the paddy wagon was full.
Q. Do you remember other people being placed in after 

you, prior to Father Groppi being placed in? A. No, I 
don’t, just about the last.

Q. So the best of your memory, you were the last, prior 
to Father Groppi being put in? A. Right.

Q. Were you sitting down? A. I was standing up.
Q. Now, you were facing south? A. I had my back to the 

north wall, I was on an angle, because I was standing in 
the door.

Q. I just want to make sure this is clear, now you said 
you were facing south? [146] A. Right, on an angle like this, 
the wall was back here, and the door was here.

Q. So then you were facing more southwest? A. Right, 
say southwest.

Q. Was there noise coming from that wagon? A. A  few 
freedom songs, so— or so on.

Q. Shouts coming from the— A. Shouts, not necessarily,

Prentice L. McKinney—for Defendant—Cross



163a

there— I said just people saying get off my feet—jammed in 
like sardines.

Q. You wouldn’t describe the voices as shouting! A. No, 
not necessarily shouts, they weren’t whispering either.

Q. Did you hear anybody direct any words towards any 
officer? A. I wasn’t really even noticing, I—

Q. Did you direct any words towards any officer, when 
they opened the door? A. No.

Q. Were you saying anything, were you talking? A. I 
was singing.

Q. You were singing? A. Yes.
Q. Did you stop singing when Father Groppi was brought 

to the rear of the wagon? A. Yes, I did.
Q. At what point, as he was being lifted up? A. When 

I first saw him.
[147] Q. When you first saw him? A. Right.
Q. Prior to him being lifted up? A. Yes.
Q. WTiat were the exact words, as you remember them, 

that Father Groppi said? A. I am not going to say this 
is exact, or not exact, I beard something like, stop the 
officer he is gouging my leg, please, please, stop him.

Q. That is all you heard? A. Right, he was begging 
the man for mercy.

Q. You’re sure that is all the words you heard him say? 
A. Right.

Q. So then, you didn’t hear him say anything about badge 
numbers? A. No, I didn’t really pay any attention, he was 
saying the man was hurting him, I was interested in that.

Q. So then you didn’t hear all the words that Father 
Groppi spoke? A. Not necessarily—

Q. Just answer the question, you didn’t hear all the 
words? A. I heard them, but they didn’t all register.

Q. So you don’t remember all the words that Father 
Groppi spoke? A. Look, I told you—

Prentice L. McKinney—for Defendant—Cross



164a

Q. Answer that question. [148] A. No I don’t remember 
all the words he spoke, I don’t—he didn’t use any vulgar—

Q. That is not answering— A. The— each individual 
word—

Q. There was a lot of commotion going on outside the 
door of the patrol wagon, also when the door was open, 
is that correct? A. I don’t think there was that much.

Q. How many police officers were out there, as you re­
member? A. I don’t know, about five, or six.

Q. You say five or six, and one of them, a rather large 
officer had Father Groppi by the trunk, the upper trunk? 
A. Yes.

Q. And he lifted him up, and two more had him by the 
legs ? A. Right.

Q. One on each leg? A. Right.
Q. Isn’t it possible that for a period, of some seconds, 

perhaps you would have been obstructed in your complete 
view of what was going on? A. No.

Q. You never— A. Because I was right over his right 
shoulder.

Q. You say you grabbed Father Groppi? A. Right.
Q. Where did you grab him? [149] A. Up under his right 

shoulder.
Q. Was that—was his right shoulder area free for you 

to grab? A. Right.
Q. And you looked at the shoulder area? A. I didn’t 

even— was I—was I looking at the man, he was still holler­
ing about the man what was holding his leg.

Q. Do you think— strike that— did you see anything else 
going on, within the immediate area of the back of the 
paddy wagon, as Father Groppi was being placed into the 
paddy wagon? A. I wasn’t watching.

Q. You weren’t watching? A. I was watching him, and 
the three officers.

Prentice L. McKinney—for Defendant—Cross



165a

Q. Mr. McKinney, have you ever been arrested, and con­
victed of a criminal offense? A. Let’s see, I have, I don’t 
know, maybe once.

Q. Do you know, or don’t you know? A. I don’t know 
what you call a criminal offense.

Q. A misdemeanor, felony? A. Well, a misdemeanor.
Q. How many times ? A. About three, four times, some­

thing like that, like arguing with my girlfriend’s mother, 
and stuff like that.

Q. More than just that? [150] A. What do you mean, by 
more?

Q. It entailed more? A. No, just argument, disorderly 
conduct, argument.

Q. All right, Mr. McKinney, I just want you to be very 
honest, and search your memory, to the best of your recol­
lection— A. Yes.

Q. How many times, we don’t know what you were ever 
convicted of, if you were, about how many times have you 
been convicted of a criminal offense? A. I really don’t 
know.

Mr. Lauerman: You don’t know.
Mr. Jacobson: How many times Prentice, how 

many times, tell the jury to the best of your recol­
lection, more than four or five, tell them exactly.

The W itness: It’s more an four or five, it’s more 
an four or five.

Redirect Examination by Mr. Jacobson-.

Q. Are you working at the present time? A. Yes.
Q. Where are you working? A. Wisconsin State Em­

ployment, and University of Wisconsin.
Q. All right, just tell the jury exactly what your back­

ground is, you don’t have to keep saying four or five times, 
just say— [151] A. That is what I said.

Prentice L. McKinney—for Defendant—Redirect



166a

Mr. Jacobson: All right, that is all.
The Court: You’re excused.

Michael D. Cullen—for Defendant—Direct

Michael D. Cullen, called as a witness on behalf of the 
defendant, being first duly sworn, on oath testified as 
follows:

Direct Examination by Mr. Jacobson:

Q. State your name! A. Michael D. Cullen.
Q. Where do you reside! A. 1131 North 21st Street.
Q. That is in the City and County of Milwaukee, State 

of Wisconsin! A. Yes.

The Court: How old are you!
The Witness: I am 26.
The Court: All right.

By Mr. Jacobson:

Q. Now Mike, what do you do! A. I am Director of 
Casamarraa Refuge House, gives community shelter, it is 
an association for the community, we live on 21st and 
Juneau, I also am a teacher at the Employment Service 
for Project CITE, Community Involvement, Towards Em­
ployment, at the Wisconsin State Employment Service.

[152] Q. Now Mike, did you have occasion to be present at 
St. Boniface Church on the night of August 31st, 1967! A. 
Yes.

Q. Did you— did you take part in a demonstration that 
evening! A. Yes, I did.

Q. Were you later placed in police custody, for the vio­
lation of the Mayor’s proclamation! A. Yes, I was.

Q. Where did that take place! A. I was in the line, 
which was going east on North Avenue, between 9th and



167a

10th Street, if I remember properly, and I was about, oh, 
1 would say 30 feet from the beginning of the line, which 
was headed by Father Groppi, and Commandoes, and other 
people, when the arrest, when arrests took place, they 
arrested the beginning of the line, and a number of us in 
the middle, we came in, and I was arrested with a large 
group, not as an individual, but as a group, to the paddy 
wagon.

Q. All right, a number of you were taken to a paddy 
wagon? A. Yes, which was facing east, which was facing 
east on North Avenue.

Q. Were you—were you in close vicinity of this particu­
lar paddy wagon, as you were in police custody? A. It 
was in a little more to the south side of the street, [153] but 
it was even to the center.

Q. And you were actually taken by the police, to a paddy 
wagon? A. Yes, with a group of people, mostly of whom 
were white.

Q. All right, were you ever placed in the paddy wagon? 
A. I was brought to the side of the paddy wagon, this is 
important, exactly what happened, I was brought to the 
side of the paddy wagon, with a number of people, and it 
was during this time that Father Groppi was carried by, 
and I am trying to recollect, it was four policemen as far 
as I could see in the beginning, if you can think, the paddy 
wagon was facing east, he had to come around front of 
the paddy wagon, in order to get to the rear, we were on 
the side, and when the other policemen saw Father Groppi 
coming, there was much excitement, a lot rushed towards 
him, to put him into the paddy wagon.

Q. Now, when you saw Father Groppi for the first time, 
he was in the front of the paddy wagon? A. Yes, the front 
towards the engine.

Q. He was being carried by police officers? [154] A. When

Michael D. Cullen—for Defendant—Direct



168a

he was being carried by me, he was limp, very limp, you see, 
they had to pass by me.

Q. Just answer my questions. A. Okay.
Q. He was being carried by some police officers! A. 

Yes.
Q. You were able to see this! A. Yes.
Q. Did you see these police officers carry Father Groppi 

to the back of the paddy wagon! A. Yes.
Q. And did you then see the police officers also lift Father 

Groppi up into the paddy wagon itself! A. The wagon 
itself— the door sort of hemmed some of us out, the door 
had to be opened sideways, and as he went around the 
paddy wagon, I didn’t exactly—put right in the paddy 
wagon, but it was on the way, remember coming around 
by the door.

Q. Were you in the back—  A. I—
Q. Were you in the back of the paddy wagon! A. Yes, 

more to the side, than to the back.
Q. Were you in a position to see Father Groppi as he 

was being carried, and being placed in the paddy wagon! 
A. Yes.

Q. You were in a position to see that! A. Yes.
Q. All right, at any time that you saw Father Groppi, 

as he was being carried to the back of the paddy wagon, 
and being placed in the paddy wagon, did you see him kick 
any police [155] officer! A. No, I did not.

Q. Did you hear him say anything! A. No, there was 
no— this is very hard, I have been trying to think back 
very deeply on this, is that— one of the things that seemed 
to have happened, was that he did have a foot that was 
shaking, I didn’t see him kick anybody, and he said, my 
leg, my leg, and that is all I could hear, it was so very 
vague, very vague.

Q. Did you hear him use any— A. No profanity, no 
profane language, I am positive of that.

Michael D. Cullen—for Defendant—Direct



169a

Q. Were you then placed in the paddy wagon yourself? 
A. No, I was not, in fact it was such a hustle, that Father 
Groppi— the doors were slammed, and we were left, I 
don’t know how many was left on the sidewalk, but a 
number were left on the sidealk, we were not arrested 
that night, we were arrested, but we weren’t placed in the 
paddy wagon, so we went free.

Q. You were never charged with the violation of the 
Mayor’s proclamation? A. No, I was not.

Mr. Jacobson: That’s all.

Cross Examination by Mr. Lauerman:

Q. You said you were on the side of the paddy wagon, as 
[156] Father Groppi was brought around? A. Side, more 
to the rear, we were on the sidewalk, part of the sidewalk, 
not on the sidewalk.

Q. Now, you also testified that you saw him as he was 
being carried, and you saw him at a point where he would 
have been near the front of the paddy wagon? A. I was 
more to the rear, to the side.

Q. When did you first see him? A. I could see him com­
ing all the way down.

Q. How far away from the paddy wagon, were you? A. 
I was right beside— they passed right—a policeman between 
me and him, a point between the body, I was probably the 
closest person to him.

Q. So you were standing right beside the paddy wagon? 
A. Yes.

Q. When he was brought around the rear of the paddy 
wagon, didn’t the doors obstruct your view? A. It ob­
structed the view, in the last minute, when he was—

Q. These doors as they open, they swing around the 
paddy wagon? A. But there were, well—

Michael D. Cullen—for Defendant—Cross



170a

Q. Don’t they! A. Okay, yes.
Q. About how wide are these doors? A. Oh, let me see, 

two and a half feet, three, each door.
[157] Q. And if you were standing right beside, then as the 

paddy wagon door swings around the paddy wagon, that 
would fairly well obstruct your view? A. It would ob­
struct, definitely, some of it.

Q. So after that door swung open, your view was quite 
well obstructed? A. For a time.

Q. So there was a period of time then, that you would 
probably not even been able to see Father Groppi? A. No, 
I saw him totally, they had to get by the doors.

Q. No, I mean after they walked around the door, there 
was a time you didn’t see him? A. Yes, right.

Q. You also testified there was much excitement at the 
paddy wagon, as they were carrying Father Groppi? A. 
Very much so.

Q. Was there a lot of commotion? A. But I was very 
much concentrated on Father Groppi.

Q. But there was a lot of commotion? A. Yes.
Q. Also some noise back there? A. There was noise, 

absolutely.
Q. So it would be safe to say, you may have missed a 

few words that any one individual would be speaking, at 
the rear of that wagon, is that correct? [158] A. Very, very 
possible.

Michael D. Cullen—for Defendant—Redirect

Mr. Lauerman: That’s all.

Redirect Examination by Mr. Jacobson:

Q. As a matter of fact, you didn’t hear Father Groppi 
say any profanity at all? A. Absolutely not.

Mr. Jacobson: Defense rests.



171a

Armando Braszoni—for Plaintiff—Direct

Mr. Lauerman: I ’d like about two minutes, Your 
Honor.

A rmando B razzoni, recalled as a witness on behalf of 
the State of Wisconsin, being previously sworn, on oath 
testified as follows:

Direct Examination by Mr. Lauerman:

Q. Officer Brazzoni, you have previously testified in this 
trial, is that correct? A. That is correct.

Q. And your testimony was, that you helped Father 
Groppi to the paddy wagon? A. That is right.

Q. As you neared the paddy wagon, state whether or not 
—state whether or not you were asked by Father Groppi 
any questions, or did he make any statement, as you were 
going around the paddy wagon? [159] A. The only statement 
he made, was that he wanted that man’s badge number.

Q. At what point did that happen? A. This was just 
as he was entering, being placed in the wagon.

Q. Is that the first statement you heard him make? A. 
Yes.

Q. State whether or not where was any noise coming 
from the paddy wagon? A. When was this, after?

Q. As he was behind it? A. Oh yes, definitely.
Q. Was there quite a bit of noise? A. Yes, quite a bit, 

chanting, name calling.
Q. Did this occur up through the point where he was 

successfully placed in the paddy wagon? A. Yes.

Mr. Lauerman: That’s all.
Mr. Jacobson: We ask this line of questioning be 

stricken, on the basis, the jury heard all the testi-



172a

Wilfred Buchanan—for Plaintiff—Direct

mony before, and the latter part, of the material 
part of the testimony.

The Court: Let the questions and answers stand, 
let the jury weigh it one way or the other.

[160] W ilfred Buchanan, recalled as a witness on behalf 
of the State of Wisconsin, being previously sworn, on oath 
testified as follows:

Direct Examination by Mr. Lauerman:

Q. Officer Buchanan, you have testified in this trial pre­
viously? A. Yes, I have.

Q. And you have testified that you were one of the 
officers who was aiding in carrying Father Groppi to the 
paddy wagon? A. Yes.

Q. And what grip did you have on Father Groppi? A. 
I had my both hands around his lower part of his leg, or 
ankle, and in it, I also had my club, my night stick.

Q. State whether or not at any time, you pushed your 
fingers into his ankle? A. No, I didn’t.

Mr. Jacobson: Your Honor, I am going to object, 
it is totally self-serving, it is repetitious, we heard 
this all—

The Court: Let the questions and answers stand, 
let the jury weigh it one way or the other.

Mr. Lauerman: That’s all.
Mr. Jacobson: No questions.
[161] Mr. Lauerman: State rests.
Mr. Jacobson : Defense rests.

(Jury excused.)

The Court: First of all, I will ask are there any



173a

Colloquy

request for the instructions either side wishes to 
make a matter of record, then after that, we will 
entertain the motions, and then have the closing 
arguments to the jury.

Mr. Jacobson: Well we have one request on in­
structions, on what the offense the jury is to be 
charged with.

The Court: Have you—
Mr. Jacobson: It’s right—
The Court: Let me see it please. I will deny 

this exact instruction to the jury, because I am 
going to give an instruction to the jury that is 
similar to this, at the same time somewhat differ­
ent, and not in these same words, but your instruc­
tion will be made a matter of the record, any other 
request?

Mr. Lauerman: Only that the standard be read 
to the jury, Your Honor.

The Court: Any motions on either side, in the 
absence of the jury, or without the absence of the 
jury?

Mr. Lauerman: State would have one motion, to 
renew an objection, but would like that done in the 
presence [162] of the jury, wherein the Reporter can 
read back the testimony before the jury.

Mr. Jacobson: Defense objects to that being done 
at this time.

The Court: I will allow it, and overrule your 
objection. Do you have any motions you would like 
to make.

Mr. Jacobson: Well we will, after they make their 
motion.

(Jury Present)



174a

Colloquy

The Court: Anticipating we will run through un­
til 1 o’clock, with the closing arguments and my in­
structions to the jury, for those of you sitting in the 
audience, it will be at least 1 o’clock. All right, any 
other motions now, before the closing arguments?

Mr. Lauerman: State does have one motion Your 
Honor, and would like the Reporter to read the 
initial direct examination of Father Groppi, when 
he was testifying in this case, and more particularly, 
the point at which Father Groppi testified that he, 
and several other people were discussing the march.

The Court: Mr. Reporter, will you read that 
portion back.

(Question and answer read back).

Mr. Lauerman: State would renew its objection 
[163] to that testimony as being immaterial, and ask 
that it be stricken.

Mr. Jacobson: Defendant’s position Your Honor, 
the introduction of the Mayor’s proclamation into 
evidence at the request of the State, was objection­
able, and therefore, there will be a renewal of the 
objection to having received that proclamation into 
evidence.



175a

The Court: I will overrule the objection, as I did previ­
ously, and let the question and answer stand. Now ladies 
and gentlemen of the jury, the State has presented its 
case to you and rested, the defense has presented its case 
to you, and rested. I would like to tell you at this time, 
what the Assistant District Attorney, and the Defense 
Counsel said at the opening of this trial, what they, would 
prove to you is not necessarily evidence in this case. Now 
we arrive where they have their closing arguments to you, 
and I wish to tell you, that what they, did prove, is not 
actually evidence in this case. The innocence or guilt of 
this defendant, is determined by two things, one, by the 
testimony of the witnesses for both sides, on the witness 
stand, and then at the conclusion of these closing argu­
ments, my instructions to you on the law in this case. 
The testimony of the witnesses, on both sides and my in­
structions to you on the law, and those two things alone, 
do you determine the innocence or guilt of this defendant.

[164] The Court: To these instructions now. I indicated to 
you previously, that what the Counsels said at the begin­
ning of the trial, and what they said at the conclusion of 
the trial, is not evidence in this case. The innocence or 
guilt of this defendant is determined by the testimony of 
the witnesses on the witness stand for both sides, and ap­
ply that testimony, to the instructions to the jury, and 
the law that I will read to you at this time, and upon these 
two things alone, you determine the innocence or guilt 
of this defendant. Ladies and Gentlemen of the jury; at 
the close of arguments of Counsels in this case, it is the 
duty of the Court to instruct you upon the principles of 
law that should guide and govern you in your considera­
tions of the evidence, and in reaching your verdict. It is 
the duty of you, members of the jury to take the law as

The Court’ s Charge



176a

given in this instruction, and apply that law to the facts 
in this case, which are properly proven by the evidence, 
and therefrom, arrive at your verdict. It is your duty to 
exclude from consideration everything but the evidence 
received on this trial, and the law as given to you, in these 
instructions, and from these alone, guided by your soundest 
reason, and best judgment, reach your verdict. The com­
plaint in this case, charges that State of Wisconsin, Plaintiff, 
against James Edmund Groppi, Case Number 2-63208, 
County Court, [165] Misdemeanor Branch, Complaint for 
Resisting an Officer, in the State of Wisconsin, through 
the Sheriff, Constable, or any police officer of the City of 
Milwaukee, “whereas, Wilfred Buchanan, being first duly 
sworn on oath, states to the Honorable John J. Kinney, 
as Magistrate, that James Edmund Groppi, the above 
named defendant, on the 31st day of August, 1967, in the 
County of Milwaukee, Wisconsin, did unlawfully, know­
ingly, resist Wilfred Buchanan, a duly appointed and 
qualified and acting police officer, of the City of Mil­
waukee in said County, while the said Wilfred Buchanan 
was then and there engaged in doing an act, in his official 
capacity, and with lawful authority, to-wit: said Wilfred 
Buchanan, personally observed said defendant resist Bu­
chanan, at 900 West North Avenue, in the City of Mil­
waukee, in said County, to-wit: while said defendant was 
being carried to a police wagon, after being placed under 
arrest, said defendant began kicking his legs, striking said 
Officer Wilfred Buchanan in the body with his foot, that 
said defendant then states to said Wilfred Buchanan, “you 
fuckin’ son-of-a-bitch, I want your number.” “ Contrary to 
Section 946.41 of the Statutes, and against peace and dig­
nity of the State of Wisconsin, and prays that the said 
James Edmund Groppi, may be arrested and dealt with

The Court’s Charge



177a

according to law, signed Wilfred Buchanan, complainant.” 
To this charge the defendant has pleaded not guilty.

[166} The Court: Although there has been testimony con­
cerning the Mayor’s proclamation and the arrest thereto, the 
only charge on which the defendant is before this Court, 
is resisting an officer, and his innocence or guilt should be 
solely determined on that singular charge alone. The Stat­
utes of this State provide, 946.41, “Resisting or obstruct­
ing an officer, paragraph 1, whoever knowingly resists or 
obstructs an officer, while such officer is doing any act in 
his official capacity, and with lawful authority, may be— 
paragraph 2, in this Section subparagraph a. “Officer” , 
means peace officer, or other public employee, having the 
authority by virtue of his office, to take another into cus­
tody.’ Reading that Statute where it says, resisting or 
obstructing, the singular, is resisting an officer, resisting 
an officer as defined in Section 946.41, provides that, “who­
ever knowingly resist or obstructs an officer while such 
officer is doing any act in his official capacity and with 
lawful authority is guilty of a violation of the Statutes” . 
Before the defendant may be found guilty of the offense 
of resisting the officer, the State must prove, by evidence, 
which satisfies you beyond a reasonable doubt, that there 
were following, the following three elements of this offense. 
First, that the defendant resisted an officer, two, that the 
officer was doing an act in his official capacity and [167] with 
lawful authority, three, that the defendant resisted the 
officer knowingly, that is, the defendant knew or believed 
that he was resisting the officer, while the officer was act­
ing in his official capacity, and with lawful authority. To 
resist a peace officer, or police officer, directly, and while 
he was engaged in a lawful doing of an act, possibly 
means the resistance directed to the officer personally. 
The word, knowingly, worth belief that a special fact ex­

The Court’s Charge



178a

isted. The second element of this offense; that the officer 
was doing his act in a official capacity and with lawful 
authority. If you find therefore, beyond a reasonable doubt, 
that the officer was then in his official act, serving in his 
official capacity and with lawful authority. The third of­
fense of this—the third element; that the defendant acted 
knowingly, before you may find that the defendant acted 
knowingly, knew or believed that the person resisted, was 
an officer, that the officer was acting in his official capacity, 
and that the course of conduct would indicate resistance, 
in the performance of his duties, and that his conduct was 
resisting the officer, if you are satisfied beyond a reason­
able doubt, from the evidence in this case that the defen­
dant knowingly resisted an officer, and that the officer was 
doing an act in his official capacity, and with lawful au­
thority, then you may find the defendant guilty o f the 
[168] offense of resisting an officer as charged, if you how­
ever are not satisfied, then you must find the defendant not 
guilty o f resisting an officer. You are the sole judges of 
the credibility of the several witnesses, in determining the 
convincing power of the evidence, and in deciding questions 
of fact, and in determining the credibility to be given to 
the different witnesses. You should take into consideration 
all of the evidence, the character and appearance of the 
witnesses, the knowledge, sources, and means of informa­
tion of the several witnesses, their candor, or lack of can­
dor, and the bias, or lack of bias, or interest manifested by 
them. You have the right to consider the manner of testify­
ing while a witness is upon the witness stand, and the 
probability of the truth of the matters testified to, when 
taken in connection with all of the evidence and surround­
ing circumstances, and you wall consider all of the facts 
and circumstances, as they have been produced upon the

The Court’s Charge



179a

trial, and determine the convincing power of the evidence 
accordingly. If you believe that any witness has willfully 
testified falsely to any material fact in this case, you may 
on that ground alone, if you see fit, disregard the testi­
mony of such witness as to all other matters, except in­
sofar, as it is corroborated by other credible evidence 
produced upon the trial, or by facts and circumstances, which 
may be [169] fairly inferred. Under the law a defendant 
is a competent witness in his own behalf, the defendant 
James Edmund Groppi has given his testimony, and you 
are the judges of the weight which ought to be attached 
to it, he is directly interested in the result of the trial, 
in determining the weight to be given to the testimony of 
the defendant, it is proper for you to take such interest 
into consideration you are to give to his testimony such 
weight as under all of the circumstances you think it is 
entitled to, his testimony is to be considered with all of 
the other evidence in the case. You should also consider 
to what extent if any, the interest any other witness on 
this trial may have in the result of the case, or in testify­
ing in the manner in which he did, and you are to con­
sider to what extent if any, such interest has any influ­
ence upon his testimony. You should apply the same tests 
as to credibility and weight to the testimony of every wit­
ness sworn. The burden of proving the defendant guilty 
of the offense charged, is upon the State, and before you 
can render a verdict of guilty, the State must prove to 
your satisfaction, beyond a reasonable doubt, that the 
defendant is guilty of the offense charged, every person 
charged with the commission of an offense is, in law, pre­
sumed to be innocent, and that presumption of innocence 
attends throughout the trial, and prevails at its close, [170] 
unless, overcome by testimony, which satisfies the jury, of 
his guilt beyond a reasonable doubt. By proof beyond a

The Court’s Charge



180a

reasonable doubt, is meant such proof as satisfies your 
judgments as reasonable persons, and applying your rea­
son and judgments to the evidence before you, that the 
offense charged, has been committed by the defendant, 
and so satisfies you, as to leave no other reasonable con­
clusion possible. The reasonable doubt mentioned means, 
a doubt resting in reason, and it must arise from all of 
the evidence, or want of evidence fairly and rationally 
considered, it means an honest substantial doubt, founded 
in reason and common sense, as applied to the evidence, 
a doubt for which a reason can be given, arising from 
either the evidence, or from a want of evidence. In deter­
mining the guilt or innocence of the defendant, you should 
scrutinize the evidence with the utmost care and caution, 
bringing to that duty, all of the reason and prudence that 
you would exercise in the most important affairs of life, 
in fact all of the judgment, care, caution and discrimina­
tion that you possess. This is a criminal case, your ver­
dict must be unanimous, two forms of verdict will be sub­
mitted to you for your consideration, namely, we the jury 
find the defendant James Edmund Groppi guilty in man­
ner and form as charged in the complaint, the other, we 
the jury find the defendant, James Edmund Groppi not 
guilty. [171] It is for you to determine which one, of such 
two forms of verdict you will bring in as your verdict. When 
you retire to your jury room, for your deliberations, let 
your first order of business be the selection of a foreman, 
or a forelady, to preside over your deliberations, when 
you have unanimously agreed upon your verdict, have your 
foreman, or forelady sign and date the same, and bring 
it into open Court, while the Court is in session.

(Thereupon jury retired at 1:30).

(Thereupon proceedings were had as follows at 3:30).

The Court’s Charge



181a

Request from Jury for Further Instructions

The Court: The bailiff indicated that the members of 
the jury had a question to ask the Court, and the legal 
pad was taken back there to ask what their question was, 
question handed to me, reads as follows, that at request, 
“all testimony— of when Father Groppi was picked up in 
limp position and carried to police patrol wagon.” They 
indicated they want it reread.

Mr. Lauerman: Of course the State’s position is, they 
have heard the facts, all the facts during the course of 
this trial, to reread any testimony, or give them back at 
this time, testimony of any given witness, regardless of 
whether it be for the State or for the defense in this case 
would tend to high light that testimony, and therefore, 
no testimony should be reread or given to them.

[172] The Court: Any comment by Mr. Jacobson, repre­
senting the defendant ?

Mr. Jacobson: On this particular question Your Honor, 
I would agree with the State, that testimony should not be 
broken up from one point in time, especially in line with 
the fact, there is further testimony on cross examination, 
that would have to come in regarding from the time that 
the defendant went limp, until the time he was placed in 
the paddy wagon, we can’t tell from the state of the rec­
ord, just where on cross examination all those questions 
would be, and I think that would have to be read to the 
jury, as well as what was said on direct, that would be the 
position of the State, and our position as to this specific 
question, that the jury would have to be told that any 
testimony read out of context would not be fair to the 
positions of either the State or the defense.

The Court: All right.
Mr. Jacobson: How you want to handle that, I am not 

sure Your Honor.



182a

Request from Jury for Further Instructions

The Court: The only problem is, that you have the 
testimony of one person read back, then the State is going 
to ask that the portion of another witness be read back, 
and we will be reviewing the entire testimony, which took 
us a day and a half to hear. So, you tell the members of 
the jury, that the testimony heard this morning was [173] 
very clear as far as the Court was concerned, for both sides, 
there is no reason for rereading the testimony.

Mr. Jacobson: Why don’t you give a copy of that, what 
you just stated, in writing, so that would only tell the jury, 
on a written legal pad, which the Court will write out, what 
should be told, then there would be no comments on the 
part of the bailiff himself. I think that would be a good 
way, and both Counsel and I agree, leave the jury impan­
eled, alone, just so that is read off the legal pad, what 
the Court’s position is on this, we wouldn’t have any prob­
lem with the hearing, they shouldn’t— isn’t it true you can­
not bring anything, any written matter into the jury room, 
except what has been marked as evidence, in other words 
they can’t have written statements from the Court or any­
thing—just so it is read off, you only tell the jury the 
written out portion, that’s on the written legal pad, I am 
sure then, there will not be any paraphrasing. Your Honor, 
why don’t you say, the testimony is already in, and that 
any part thereof cannot be reread at this time.

The Court: On a legal pad will be the following nota­
tion, “ the testimony heard this morning was very clear 
for both sides, and is a part of the record. Therefore, the 
jury should proceed to deliberate on this matter without 
the rereading of the testimony.” Let the record reflect, that 
the jury was so informed. I would like to have the [174] 
Defense Counsel remain here, and the defendant, and the 
District Attorney, to at least 5 o’clock, then we will go on 
from there.



183a

V erdict

(Thereupon proceedings were had as follows at 5:00)

The Bailiff: Your Honor, Bailiff informs me that the 
jury has reached a decision in this matter.

The Court: And whatever the decision of the jury is, 
I want decorum on part, of all parties in this Courtroom.

(Thereupon jury returned at 5:00)

The Court: This is in the matter, State of Wisconsin 
Plaintiff, versus James Edmund Groppi, charged with a 
State charge, allegedly, violation of 946.41 of the Wisconsin 
Statutes, resisting an officer. This trial commenced before 
this Court and jury, on Thursday, February 8th, this date 
Friday, February 9th, at approximately 1:30 the case was 
concluded, and the jury deliberated on this matter. It is 
approximately 5 o’clock. I will ask the members of the 
jury if they have reached a verdict in this matter.

The Foreman: Yes, we have Your Honor.
The Court: Have you elected a duly elected foreman, 

or forelady?
The Foreman: Yes, sir.
[175] The Court: Are you foreman, please rise, state your 

name and address?
The Foreman: Ronald Kruk, 2505 South 8th Street.
The Court: And you are the duly elected foreman of 

the jury?
The Foreman: Yes, sir.
The Court: Have you reached a verdict in this matter?
The Foreman: Yes, Your Honor.
The Court: Do you have that verdict, will you please 

read it in Open Court?
The Foreman: We the jury find the defendant, James 

Edmund Groppi guilty in the manner and form, as charged 
in the complaint, dated this 9th day of February, 1968.



184a

Colloquy

The Court: Please bring me this verdict. State of W is­
consin, Circuit Court, Milwaukee County, State of Wiscon­
sin Plaintiff, versus James Edmund Groppi, being Case 
Number G-4718, we the jury find the defendant James 
Edmund Groppi guilty in manner and form, as charged in 
the complaint, dated this 9th day of February, A.D. 1968, 
signed—

The Foreman: I signed it, E. J. Kruk.
The Court: Yes, Foreman. Does the members of—does the 

Defense Counsel wish to poll the members of the [176] jury?
Mr. Jacobson: Yes, Your Honor.

(Thereupon Jury Polled, and all members responded in 
the affirmative).

The Court: Do either side, starting with the District 
Attorney, wish to make any comments?

Mr. Lauerman: No.
The Court: Any comments by the Defense Counsel, 

Mr. Jacobson?
Mr. Jacobson: I am reserving motions after verdict, 

until Monday at 9, is that correct. I have no comments at 
this time.

The Court: Pardon?
Mr. Jacobson: I have no comments.
The Court: I wish to thank you for deliberating on this 

particular case. You’re excused at this time, until the date 
and time that was just read off to you by the clerk. I wish 
to thank you for doing your civic duty here in this particu­
lar case, which of course, is a tremendous responsibility 
for you to pass judgment on your fellow citizens. So I 
wish to thank you at this time for your attention, and de­
liberations on this matter, and you’re excused. Thank you 
very much. This matter will be adjourned at the request



185a

Colloquy

of the defendant, for any [177] motions, written motions, to 
be tiled Monday morning in this Courtroom, at 9 o’clock. So 
the District Attorney be here promptly at 9, Defense Coun­
sel, the Defendant James Groppi be here for motions, and 
possible disposition, by way of penalty.

* # # # #

State of W isconsin,
County of M ilw aukee , ss. :

I, James J. Thurber, Acting Official Reporter of Circuit 
Court, Milwaukee County, hereby certify that the forego­
ing constitutes a true, correct and complete transcript of 
my Stenograph notes of the testimony and other proceed­
ings taken upon the above entitled action.

/ s /  James J. T hurber



186a

Cl] R aymond W. F leming 
Chief Deputy

F I L E D

Nov 04 1967

Clerk of Courts 
Criminal-Misdemeanor 

Traffic Divisions

Charge: Resisting A rrest

H earing on M otion in the above entitled ac- 
ion held on October 30, 1967, before the H on­
orable F. R yan D uffy , J r ., Acting Circuit 
Court Judge, presiding.

A ppearances :

David J. Cannon—Assistant District Attor­
ney, appearing for the State of Wisconsin. 
Thomas M. Jacobson— Attorney for Defen­
dant. Defendant in Court.

Judith Spanheimer— Official Reporter.

[2 ] PROCEEDINGS

Mr. Cannon: I understand preliminary procedure is to 
file a brief today. I understand it was filed and Mr. Lauer- 
man couldn’t be here; his wife went to the hospital so I’m 
just here representing the State.

Mr. Jacobson: This matter was before the Court on 
October 18th and the Defendant filed an Affidavit of Preju­

Hearing on Motion to Accept Affidavit of Prejudice



187a

dice against Your Honor sitting as an acting Circuit Court 
Judge. That was the first appearance before Your Honor 
as a Circuit Court Judge. The matter has been made a 
Circuit Court matter on October 11th, 1967, when Hugh 
O’Connell, District Attorney in and for Milwaukee County, 
filed a Demand to have the County Court proceedings trans­
ferred to the Circuit Court and the matter was to be tried 
as a Circuit Court proceeding. The original appearance 
before Your Honor was on October 18th after Judge Steffes 
appointed Your Honor as an acting Circuit Court Judge. 
At that time, we filed an Affidavit of Prejudice which Your 
Honor refused. There was discussion as to filing a brief 
on the matter. The Court set this morning at 9 :00 o’clock 
for the parties to hand in their briefs; that is, the State 
and the Defense. The Defense had their brief in at ten 
minutes to 9:00; the State furnished me a copy of their 
brief at three minutes after 2 :00. It is a brief brief, how­
ever, and if the Court will permit argument on [3 ] filing an 
Affidavit of Prejudice—

The Court: Just by way of background here on this 
matter. This is an alleged violation of Section 946.41 (1) 
of the Wisconsin Statutes on August 31st, 1967 and there 
was an Affidavit— an Affidavit of Prejudice was filed against 
Judge Seraphim in Branch 4, I believe on September 14th, 
1967. Then, the case was transferred to this Court, Branch 
12, by lots, and the case was adjourned to September 25th, 
1967 in this Branch, No. 12, Misdemeanor— Traffic Division. 
Then a motion for a Change of Venue was filed September 
26th, 1967 and the motion was denied on October 2nd, 1967 
and a Jury Trial was demanded by the Defendant and 
this Court set October 19th, 1967 for a Jury Trial and 
then an officer of the District Attorney asked that a jury 
of 12 be demanded on October 11th, 1967, pursuant to

Hearing on Motion to Accept Affidavit of Prejudice



188a

324.17 (9) of the Wisconsin Statutes. Then on October 18th, 
1967, the State of Wisconsin asked that the matter he 
transferred to the Circuit Court to be tried and determined 
as a Circuit Court action. Then, on October 18th, 1967, the 
Defendant appeared before this Court, Branch 12, and 
asked leave to file an Affidavit of Prejudice after Judge 
Steffes appointed this Court to sit and hear and determine 
these matters as a Circuit Court Judge. On October 18th, 
the Court refused to accept the Affidavit of Prejudice for 
the only reason that [4 ] I felt the Wisconsin Statutes under 
these circumstances didn’t provide for it but I granted time 
to this date, October 30th, for both sides to file briefs on 
the matter and I received a brief by the Defense and a 
brief by the District Attorney. Will each side want to 
make an argument on your briefs as submitted here today1?

Mr. Jacobson: Well, Your Honor, the Defense brief is 
purely a statutory argument. The Statute in this matter 
being a Circuit Court proceeding is 324.17 (9) and it indi­
cates that any party to the controversy may within ten 
days after notice that a Jury Trial has been demanded, 
have the matter transferred to the Circuit Court of the 
county for trial. Now, much of the brief indicates that this 
statute according to the Defendant’s position is civil in 
nature, that the proceedings in the Civil Court Sections of 
the Statute provide in criminal misdemeanor cases for two 
trials. That if the Defendant is not successful in the County 
Court proceedings trial, it must he turned over to the 
Circuit Court so the statute is utilized. However, the Stat­
ute 324.17 (9), the second sentence indicates as follows: 
“Upon the filing o f such demand for transfer, the Judge 
of the County Court shall immediately cause the record 
and proceedings in the matter to be certified to the Circuit 
Court and the same shall there be tried and determined as

Hearing on Motion to Accept Affidavit of Prejudice



189a

a Circuit Court action,” [5 ] and it proceeds to talk about pro­
bate proceedings which really this statute was intended to 
govern, a probate proceeding. Now, this was when this 
matter that’s before the Court became a Circuit Court 
matter on the 11th o f October when the District Attorney 
filed this demand to have the matter transferred to the 
Circuit Court from the County Court and on October 19th, 
Judge Steffes received the matter, wrote a letter indicating 
Your Honor was going to be appointed as an acting Circuit 
Court Judge. We think this is a de novo matter of the time 
that you became a Circuit Court Judge and we indicated 
at the outset on October 18th that we were appearing spe­
cially on behalf of the Defendant in all proceedings before 
Your Honor as a Circuit Court Judge and not submitting 
to the jurisdiction of the Court until this matter of whether 
you are going to accept an Affidavit is cleared up. We be­
lieve that— and in the brief, we point out that if Your Honor 
takes the position that the County Court proceedings are 
binding in the Circuit Court Judge, we set up a hypothetical 
during the last argument before Your Honor, where if you 
would be sitting as you were originally as a County Court 
Judge when you received the case on the Affidavit of Prej­
udice from Judge Seraphim and several motions were filed 
before you and you denied the motions and then a demand 
for a jury [6 ] was made or a right to waive a jury was made 
in the case and then the District Attorney filed our demand 
to have the case transferred to the Circuit Court and as 
soon as Judge Steffes became the acting Circuit Court 
Judge. According to the logic of Your Honor, if the Court 
holds the Defendant to only one affidavit because that’s 
what he filed in the County Court proceedings, then to 
follow that logic further, he would have to take the posi­
tion then that all proceedings in the County Court become

Hearing on Motion to Accept Affidavit of Prejudice



190a

binding on the Circuit Court and we indicated that logic 
may seem correct if the same County Court Judge becomes 
the Circuit Court Judge in the same proceedings. However, 
we take the position that it is quite clear if Judge Steffes 
knew, he would have kept the case as a Circuit Court Judge, 
would not be bound by the County Court Motions when 
the Statute said that the matter should be tried as a Cir­
cuit Court action. Nor, would he be allowed to proceed 
de novo in the matter of arraignment of motions made 
before him as he saw the law and then to have a jury trial 
and proceed in the matter as if nothing had occurred in 
the County Court. The argument is just that basic on 
the part of the Defense, this is a de novo matter and that 
all County Court proceedings became annul on the 11th 
of October when the demand was filed and the case was 
transferred to the Circuit Court. And at this [7 ] point, there 
is nothing before the Court in terms of an arraignment, 
that is a plea on behalf of the Defendant in the Circuit 
Court nor are there any Circuit Court motions that have 
been filed or is there one affidavit that the Defendant is 
entitled to in the Circuit Court as an original proceeding.

The Court: Did the State wish to make—
Mr. Cannon: Well, just that there is not such thing as a 

special appearance in a criminal action, and I think the 
State’s position was stated in Mr. Lauerman’s brief. Un­
fortunately, he can’t be here, his wife went to the hospital 
this morning and he had to go too.

The Court: Well, I have the benefit of his brief anyway.
Mr. Cannon: Right.
The Court: In which he stated also that—in communi­

cation states, the Defendan cannot now claim he is entitled 
to file a second Affidavit of Prejudice.

Hearing on Motion to Accept Affidavit of Prejudice



191a

Mr. Jacobson: I don’t want to comment on the State’s 
brief, only for the purpose, I ’m sure that the deceptiveness 
and the lack of brevity of the facts prior to the conclusion 
of the State s brief—as Defense counsel, I don’t even want 
to comment on that, to say that an Affidavit of Prejudice 
against Chris Seraphim was filed and then was transferred 
to F. Ryan Duffy in the County Court, and therefore, we can’t 
file a second Affidavit. [8 ] Somewhere or other the State’s 
recitation of the facts has gotten us up to the date of Sep­
tember 14th and as the Court stated in its recitation of the 
facts and proceedings on the 25th, the 26th of September, 
then there was a proceeding on October 2nd, a proceeding 
on October 6th, a proceeding on October 11th, a proceeding 
on October 18th. I ’m just at a loss to comment on the recita­
tion of the facts as set forth by the State, Your Honor, to 
make clear that we take the position that the recitation is 
very deceptive and misleading at best.

Mr. Cannon: Well, there is no statement of the facts in 
the State’s brief. The Judgment Roll will reflect what hap­
pened not the State’s brief. It’s a legal issue, it’s not a 
factual issue. It’s nonsense that it’s deceptive; the facts are 
in the Judgment Roll. The whole issue is the only thing to 
be decided here; there is no quarrel with what the facts are, 
that’s part o f the record.

The Court: The only thing that entered my mind is that 
if the statute provides to receive the Affidavit of Prejudice, 
there is no question that is what I would do but that statute 
does not provide for it legally. I told you I didn’t think I 
could accept it so it seems to me that the matter was de­
termined when the case came to Branch 12 by lot, that means 
my name was drawn after a Writ of Prejudice or Affidavit of 
Prejudice was filed [9 ] against Chris Seraphim in Branch 4. 
Then when the matter went to Judge Steffes, he had the

Hearing on Motion to Accept Affidavit of Prejudice



192a

choice of appointing—retaining jurisdiction or appointing 
another Circuit Court Judge, but he elected to sit on this 
particular matter. If another Circuit Court Judge had 
entered the picture, you might have another question but, 
however, where the Court, Branch 12, who had the jurisdic­
tion when transferred by lot was selected to try and deter­
mine the matter as the Circuit Court Judge, I don’t think 
an Affidavit would lie under these circumstances because 
you’d be getting the choice of eliminating the two mis­
demeanor or County Court Judges which I do not think was 
intended by the Court or by law so I will decline to accept 
the Affidavit of Prejudice and I will set a date for motions 
and the date for trial. I f you feel that you wish the matter 
reviewed within another Circuit Coiirt, another Court, why 
that certainly is within your province.

Mr. Jacobson: Your Honor, I have a—I have a motion 
prepared at this time wherein I move to dismiss this matter 
as a Circuit Court proceeding on the basis that Your Honor 
the Court, as a Circuit Court Judge lacks jurisdiction over 
the Defendant in that Section 324.17 (9) of the Wisconsin 
Statutes wherein the instant case has been transferred from 
Milwaukee County Court to the present Court sitting as an 
acting Circuit Court is unconstitutional [10] in its applica­
tion to the present case inasmuch as Your Honor has refused 
an Affidavit of Prejudice and that it is unconstitutional, 
that the Defendant’s rights are being violated under the 
14th Amendment, Now, if Your Honor wants this motion 
heard on the date when motions are heard, we will not be 
proceeding to the Supreme Court until this motion has 
been heard. If Your Honor wants to right now deny the 
motion, then we would have what we would consider a 
complete record for purposes of going to the Supreme 
Court on your writs.

Hearing on Motion to Accept Affidavit of Prejudice



193a

The C ourt: I will deny the motion to dismiss because of 
the constitutionality of the statute. I had this in mind here 
when—may I see my book—

Mr. Cannon: Your Honor, I think you ought to set a 
date for motion on it. The State hasn’t had an opportunity 
to see the motion.

The Court: It’s merely on the constitutionality of the 
statute which has existed for many, many years, saying I 
would rather have it tried by another Court.

Mr. Jacobson: If that’s Your Honor’s intention, that’s 
why I ’d like to have him deny it at this time so the record 
is perfected.

The Court: You ought to make clear what this motion 
gets at.

Mr. Jacobson: It’s primarily— and I want to [11] do this 
for the benefit of the State to make a complete record here if 
the Court doesn’t want to give time for consideration of brief 
on this. Your Honor, sitting as an acting Circuit Court 
Judge at this time, it is our position that you must accept 
the Affidavit of Prejudice, has denied that Affidavit of 
Prejudice on the basis of what went on in the County Court. 
We, therefore, take the position that you are still sitting 
as County Court Judge and you are not sitting as Circuit 
Court Judge and the statute if it permits you to sit as an 
acting Circuit Court Judge and still binds us by our County 
Court motions, then we take the position that it is uncon­
stitutional in its application, not on its face, but in its ap­
plication as to the facts of this case as they now stand before 
Your Honor. That’s our position on the record so that we 
have it very clear because we are going to proceed to the 
Supreme Court on this matter. We want the Court to 
know that; we want the State to know that so that we have 
every opportunity to make the record as they would like 
prior to our going to the Supreme Court.

Hearing on Motion to Accept Affidavit of Prejudice



194a

The Court: Well, as I say, I am sitting here as Circuit 
Court Judge appointed by Judge Steffes pursuant to the 
Wisconsin Statutes. I have denied your motion to dismiss. 
I have declined to accept the Affidavit of Prejudice because I 
feel that it is not provided for in [12] the Wisconsin Statutes.

Mr. Cannon: Judge, I would suggest as long as the mo­
tion has never been filed that the date be set for it. I don’t 
know what the motion is about except what Mr. Jacobson 
just said and I think it should be reviewed.

The Court: No, I feel it is within the prerogative of the 
Circuit Court Judge sitting in the Circuit Court to rule 
summarily or grant a date for motion. I chose to rule sum­
marily here that the motion should be denied. In the ab­
sence of that, I think I will set two dates.

Mr. Jacobson: Your Honor, are you adjourned at this 
time?

The Court: I will set November 7th for arraignment and 
any other motions by the Defendant; November 14th for 
any motions by the State and November 21st, 9:00 o’clock 
in the morning—

Mr. Jacobson: Could that be in the afternoon at 2:00. 
I have to be in Racine in the morning every Tuesday.

The Court: What date are you speaking of?
Mr. Jacobson: Well, the 7th, you set everything for 

Tuesday and I have to be in Racine every Tuesday morn­
ing. I f  you make it at 2 :00,1 could be here.

The Court: All right. November 7th will be [13] set for the 
arraignment and any motions, further motions by the De­
fendant. October 14th, any motions in reply by the State. 
In the absence of anything, the trial will be set for Novem­
ber 21st at 9 :00 in the morning in this Court unless directed 
otherwise.

Hearing on Motion to Accept Affidavit of Prejudice



195a

Mr. Jacobson: Well, Your Honor, could I ask that the 
Court begin the trial date other than on a Tuesday morn­
ing at 9 :00. I have to be in Racine every Tuesday morning. 
Could you make it at 2 :00 or could you make it a Wednes­
day?

The Court: That’s the only date my calendar will permit 
for a long time.

Mr. Jacobson: November 21st at 9 :00.
The Court: You will just have to arrange your calendar 

to accommodate this Court.
Mr. Jacobson: I asked the Court if it—
The Court: I have to do it that way, the way my calendar 

sits as it is.
Okay, that’s it.

Hearing on Motion to Accept Affidavit of Prejudice

[14] State of W isconsin,
County of M ilwaukee, s s .

I, Judith Spanheimer, Official Reporter of County Court, 
Branch 12, of Milwaukee County, hereby certify that the 
foregoing constitutes a true, correct and complete transcript 
of my Stenotype notes of the testimony and other proceed­
ings taken upon the above entitled action.

/ s /  Judith Spanheimek



196a

Stipulation With Reference to Approval of Transcript

Case No. G-4718

I t  I s  H ereby S tipulated by and between the respective 
parties T homas M. Jacobson, appearing on behalf of the 
Defendant-Appellant, and David J. Cannon , appearing on 
behalf of the Plaintiff-Respondent, that service of a pro­
posed approval of transcript in the above entitled action 
is hereby waived and that the foregoing transcript of 
testimony contains all of the testimony and evidence intro­
duced upon the trial of the action, the decision of the 
trial court announced orally in open court, and argument 
upon the defendant-appellant’s motion for a new trial.

I t  I s  F urther S tipulated that the foregoing Approval 
of Transcript may be signed and settled by the trial judge 
without further notice to any of the parties.

Dated at Milwaukee, Wisconsin, this 11th day of June, 
1968.

/ s /  T homas M. Jacobson 
Thomas M. Jacobson

/ s /  E. Michael McCann,
David J. Cannon 
Asst. D. A. for
District Attorney Milwaukee County



197a

Certificate

And because the foregoing evidence, rulings, instruc­
tions, exhibits and exceptions do not appear of record, I, 
the undersigned, the judge who tried said action, and due 
motion of the signing and settling of the transcript having 
been waived, do settle and sign this Approval of Transcript 
to the end that the same may be part of the record herein 
this 11 day of June, 1968, and I certify that the above and 
foregoing transcript contains all of the evidence taken, 
offered, or received on the trial of said action and includes 
all of the testimony taken, offered, or received on said 
trial and includes all of the exhibits received on said trial.

F. R yan D uffy, J r.
Acting Circuit Judge



198a

Certificate of Transmittal to Supreme Court

I, F rancis X. M cCormack Clerk of Circuit Court of said 
County hereby certify that the attached papers are the 
original records filed and on record in this office in the 
above action which are necessary to this appeal or writ of 
error pursuant to Supreme Court Rule One; this certificate 
is made for the purpose of transmitting these records 
to the Supreme Court of Wisconsin.

W itness my signature and official seal 
(S eal) this 3rd day of July 1968

F rancis X. M cCormack 
Clerk

By Rose C. Nugent

Deputy Clerk



199a

Notice of Motion

STATE OF WISCONSIN 
IN SUPREME COURT

August Term, 1968 State No. 38

State of W isconsin, 
Respondent,

F I L E D  
Feb. 1, 1968 

Franklin W. Clarke 
Clerk, Supreme Court 
Madison, Wisconsin

v.

James E dmund Groppi, 
Appellant.

T o :

R obert W . W arren 
Attorney General 
State Capitol 
Madison, Wisconsin

E. M ichael M cCann  
District Attorney 
Milwaukee County 
Milwaukee, Wisconsin

Please take notice that the appellant, James Groppi, 
shall present the motion, a true copy of which is attached 
hereto, to the Supreme Court of the State of Wisconsin 
for a Motion for Rehearing of the above entitled matter 
which was decided and filed with the Clerk of Supreme 
Court on the 4th day of February, 1969.



200a

Notice of Motion

Dated at Milwaukee, Wisconsin, this 10th day of Feb­
ruary, 1969.

T homas M. Jacobson

110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

R obert E. S utton 
710 North Plankinton Avenue 

Milwaukee, Wisconsin 53203

Jack Greenberg 
M ichael M eltsner 
H aywood B urns 

10 Columbus Circle 
New York, New York 10019 

Attorneys for Appellant



201a

The appellant above named, James Edmund Groppi, by 
his attorney, Thomas M. Jacobson, hereby moves that he 
be granted a rehearing in the above entitled matter.

Dated at Milwaukee, Wisconsin, this 10th day of Feb­
ruary, 1969.

Motion for Rehearing

T homas M. Jacobson

110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

R obert E. S utton

710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Jack Greenberg 
M ichael M eltsner 
H aywood B urns 

10 Columbus Circle 
New York, New York 10019 

Attorneys for Appellant



202a

Judgment

Be it remembered, That at a term of the Supreme Court 
of the State of Wisconsin, begun and held at the Capitol, 
in Madison, the seat of government of said State, on the 
Second Tuesday of August A.D. 1968, on the 67th day of 
the term, to-wit: On the Fourth day of February A.D. 
1969, Present E. Harold Hallows, Chief Justice, Horace W. 
Wilkie, Bruce F. Beilfuss, Nathan S. Hefferman, Leo B. 
Hanley, Connor T. Hansen and Robert W. Hansen, Justices 
of said Court, the following proceedings were had, Inter 
Alia, to wit:

S tate of W isconsin,
Respondent,

v.

James E dmund Groppi,
Appellant.

This cause came on to be heard on appeal from the judg­
ment and order of the Circuit Court of Milwaukee County 
and was argued by counsel. On consideration whereof, 
it is now here ordered and adjudged by this Court, that 
the judgment and order of the Circuit Court of Milwaukee 
County, appealed from in this cause, be, and the same are 
hereby affirmed.

Chief Justice Halloivs concurs.
Justices Wilkie and Heffernan dissent.
S tate of W isconsin,
S upreme Court ss.

Appeal from Circuit Court 
Milwaukee

County, State of Wisconsin



203a

Judgment

I, F ranklin W. Clarke, Clerk of the Supreme Court 
of the State of Wisconsin, do hereby certify that I have 
compared the above and foregoing with the original order 
and judgment of the Court in the above entitled cause, and 
that it is a correct transcript therefrom, and of the whole 
thereof.

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said court, at Madison, this third day 
of April, A.D. 1969.

F ranklin W. Clarke 
Clerk of the Supreme Court 

of the State of Wisconsin



204a

Remittitur

No. 1536

October T erm 1968 

I n

SUPREME COURT 

STATE OF WISCONSIN

State No. 38 August Term, 1968

S tate of W isconsin,
Respondent,

v.

James E dmund Groppi,
Appellant.

I n d e x

Argument ..........................................................................  1

Judgment ..........................................................................  2

Opinion of the C ou rt....................................................... 3-13

Dissenting Opinion........................................................... 14-24

Concurring Opinion ......................................................... 25-26

Denial of Motion for Rehearing...................................  27

Notice of A ppea l............................................................... 28-29

Admission of Service....................................................... 30-31

Certificate o f C lerk...........................................................  32



205a

Opinion

On the 1st day of November, A.D. 1968, the same being 
the 31st day of the August, 1968, Term of said Court, the 
following proceedings were had in said cause in this Court:

State op W isconsin,

v .

Respondent,

James E dmund Groppi,
Appellant.

And now at this day came the said parties herein, by their 
attorneys, and this cause having been argued by Thomas 
M. Jacobson, Esq. for the said appellant and by Harold B. 
Jackson, Jr., Assistant District Attorney, for the said re­
spondent, and submitted, and the Court not being now suf­
ficiently advised of and concerning its decision herein, took 
time to consider of its opinion.

And afterwards to-wit on the 4th day of February, A. D., 
1969, the same being the 67th day of said term, the judg­
ment of this Court was rendered in words and figures fol­
lowing, that is to say:



206a

Opinion

S tate op W isconsin,

v.
Respondent,

James E dmund Groppi,
Appellant.

Opinion B y  J ustice L eo B. H anley

This cause came on to be heard on appeal from the judg­
ment and an order of the Circuit Court for Milwaukee 
County and was argued by counsel. On consideration where­
of, it is now here ordered and adjudged by this Court, that 
the judgment and order of the Circuit Court for Milwaukee 
County be, and the same are hereby, affirmed.

Justices Heffernan and Wilkie dissent. Opinion filed.
Chief Justice Hallows concurs. Opinion filed.



207a

Opinion

I n

SUPREME COURT 

STATE OF WISCONSIN

State No. 38 August Term— 1968

State or W isconsin,

v .
Respondent,

James E dmund Groppi,
Appellant.

A ppeal from a judgment and an order of the circuit court 
for Milwaukee county: P. R yan D uffy, Jr., County Judge 
of Milwaukee county, Presiding. Affirmed.

This appeal arises from an incident which occurred in 
the city of Milwaukee, on August 31, 1967. Prior to the time 
of the incident, and more particularly on August 30, 1967, 
the mayor of Milwaukee, Henry W. Maier, caused an emer­
gency proclamation to issue which ordered that:

“ . . . marches, parades, demonstrations, or other 
similar activities are prohibited upon all public high­
ways, sidewalks, streets, alleys, parks and all other 
public ways and public grounds within the City of 
Milwaukee between the hours of 4:00 o’clock P.M. and 
9 :00 o’clock A.M., commencing on this date, Wednesday, 
August 30, 1967, at 4:00 o’clock P.M. and terminating 
thirty (30) days thereafter.”

The appellant (hereinafter referred to as the “ defen­
dant” ) Father James Edmund Groppi, was arrested on



208a

Opinion

August 31, 1967, for allegedly violating the proclamation 
during the course of a civil rights demonstration. In the 
course of his arrest, defendant was alleged to have resisted 
the arresting officer. This appeal is concerned solely with 
the charge of resisting an officer. Any reference to the 
charge resulting from the violation of the proclamation is 
purely incidental.

Prior to the commencement of the trial on the “ resisting” 
charge, defendant moved for a change of venue on the 
grounds of community prejudice. The motion was denied 
on the ground that sec. 956.03 (3),1 Stats., provided for a 
change of venue for community prejudice only in felony 
matters. Resisting an officer is a misdemeanor.

Also prior to trial a subpoena was executed and served 
which ordered Henry W. Maier to appear to testify on 
behalf of the defendant on February 8, 1968. That sub­
poena was subsequently quashed following a hearing which 
resulted in the trial court’s finding that Mayor Maier could 
not offer any relevant testimony to the case before the court.

After a trial by jury, the defendant was determined to be 
guilty o f resisting an officer. He was fined $500 and sen­
tenced to six months in the house of correction. Sentence, 
however, was stayed, and defendant was placed on two 
years’ probation. The appeal is taken from the judgment of 
conviction and the order of sentence.

H a n l e y , J. The defendant presents the following issues 
on this appeal:

1. Is sec. 956.03(3), Stats., unconstitutional either on 
its face or as applied in this case1?

1 “ If a defendant who is charged with a felony files his affidavit 
that an impartial trial cannot be had in the county, the court 
may change the venue of the action to any county where an 
impartial trial can be had. Only one change may be granted 
under this subsection.”



209a

2. May a trial court quash a subpoena which has been 
properly issued and served upon a witness the defendant 
desired to call in his defense?

Unconstitutionality of Sec. 956.03(3), Stats.

Appellant claims the change of venue statute is uncon­
stitutional on several different grounds: First, that the 
statute, on its face, is a violation of due process as guar­
anteed by the Wisconsin and federal constitutions; second, 
that the face of the statute violates the equal protection 
clause of the federal constitution. And, finally, it is con­
tended that the statute was unconstitutionally applied in 
this case. In all cases, the reason for the alleged unconsti­
tutionality is the same, i.e., that the change of venue based 
on community prejudice is limited to felony cases.

We think that there is a sufficient difference between a 
felony and a misdemeanor to warrant the distinction.

“ . . . In most cases the place of imprisonment is 
different; the statute of limitations is twice as long 
for a felony as a misdemeanor; one charged with a 
felony is entitled to a preliminary hearing; the stigma 
of a felony is greater; and under the repeater statute, 
more severe penalties are authorized for felonies than 
for misdemeanors. . . .” State ex rel. Gaynon v. Krue­
ger (1966), 31 Wis. 2d 609, 620, 143 N. W. 2d 437.

Moreover, it would be extremely unusual for a community 
as a whole to prejudge the guilt of any person charged 
with a misdemeanor. Ordinarily community prejudice 
arises when a particularly horrendous crime has been per­
petrated. These are the only crimes that receive wide­
spread and prolonged attention from the news media. But 
the general public just does not become incensed at the 
commission of a misdemeanor.



210a

Opinion

The court also takes judicial notice of the vast number 
of misdemeanors that are prosecuted as opposed to fel­
onies. As a matter of necessity, the prosecution of mis­
demeanors has been simplified as much as possible by the 
legislature. This is not because the legislature is not con­
cerned with justice, but because society demands the effi­
ciency in the administration of justice be given considera­
tion along with absolute fairness.

This court faced a decision similar to the one in this case 
in deciding whether an indigent accused of a misdemeanor 
was entitled to the assistance of a court-appointed attorney 
in his defense. At that time the court stated:

“A  basic concern of this court must be to strive for 
greater fairness in the administration of criminal jus­
tice. This contemplates protection of the innocent from 
wrongful conviction, and a concern for the poor as 
well as for the affluent. A correlative consideration, 
nevertheless, must be to protect society from burdens 
that, if intolerable, might impair the administration 
of justice. Achieving the proper equilibrium between 
these important considerations inherently requires 
that standards be established, thus presenting a situa­
tion in which it is difficult to achieve an ideal result.” 
State ex rel. Plutshack v. Dept, of Health & Social 
Services (1968), 37 Wis. 2d 713, 721, 155 N. W. 2d 549, 
157 N. W. 2d 567.

The court decided in the Plutshack, case that counsel 
should be provided for all indigent defendants who were 
charged with a crime which was punishable by a maximum 
sentence of more than six months’ imprisonment. This was 
determined to be a reasonable cutoff point.



211a

Opinion

It is also important to recognize that in deciding the 
Plutshack case, the court was not faced with a statute 
which specifically denied the appointment of counsel to 
indigents charged with misdemeanors. On the contrary, 
the applicable statute, sec. 957.26,2 Stats., had recently 
been amended3 so that counsel could be provided in mis­
demeanor cases. Thus the court was free to adopt the six- 
month cutoff.

However, in this case, the applicable statute specifies 
that a change of venue based on community prejudice shall 
only be permitted in felony cases. Were we free to adopt 
our own cutoff point, we would establish it at over six 
months, as we did in reference to the appointment of coun­
sel. However, we are not willing to say that the cutoff 
point established by the legislature is necessarily arbitrary 
and capricious.

The court is aware that two other jurisdictions have 
considered whether a change of venue based on community 
prejudice can be limited to felony cases.4 Both decided it 
could not be without violating the due process clause of 
the Fourteenth amendment to the federal constitution.

2 “ 957.26 Counsel for indigent defendants charged with felony; 
advice by court. (1) A person charged with a crime shall, at his 
initial appearance before a court or magistrate, be advised of his 
right to counsel and, that in any case where required by the United 
States or Wisconsin constitution, counsel, unless waived, will be 
appointed to represent him at county expense if he is financially 
unable to employ counsel.”

3 Ch. 519, Laws of 1965, amended sec. 957.26(1). Previously 
that section provided for the appointment of counsel only when a 
defendant was charged with a felony.

4 Pamplin v. Mason (5th Cir. 1966), 364 Fed. 2d 1; State ex rel. 
Ricco v. Biggs (1953), 198 Ore. 413, 255 Pac. 2d 1055.



212a

Opinion

Those cases are not precedent for this court and their 
reasoning does not compel us to reach the same conclusion.4a

The United States Supreme Court held in Rideau v. 
Louisiana (1963), 373 U.S. 723, 83 Sup. Ct. 1417, 10 L. Ed. 
2d 663, that a denial of a change of venue, under the cir­
cumstances of that case,* 6 amounted to a denial of due pro­
cess. That case is distinguishable on two grounds. First, 
it involved a felony, as does every other case in the area 
of change of venue which has been dealt with by the Su­
preme Court. Second, the defendant put into the record 
his proof of community prejudice which was at least likely 
to influence the jury. No record of community prejudice 
was ever made in this case.

4a The United States Supreme Court recently considered whether 
a state could constitutionally deny a jury trial to persons accused 
of a misdemeanor. Duncan v. Louisiana (1968), 391 U.S. 145, 88 
Sup. Ct. 1444, 20 L. Ed. 2d 491.

The court held that every person had a fundamental right to a 
jury trial even in state prosecutions if he was charged with a 
“serious” crime, whereas no such right existed if a person was 
charged with a “ petty” offense. The court refused to draw a dis­
tinct line between a petty offense and a serious offense, but the 
majority did state that any crime punishable by two years’ im- 
prisonmen, or more, was a serious crime. The court further indi­
cated that, under federal law, a crime involving a maximum sen­
tence of six months, or less, was a petty offense. No opinion was 
expressed as to the classification of those crimes which involved 
a maximum sentence of more than six months hut less than two 
years.

In Wisconsin, no misdemeanor is punishable by more than one 
year of imprisonment.

6 The circumstances in Rideau, supra, were extreme. A twenty- 
minute film and sound track of the defendant’s being “ inter­
viewed” by the sheriff was shown over television on three separate 
occasions. During the course of the interview, the defendant ad­
mitted robbery, kidnapping and murder. The Supreme Court 
decided, without examining the transcript of the voir dire, that 
due process required a trial before a jury drawn from a com­
munity of people who had not seen and heard the televised 
“ interview.”



213a

Opinion

Appellant contends that because his motion for change 
of venue was denied, he had no opportunity to make a 
record of the community prejudice. This is simply not 
true. Both the federal and state constitutions guarantee 
to every accused the right to a fair and impartial trial.6 A 
verdict from a prejudiced jury is void7 whether or not a 
change of venue or a continuance was requested.8 On 
motions after verdict or on a petition for habeas corpus, 
a person convicted of either a misdemeanor or a felony 
can offer proof that he was denied his constitutional right 
of a fair and impartial trial.9

The right to a fair and impartial trial is not synonymous 
with a change of venue. The only connection between a 
change of venue and a fair and impartial trial is that the 
former is one method of insuring the latter. Other methods

6 Art. I, see. 7, Wisconsin Constitution:
“ In all criminal prosecutions the accused shall enjoy the right 

. . .  to a speedy public trial by an impartial jury . . . ”
Sixth amendment, United States Constitution:
“ In all criminal prosecutions, the accused shall enjoy the right 

to a speedy and public trial, by an impartial jury . . . ”
7 “ Petitioner’s detention and sentence of death pursuant to the 

void judgment is in violation of the Constitution of the United 
States and he is therefore entitled to be freed therefrom. . . . ” 
(Emphasis supplied.) Irvin v. Dowd (1961), 366 U.S. 717, 728, 
81 Sup. Ct. 1639, 6 L. Ed. 2d 751.

8 This seems to be the only logical conclusion following the deci­
sion in Sheppard v. Maxwell (1966), 384 U.S. 333, 86 Sup. Ct. 1507, 
16 L. Ed. 2d 600. The verdict of the jury was set aside based on 
prejudice even though no motion for a change of venue or con­
tinuance was made.

9 The express holding of Irvin v. Dowd, supra, seems to be that 
a statute which denies a change of venue is not unconstitutional, 
either on its face or in its application, so long as the statute is 
not relied upon to deny a person his right to a fair and impartial 
trial.



214a

Opinion

of insuring a fair trial are voir dire proceedings and con­
tinuance.10 11

The defendant here was not denied due process when his 
change of venue was denied because of the applicable 
statute. Should a rare case arise where community prej­
udice threatens to influence the verdict in a misdemeanor 
case, the defendant can rely on the antiseptic measures of 
continuance and voir dire proceedings. In the event that 
these measures are still not sufficient to provide an im­
partial jury, the verdict can be set aside after trial based 
on the denial of a fair and impartial trial.

I f  the defendant in the present case feels that he was 
denied a fair and impartial trial (no such claim has been 
made to this court), the issue can be raised and evidence 
can be presented on a motion for a new trial based on a 
denial of a fair and impartial trial.11

Quashing a Subpoena

Defendant also contends that it is unconstitutional to 
deny to a defendant in a criminal action the right to sub­
poena any witness even if the witness’ testimony is ad­
mittedly irrelevant.

The Sixth amendment to the United States Constitution 
and art. I, sec. 7, of the Wisconsin Constitution guarantee

10 “ The remedies in publicity cases are change of venue, con­
tinuance, and careful selection of a jury.” State v. Woodington 
(1966), 31 Wis. 2d 151, 166, 142 N. W. 2d 810, 143 N. W. 2d 753.

11 Sec. 958.06(1), Stats., provides:
“ Within one year after the trial and on motion of the defendant 

the court may grant a new trial . . . ” (Emphasis supplied.)
The trial in this case ended on February 9, 1968. Some motions 

after verdict were presented on February 12, 1968, and denied. 
It does not appear that the presentation of those motions would 
foreclose the presentation of a motion for a new trial based on 
an entirely different ground.



215a

Opinion

to a defendant in a criminal case the right “ to have com­
pulsory process” to obtain witnesses in his behalf. This 
right is now incorporated in the due process clause of the 
Fourteenth amendment to the federal constitution and 
applies equally to the several states.12 It is also worthy of 
note that there has been no attempt to limit this right to 
persons charged with a felony.13

In this case, the defendant subpoenaed the mayor of Mil­
waukee. After the subpoena issued, an assistant city at­
torney, representing the mayor, moved for an order to 
show cause why the subpoena should not he quashed. The 
day before the trial a hearing was held on that order. The 
attorney for the city argued that the mayor had no per­
sonal knowledge of any facts which would be material to 
the resisting arrest charge against Father Groppi. Counsel 
for the defendant contended that they hoped to establish 
by the mayor’s testimony either that the proclamation was 
unconstitutional on its face or that it was unconstitutionally 
issued. The judge took the motion to quash under con­
sideration until the next day.

The following morning, the defendant withdrew a motion 
to dismiss the charge based on the unconstitutionality of 
the proclamation because that issue was pending in the 
federal court and could best be determined there. The trial 
court then quashed the subpoena because the issue of the 
unconstitutionality of the proclamation had been with­
drawn. The defendant insisted at that point, and during 
the trial, that he had a constitutional right to call the 
mayor.

12 Washington v. Texas (1967), 388 U.S. 14, 87 Sup. Ct. 1920 
18 L. Ed. 2d 1019.

13 Sec. 955.04, Stats., provides:
“Any defendant shall have compulsory process to compel the 

attendance of witnesses in his behalf.”



216a

Opinion

The defendant has explained in his brief on this appeal 
why the testimony of the mayor was relevant to this case:

. . had the defendant been able to demonstrate by 
the testimony of Mayor Maier that the ordinance under 
which he was initially arrested was illegally promul­
gated either because of the procedures used or because 
it was unconstitutional or because it was applied un­
constitutionally there can be no question but that the 
appellant could have legitimately challenged his arrest 
as illegal and unauthorized. . .

We first determine that a defendant does not have an 
unqualified right to subpoena witnesses. This right is no 
more absolute than any of the other rights guaranteed by 
the constitution.

It is readily apparent that a defendant suffers no consti­
tutional deprivation when he is limited to subpoenaing 
witnesses who can offer relevant and material evidence on 
his behalf. The proposition is so apparent on its face that 
it is difficult to find legal citation to support it. However, 
at least one English case has considered this precise issue. 
In King v. Baines (1909), 1 K.B. 258, the defendants, who 
were demonstrating for women’s suffrage, were arrested 
for breach of the peace and unlawful assembly. They sub­
poenaed Prime Minister Herbert Henry Asquith and Home 
Secretary Herbert John Gladstone to testify at their trial. 
The subpoenas were subsequently set aside upon proof that 
neither subpoenaed party could give any relevant testimony 
at the trial. The setting aside of the subpoenas was upheld 
on appeal.

We think a subpoena is properly quashed when a party 
is unable to give relevant evidence.



217a

Opinion

We also decide that the testimony which the defendant 
sought from Mayor Maier was immaterial to the resisting 
arrest charge. It is not necessary to decide whether that 
testimony would have been relevant if the constitutionality 
of the proclamation was in issue. That issue was specifically 
withdrawn from this case.

In the absence of some showing by the defendant that 
the witness was necessary for his defense, the quashing 
of the subpoena is not a violation of a defendant’s rights 
to compulsory process.

We conclude that sec. 956.03(3), Stats., is constitutional 
and that the trial court’s judgment of conviction and order 
of sentence were proper.

By the Court.—Judgment and order affirmed.



218a

H effernan, J. (dissenting) I respectfully dissent from 
the opinion of the Court insofar as it holds sec. 956.03, 
Stats., prohibits a change of venue in misdemeanor cases 
and that such legislative prohibition is constitutional.

To understand what the majority has done, it is necessary 
to review the facts. It is crystal clear from the record that 
the defendant moved for a change of venue on the basis of 
community prejudice. Such prejudice was alleged in the 
underlying affidavits supporting the motion. The defen­
dant’s trial counsel also asked that the court take judicial 
notice of the “massive coverage by all news media in this 
community of the activities of this defendant . . .  or, in the 
alternative, that the defendant be permitted to offer proof 
of the nature and extent thereof, its effect upon this com­
munity and on the right of defendant to an impartial jury 
trial.” This motion was denied in its entirety. The reason 
for such a denial, including the reason for the refusal to 
hear evidence of prejudice is made clear by the remarks of 
the trial judge following the denial of the motion.

Counsel asked if the court was denying the motion “be­
cause the statute will not permit a change of venue on the 
grounds of community prejudice . . . .”  The court replied, 
“ No, I ’m denying the motion . . . because this is a mis­
demeanor case and not a felony. And the Wisconsin Statute 
does not provide for a change of venue in a misdemeanor 
matter.”

It is thus apparent that the judge refused to hear evi­
dence on community prejudice because he concluded that the 
statute gave him no jurisdiction to order a change of venue 
even if community prejudice were shown.

This, I conclude, is a clear error of law, and the statute 
as so construed was applied unconstitutionally. The statute

Dissenting Opinion



219a

is procedural only. It merely specifies the duty of the judge 
when prejudice is apparent and the defendant is charged 
with a felony. It is silent upon the duty of a judge in the 
event one charged with a misdemeanor asks for a change 
of venue because of community prejudice. The prohibition 
that the trial judge found, at least by implication, in the 
statute is not apparent to this writer.

We have heretofore held, in State v. Nutley (1964), 24 
Wis. 2d 527, 129 N.W. 2d 155, overruling, sub silentio, State 
ex rel. Carpenter v. Backus (1917), 165 Wis. 179, 161 N.W. 
759, to the contrary, that a change of venue for community 
prejudice is a constitutional right independent of the legis­
lative procedural implementation. In Nutley, page 566, 
we pointed out that the portion of sec. 956.03 (3), Stats., 
providing, “ Only one change may be granted under this 
subsection,” was subject to the due process limitations of 
the fourteenth amendment to the United States Constitu­
tion.

In effect, this court recognized, at least in a felony case, 
that the power of a court to order a change of venue arose 
not from the statute but from its inherent power to act to 
assure a fair trial, and, as required, by the fourteenth 
amendment.

Are there any reasons why this constitutional assurance 
of a fair trial by the device of change of venue should be 
available only to one charged with a felony and not to an 
alleged misdemeanant?

The majority opinion concludes that it is just and proper 
to afford fewer constitutional guarantees of fairness to a 
misdemeanant than to a felon. On the face of it, this prop­
osition runs counter to all principles of Anglo-American 
jurisprudence; however, factual distinctions, it is contended, 
make it fair to afford fewer protections to one charged with

Dissenting Opinion



220a

a misdemeanor. It is asserted in the opinion of the majority 
of the Court that the penalties are more severe in the case 
of felonies. This is, of course, true, but it is a fact entirely 
irrelevant to the issue. It is, in essence, an assertion that 
an unfairness that results in only a small sentence is of 
such a minor consequence as to be de minimis. The mere 
statement of the proposition is its own refutation. Con- 
cededly, the legislature has seen fit to confer additional 
safeguards to defendants accused of major crimes (pre­
liminary hearing, e .g .); however, it is powerless to reduce 
the minimum safeguards of fairness that are assured by 
both the Wisconsin and United States Constitutions to all 
criminal defendants.

The opinion of the court also asserts that community 
prejudice is not aroused by the commission of a misde­
meanor and that, therefore, a change of venue is needless. 
The simple answer to this proposition is that if there is no 
community prejudice, it is within the discretion of the trial 
judge to deny a change of venue. This determination is 
dependent upon the facts as they subjectively appear and 
not upon the objective nature of the crime or whether it is 
labeled a felony or a misdemeanor. The identity of the 
defendant and his image in the community is also relevant 
and may be a determining factor in whether or not there is 
community prejudice, irrespective of the nature or serious­
ness of the crime charged.1 To say that the public is not

Dissenting Opinion

1 The attorney general in his addendum to the district attorney’s 
brief acknowledged that, “ Appellant is a controversial figure, but 
not only in Milwaukee county.” While this statement was made 
by the attorney general to show that a trial in another county 
might not result in a trial free from prejudice, it is equally pro­
bative of the assertion that the defendant could not have received 
a fair trial anywhere in the state. This, however, is no reason 
why a change of venue should not have been granted, for under



221a

prejudiced or enraged by the commission of a misdemeanor 
begs the question. That is precisely what a hearing for a 
change of venue is intended to determine, and this is what 
the defendant herein sought to prove. For this Court to 
decree that prejudice will henceforth not exist in a trial for 
a misdemeanor is reminiscent of King Canute’s edict to 
hold back the tides.

It is, of course, true that it will be only the unusual and 
infrequent misdemeanor cases that will become a cause 
celebre and arouse popular passions. Granting the premise, 
on which the majority opinion is in part based, that there 
will be few misdemeanors that will arouse the emotions of 
the public, how can the rare case so clog the courts with 
motions for change of venue that the efficient and expedi­
tious disposition of criminal cases will be in jeopardy. The 
majority opinion’s fears are of a bogeyman of court con­
gestion which its own reasoning shows to be without foun­
dation. Moreover, there is no reason why this Court should 
assume that motions for change of place of trial will be 
abused or that our courts are so supine as to tolerate such 
abuse.

While it may be conceded that proceduraly it is within the 
legislature’s power to adopt more expeditious methods of 
handling misdemeanors than felonies, it may not do so if 
constitutional rights are thereby encroached upon. The 
legislature may grant the right to a preliminary hearing to 
a felon, but not to a misdemeanant, but this right is statu­
tory not constitutional. For example, it cannot, under the

Dissenting Opinion

Nutley, supra, this court has decided that the defendant is not 
remediless after one change of venue. If it developed that a 
fair trial could have been held nowhere in the state, a motion 
for continuance would then have been appropriate. The first 
obligation of the trial court was to consider a change of venue 
so the defendant could be speedily tried.



222a

aegis of greater efficiency in the administration of justice, 
deny misdemeanants the right to jury trial guaranteed by 
the Wisconsin Constitution. While efficiency and economy 
are of great significance in cases where the courts are free 
to act one way or the other, they have no place in the situa­
tion now before us, where this court, as well as the legis­
lature, is answerable to the Constitution.

The recent United States Supreme Court decision, Dun­
can v. Louisiana (May 20, 1968), ------ U.S. --------, pointed
out that under the sixth amendment and the fourteenth 
amendment to the United States Constitution petty of­
fenses could be tried before a judge only. The decision, of 
course, does not obviate the necessity for a jury trial for 
misdemeanors in a state like Wisconsin, where a jury trial 
is available to all defendants. Duncan, however, makes it 
crystal clear that a trial, before whomsoever held, must be 
fair. Justice Harlan, although dissenting in Duncan and 
agreeing that a state by its own constitution should be able 
to determine the necessity of a jury trial, stated there were 
nevertheless certain prerequisites to a system of ordered 
liberty, one of them being a fair trial. He said, “ I should 
suppose it obviously fundamental to fairness that a ‘jury’ 
means an ‘impartial jury.’ ” (P. 181, 182, slip sheet).

In the instant case, a jury is guaranteed by the Wisconsin 
Constitution, and Duncan makes it clear that a jury must 
be impartial. A  litigant is constitutionally entitled to invoke 
the device of change of venue to determine whether or not 
a trial may be had free from the contamination of commu­
nity prejudice. Where the trial of a misdemeanant is before 
a judge, under Wisconsin law he may file an affidavit of 
prejudice if he thinks it necessary to assure a fair trial. 
He should not have a lesser right to a fair and impartial

Dissenting Opinion



223a

trial if he invokes his constitutional prerogative of trial by 
jury.

Nor is State ex rel. PlutsJmck v. Department of Health, 
and Social Services (1968), 37 Wis. 2d 713, 155 N.W. 2d 549, 
157 N.W. 2d 567, relevant to this case. Contrary to the 
assertion of the majority opinion, this court, therein, was 
not influenced or controlled by sec. 957.26, Stats. It was 
controlled by the rulings of the United States Supreme 
Court which have been interpreted to mean that there shall 
he counsel whenever a “ substantial sentence” may be im­
posed. The opinion of the Court in Plutshack was influ­
enced by legislation only to the extent that we concluded 
that congressional legislation (Criminal Justice Act of 
1964) was declaratory of constitutional requirements.

In the instant case we have elevated the legislature’s 
enactment of sec. 956.03, Stats., to the status of a limita­
tion on the constitutional rights of citizens accused of crime. 
To do so is, I believe, a misinterpretation of a statute the 
legislature intended to be procedural only and constitutes 
an abdication of a constitutional responsibility of this 
Court.

We are herein in no way bound or guided, as we said we 
were in Plutshack, by legislation that appears to us to be 
declaratory of a proper constitutional standard already 
found by the Supreme Court of the United States. In the 
instant case what the legislature had to say about change 
of venue in felony cases is irrelevant to a constitutional 
right of an alleged misdemeanant.

This writer is of the opinion that the trial court and the 
majority of this Court interpreted the statute in such a 
way as to deprive misdemeanants of important constitu­
tional rights. In State ex rel. Ricco v. Biggs (1953), 198 
Or. 413, 255 Pac. 2d 1055, the Oregon Supreme Court,

Dissenting Opinion



224a

faced with a similar statute, pointed out that such au 
interpretation violated the Oregon constitutional guaranty 
of a fair trial (similar to Wisconsin’s), as well as the due 
process clause of the fourteenth amendment. That court 
pointed out, as does this dissent, that the legislative enact­
ment does not govern whether a misdemeanant is entitled 
to a change of venue, for the right to a changed place of 
trial depends not upon legislative consent but upon the 
constitutional right of fair trial.

It is the opinion of this writer that the inherent power 
of a court to order a change of venue for community 
prejudice is beyond question.

This writer would also conclude that in any criminal 
case a court of justice has the inherent duty, where the 
question is raised, to inquire into the matter of community 
prejudice and to hold a hearing in order to exercise its 
discretion in respect thereto. This duty is constitutional, 
not statutory, and in proper circumstances should be 
exercised sua sponte.

Nor can I agree with the majority opinion’s conclusion 
that even though a change of venue could or should have 
been granted, a fair trial is still assured by the procedures 
of the voir dire and motions after verdict.

This is hardly an argument for efficient judicial ad­
ministration for if an atmosphere of prejudice or unfair­
ness can be detected prior to trial, it is folly to spend the 
public’s money on a trial that will be set aside.

No doubt, motions after verdict are useful safety devices 
to correct error that perhaps has already occurred, but 
the goal of the proper administration of justice is the 
avoidance of error. The device of change of venue seeks 
the avoidance of error.

Moreover, the test of community prejudice is not whether 
an impartial jury can or cannot be impaneled but whether

Dissenting Opinion



225a

there is a “ reasonable likelihood” that community prejudice 
exists. Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S. Ct. 
1245, 16 L. Ed. 2d 314.

The American Bar Association Advisory Committee on 
Fair Trial and Free Press at pages 126, 127, and 128 
discussed the efficacy of the voir dire. as a guaranty of a 
fair trial:

“ It has in many jurisdictions been common practice 
for denial of such a motion to be sustained if a jury 
meeting prevailing standards could be obtained. There 
are two principal difficulties with this approach. First, 
many existing standards of acceptability tolerate con­
siderable knowledge of the case and even an opinion 
on the merits on the part of the prospective juror. 
And even under a more restrictive standard, there 
will remain the problem of obtaining accurate answers 
on voir dire— is the juror consciously or subscon- 
sciously harboring prejudice against the accused re­
sulting from widespread news coverage in the com­
munity? Thus if change of venue and continuance are 
to be of value, they should not turn on the results 
of the voir dire; rather they should constitute in­
dependent remedies designed to assure fair trial when 
news coverage has raised substantial doubts about 
the effectiveness of the voir dire standing alone.

“ The second difficulty is that when disposition of a 
motion for change of venue or continuance turns on 
the results of the voir dire, defense counsel may be 
placed in an extremely difficult position. Knowing 
conditions in the community, he may be more inclined 
to accept a particular juror, even one who has ex­
pressed an opinion, than to take his chances with other, 
less desirable jurors who may be waiting in the wings.

Dissenting Opinion



226a

And yet to make an adequate record for appellate 
review, he must object as much as possible, and use up 
his peremptory challenges as well. This dilemma 
seems both unnecessary and undesirable. . . .

“ The suggestion of some courts that . . . [failure to 
exhaust all peremptory challenges] amounts to a 
waiver [of a right to transfer or continuance] seems 
to require the defendant to take unnecessary risks. If 
the defendant has satisfied the criterion for the grant­
ing of relief, it should not matter that he . . . has failed 
to use his peremptory challenges, perhaps because he 
prefers the ills he has to others he has not yet seen.”

In State v. Nutley, supra, pages 565, 566, this Coirrt 
accepted the conclusion that a voir dire does not necessarily 
assure a trial free from the contamination of community 
prejudice:

“ The United States supreme court has held that 
even if a defendant has examined prospective jurors 
at length during a voir dire, and even if the jurors 
state that they will evaluate the issues only on the evi­
dence presented during the trial, a defendant may still 
be denied a fair trial if prejudicial pretrial publicity 
is of such quantitative and qualitative magnitude that 
it is probable that the jurors predetermined the issue 
despite their protestations to the contrary. This rule 
of Fourteenth amendment due process is applicable 
even though the defendant may have received one 
change of venue, pursuant to a state statute similar 
to sec. 956.03, Stats.”

True, this court has in numerous cases looked to the 
voir dire to determine that a trial was free from the taint

Dissenting Opinion



227a

of prejudice. This technique, while efficacious in some 
cases, is directed primarily to the question of whether a 
trial judge abused his discretion in determining that the 
prejudice alleged or proved was not of such a nature as to 
prevent a fair trial. Here, abuse of discretion is not in 
question. The trial judge here relied upon his interpreta­
tion of a statute and concluded that he was precluded by 
law from granting a change of venue. Discretion was not 
exercised. Hence, the error was one of law and the usual 
voir dire cases are not directed to the issue raised herein.

Mason v. Pamplin (1964), 232 F. Supp. 539, 540, 541, 542, 
543 (Affm’d Pamplin v. Mason (1966), 364 F. 2d 1), a case 
involving the right of a change of venue in a misdemeanor 
case where the Texas statute referred only to felonies, 
stated:

“ The record reflects that the prospective jurors, who 
apparently qualified as a group, stated that they did 
not know petitioner; that they had not formed any 
opinions in the case; and that they had no prejudices 
against the Negro race, or against a Negro acting as 
counsel for petitioner. No testimony on this question, 
other than the sworn statement of petitioner’s counsel, 
was offered at the hearing on the motion for new 
trial. . . .

“ Whatever doubt may have existed prior to 1960 
with respect to the inherent right of an individual to a 
change of venue if he demands a jury trial, and it is 
made to appear that in the county where the prosecu­
tion is begun an impartial jury cannot be impaneled, 
was dispelled by the Supreme Court in Irvin v. Dowd, 
366 U.S. 717 . . . ,  when it recognized the proposition 
that a transfer may become a necessity, depending 
upon ‘the totality of the surrounding facts.’ Such

Dissenting Opinion



228a

‘totality’ cannot be achieved if the court is precluded 
by law from hearing any competent evidence which 
may be offered before, during or after trial for the 
purpose of showing one’s inability to obtain a fair and 
impartial trial in a particular county. . . .

“ The hearing on the change of venue is the first and 
most important step in ascertaining whether or not 
the accused can receive a fair and impartial trial in 
the county in which the prosecution is pending. The 
void which is left when the initial hearing is dispensed 
with could hardly be filled in a misdemeanor case, any 
more than it could in a felony case, by the subsequent 
voir dire examination of prospective jurors in a group, 
or by producing at a hearing on a motion for new trial 
testimony the Court has previously refused to hear. . . .

“ I f the allegations made by [petitioner] had been 
found to be true [at a venue hearing], he would have 
been entitled to a change of venue, irrespective of the 
fact that the jurors themselves as a group indicated 
that they had no prejudices. As the Supreme Court 
said in Dowd: ‘No doubt each juror was sincere when 
he said that he would be fair and impartial to peti­
tioner, but the psychological impact requiring such a 
declaration before one’s fellows is often its father.’ 
366 U.S. 717. . . . ”

The denial of the defendant’s motion, which in the alter­
native asked for a hearing on community prejudice, denied 
the defendant (contrary to the assertion of the majority 
opinion) an opportunity “ to make a record of community 
prejudice.” This is true because the judge made it clear 
that in the case of a misdemeanor, community prejudice 
was irrelevant to a change of venue—there was just no

Dissenting Opinion



229a

statutory authority for such change. In motions after 
verdict defendant asked for a new trial on the ground, 
among others, that the court erred in denying the motion 
for change of venue on the assumption that the statute 
applied only to felony cases. This motion was again denied. 
The defendant also asked for a new trial on the ground 
that the one accorded him was unfair.

The defendant’s motion wTas denied without hearing or 
explanation. It is apparent that the trial judge, relying 
on his interpretation of the law, refused to look to the 
alleged facts of community prejudice, and afforded the 
defendant no opportunity to make a record.

I would reverse the judgment of the circuit court and 
order a new trial, directing the trial court that, in the event 
a motion for change of venue is made, to exercise its dis­
cretion to determine whether or not the facts adduced at 
hearing warrant the granting of a change of venue.

I am authorized to state that Mr. Justice Wilkie joins 
in this dissent.

Dissenting Opinion



230a

H allows, C. J. (concurring) I concur in the result only 
of the majority opinion because I believe with the minority 
that an accused has a constitutional right to a fair trial 
in misdemeanor cases and to attain that end may have a 
change of venue if he shows community prejudice. The 
minority opinion well states the view that sec. 956.03(3), 
Stats., is regulatory only of this basic right to a fair trial 
and is not exclusive by implication. The right to a change 
of venue to secure a fair trial is consistent with my belief 
that an accused has a constitutional right to an attorney 
in all misdemeanor cases, which was expressed in Spark­
man v. State (1965), 27 Wis. 2d 92, 102, 133 N.W. 2d 776, 
and again in the dissent in State ex rel. Plutshack v. HdSS 
Department (1968), 37 Wis. 2d 713, 727, 155 N.W. 2d 549, 
157 N.W. 2d 567.

I differ with the minority in its remedy in this case. To 
these facts I would apply the harmless-error rule as stated 
in Whitty v. State (1967), 34 Wis. 2d 278, 149 N.W. 2d 557, 
cert, denied 390 U.S. 959. Not every violation of a consti­
tutional right requires a reversal or a new trial. Prejudice 
resulting from error or the denial of a constitutional right 
must be shown. In the instant case, the defendant had no 
difficulty in selecting and obtaining a satisfactory jury 
and one which on the record he does not claim was biased 
or unfair.

The exercise of the constitutional right to a change of 
venue on the ground of community prejudice is a means to 
secure an unprejudiced and fair jury so that a fair trial 
may be assured. I f such a saturation of prejudice exists 
in a community from which the jury is drawn so as to 
make it difficult to select and obtain an impartial jury, 
then it is better to change the venue of the case than to

Concurring Opinion



231a

waste time attempting to find an unprejudiced jury. But 
a juror’s knowledge of events is to be distinguished from 
prejudice or predetermined opinion. One may have knowl­
edge without prejudice. The members of a jury may be 
informed without the jury being prejudiced. I think also 
that community prejudice has little or no effect on a wit­
ness. The argument that a witness will testify differently 
in one county than he will in another is unconvincing. No 
matter where the witness testifies, he must live in the com­
munity from which he comes.

On the facts of this case, I see no reason for a reversal.

Concurring Opinion



232a

Order Denying Motion for Rehearing

And afterwards to-wit on the 1st day of April, A.D., 
1969, the same being the 87th day of said term, the follow­
ing proceedings were had in said cause in this Court:

S tate of W isconsin,

y.
Respondent,

James E dmund Gkoppi,
Appellant.

The Court being now sufficiently advised of and con­
cerning the motion of the said appellant for a rehearing 
in this cause, it is now here ordered that said motion be, 
and the same is hereby, denied without costs.



233a

Notice of Appeal
to the Supreme Court of the United States

STATE OF WISCONSIN 

I n S upreme Court

August Term, 1968

State of W isconsin,

v.

James E dmund Groppi,
Appellant.

Notice is hereby given that James Edmund Groppi, the 
appellant above-named hereby appeals to the Supreme 
Court of the United States from the final order of the 
Supreme Court of Wisconsin entered on February 4, 1969 
affirming a judgment of conviction against appellant, re­
hearing of which was denied on April 1, 1969.

The appeal is taken pursuant to 28 U.S.C. Section 1257
( 2) .

Appellant was convicted of the crime of resisting an 
officer and was fined $500.00 and sentenced to six months 
in the House of Correction which was stayed and defendant 
placed on two years probation.

The Clerk will please prepare a transcript of the record 
in this cause and transmission to the Clerk of the Supreme 
Court of the United States and include in said transcript 
the entire record before the Supreme Court of Wisconsin.

The following question is presented by this appeal: 
Whether Section 956.03(3) Wisconsin Statutes violates the 
Due Process and Equal Protection Clauses of the Four­
teenth Amendment to the Constitution of the United States.

T homas M. Jacobson 
Attorney for Appellant

State No. 38 

Respondent,



234a

Certification

I, Franklin W. Clarke, Clerk of the Supreme Court of 
the State of Wisconsin, do hereby certify that the foregoing 
are true and complete copies of the proceedings before this 
Court No. 38, August Term, 1968, and of the opinion of 
this Court in said cause, and constitute all of the record 
remaining in my custody, the balance of the record referred 
to in the attached notice of appeal having been remitted 
to the Circuit Court for Milwaukee County, on the 3rd day 
of April, 1969.
[seal]

In witness whereof, I have hereunto set my 
hand and affixed the seal of said Court, at 
Madison, Wisconsin, this 14th day of May,
1969.

F ranklin W. Clarke 
Clerk of Supreme Court, Wisconsin









MEILEN PRESS INC. —  N. Y. C. 219











_________________________________________________________ ^

I n  t h e

^uprnttp dmtri of tl?£ MnttpJi States
October T erm, 1970 

No. 26

James E dmund Groppi,
Appellant,

v.

S tate op W isconsin,
Appellee.

ON APPEAL FROM THE SUPREME COURT OF WISCONSIN

REPLY BRIEF

Jack Greenberg
E lizabeth B . D ubois 

10 Columbus Circle 
New York, New York 10019

M ichael M eltsner
Columbia Law School 
435 West 116th Street 
New York, New York 10027

A nthony  G. A msterdam 
Stanford Law School 
Stanford, California 94305

H aywood B urns
112 West 120th Street 
New York, New York 10027

T homas M. Jacobson
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

R obert E. S utton
710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Attorneys for Appellant





TABLE OF CONTENTS

A rgument

I. Defendant Has Standing to Challenge the Wis­
consin Statute Denying a Change of Venue in 
Misdemeanor Cases ..................................................  2

II. Change of Venue Has Traditionally Been Rec­
ognized as a Means of Guaranteeing the Defen­
dant’s Right to an Impartial Jury Trial and 
May, Under Certain Circumstances, Be Re­
quired by Due Process of L a w ............................... 4

III. The Distinctions Between the Treatment A c­
corded Felony and Misdemeanor Defendants in 
Wisconsin Are Not Adequate to Justify, Under 
the Equal Protection Clause, Prohibiting a Change 
of Venue for Those Charged With a Misdemeanor 7

T able of A uthorities

Cases:

Allen v. United States, 4 F.2d 688 (7th Cir. 1924), cert.
denied sub nom., Hunter v. United States, 267 U.S.
597, Mullen v. United States, 267 U.S. 598 and John­

PAGE

son v. United States, 268 U.S. 689 (1925) ...................  7

Baldwin v. New York, 399 U.S. 66 (1970) ....................... 7

Lias v. United States, 51 F.2d 215 (4th Cir.), aff’d per 
curiam, 284 U.S. 584 (1931) ........................................... 7

Mason v. Pamplin, 232 F. Supp. 539 (W.D. Tex. 1964), 
aff’d, Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966) 3



11

Pruitt v. State, 16 Wis. 2d 169, 114 N.W. 2d 148 (1962) 8

Bideau v. Louisiana, 373 U.S. 723 (1963) ....................... 3

State v. Cooper, 4 Wis. 2d 251, 89 N.W. 2d 816 (1958) 5
Stroud v. United States, 251 U.S. 15 (1919) ...............  6

United States v. Beadon, 49 F.2d 164 (2nd Cir.), cert.
denied, 284 U.S. 625 (1931) ........................................... 6

United States v. Mellor, 71 F. Supp. 53 (D. Neb. 1946), 
aff’d 160 F.2d 757 (8th Cir.), cert, denied, 331 U.S.
848 (1947)..........................................................................  6

Young v. United States, 242 F. 788 (4th Cir.), cert, 
denied, 245 U.S. 656 (1917) ........................................... 7

Constitutional and Statutory Provisions:

L a. Code Crim . P. §§621, 622 ........................................... 6

T ex . Code Crim . P. Art. 31.01........................................... 6

28 U.S.C. §114....................................................................... 6

V t . S tat. Tit. 13, §4613....................................................... 6

Wis. Const. Art. 3, § 2 .........................................................  8

Wis. S tat. §6.03 ................................................................ 8

Wis. S tat. §57.078 ...........................................................  8

Wis. Stat. §270.16 ...........................................................  9

Wis. S tat. §270.17 .................................................................  4

Wis. S tat. §939.60 ...............................................................  8

Wis. S tat. §§954.02, 954.025 (1967), as amended, 
§§968.02, 968.03, 968.04, 968.26

PAGE

9



Ill

Wis. Stat. §954.08 ..............................................................  9

Wis. S tat. §955.18, as amended, §§970.02, 970.03 ...........  9

Wis. Stat. §956.03, as amended, §971.22 ........................... 2

Wis. Stat. §957.03, as amended, Wis. Stat. §972.03 .... 9

Wis. Stat. §957.05 (1967) ..................................................  9

Wis. S tat. §957.14, now §972.01 ................................. 9

Wis. Stat. §959.044, now §973.02 ................................. 8

Wis. Stat. §967.01 ................................................................  2

Wis. S tat. §§970.02, 971.10 ..............................................  9

Wis. S tat. §971.22 amending §956.03 ............................. 2, 6

Wis. S tat. §972.12 ..............................................................  9

Other Authorities:

33 F ord. L. R ev. 498 (1965) ..............................................  6
Lipton, The Classification of Crimes in Wisconsin, 50 

M arq. L. R ev. 346 (1966) ..............................................  8

Note, Community Hostility and The Right to an Im­
partial Jury, 60 Coltjm. L. R ev. 349 (1960) ...............  5

Note, Wisconsin Criminal Procedure, 1966 Wis. L.
R ev. 430 ........................................................................................  5, 8

Standards Relating to Fair Trial and Free Press 
(A.B.A. Project on Minimum Standards for Crim­
inal Justice, 1966) ..........................................................  4, 5

PAGE





I n  t h e

feuprm* (Uiutrt of tltp Hutted States
October T erm, 1970 

No. 26

James E dmund Groppi,

v.

State op W isconsin,

Appellant,

Appellee.

on appeal from the supreme court OF WISCONSIN

REPLY BRIEF

Appellant submits this brief in order to respond to cer­
tain claims made by the State in its brief on appeal. 
First, the State claims that no proper record of commu­
nity prejudice has been made in the instant case, and 
therefore defendant has no standing to challenge the W is­
consin Statute denying a change of venue in all misde­
meanor cases. Second, the State claims that the right to 
change of venue is only one of several available methods 
of ensuring an impartial jury trial, and that it is not un­
usual to condition the right to such protections on the 
seriousness of the offense. It concludes that the denial of 
any opportunity for venue in the instant case did not vio­
late due process of law. Finally, the State claims that 
there are significant differences in the treatment accorded 
felony and misdemeanor defendants in Wisconsin and, 
therefore, that the limitation of the right to change of 
venue to felony cases did not violate equal protection



2

of the law. Appellant submits that these arguments are 
without merit for the reasons set forth briefly below, and 
urges the Court to reverse his conviction on the grounds 
set forth in his brief on appeal.

ARGUMENT

I.

Defendant Has Standing to Challenge the Wisconsin 
Statute Denying a Change of Venue in Misdemeanor 
Cases.

As the State’s brief concedes, there is no question that 
W is. Stat. A n n . §956.03(3), as construed by the state 
courts in the instant case, absolutely prohibited a change 
of venue in all but felony cases (Brief for Appellee, p. 5).1 
As a result, the trial court denied defendant’s motion for a 
change of venue without allowing him any opportunity to 
provide the proof he had proffered as to the “nature and 
extent” of the news coverage his activities had received, 
and “ its effect upon this community and on the right of 
defendant to an impartial jury trial.” (A.23-25; see Brief 
for Appellant, p. 8, and pp. 14-15, n. 6). The State con­

1 Wis. Stat. §971.22 now permits a change of venue in all 
criminal cases. This section is part of the new Wisconsin Criminal 
Procedure Code, enacted in 1969, Chap. 255, Laws of 1969. It was 
effective July 1, 1970, and is applicable prospectively only: 

Section 967.01 Title and Effective Date.
Title XLVII may be cited as the criminal procedure code 

and shall be interpreted as a unit. This code shall govern 
all criminal proceedings and is effective on July 1, 1970. It 
applies in all prosecutions commenced on or after that date. 
Prosecutions commenced prior to July 1, 1970, shall be gov­
erned by the law existing prior thereto.

Chap. 255 represents a broad revision of state statutes dealing 
with criminal procedure; it repeals Wis. Stat. §§954-964 and sub­
stitutes therefor new §§967-976.



3

tends on appeal that since defendant could have presented 
evidence of community prejudice on a motion for continu­
ance, on voir dire proceedings, or on a motion for new 
trial, the absence of proof of community prejudice in the 
record deprives defendant of standing to challenge the 
statute denying him any opportunity for a change of 
venue. But the question at issue is whether defendant 
had a right to prove to the court that only a change of 
venue could adequately protect his right to an impartial 
jury trial. Clearly defendant’s standing to raise this issue 
and to show that remedies such as continuance, voir dire 
and motion for a new trial may, under certain circum­
stances, be inadequate to protect the right to an impar­
tial jury cannot depend on whether he pursued such al­
legedly inadequate remedies. Nor can it depend on any 
showing of the attitudes revealed by actual jurors on 
voir dire, as this Court specifically held in Rideau v. 
Louisiana, 373 U.S. 723, 727 (1963). Since the trial court 
denied defendant any opportunity to show that commu­
nity prejudice was such as to justify a change of venue, 
on the ground that Wisconsin law would not permit a 
change of venue in any event, defendant cannot be pre­
cluded from challenging the statute’s constitutionality be­
cause the record fails to show adequate community preju­
dice. Mason v. Pamplin, 232 F. Supp. 539, 542-43 (W.D. 
Tex. 1964), aff’d, Pamplin v. Mason, 364 F.2d 1, 6-7 (5th 
Cir. 1966).



4

n.
Change of Venue Has Traditionally Been Recognized 

as a Means of Guaranteeing the Defendant’s Right to 
an Impartial Jury Trial and May, Under Certain Cir­
cumstances, Be Required by Due Process of Law.

The State contends that change of venue is only one of 
several possible methods of ensuring an impartial jury 
and, therefore, is not constitutionally required (Brief for 
Appellee, pp. 14-18). But apart from continuance and 
voir dire, whose inadequacies are dealt with in appellant’s 
brief at pp. 22-25,2 * * the State points specifically only to 
change of venire, control of media treatment, oath-giving, 
cautionary instructions, sequestration of jury and protec­
tion of witnesses as “ devices available to guard against 
undesirable intrusions into the fact-finding process” (pp. 
14-15). Even if such devices are available and used to 
their maximum potential, change of venue remains essen­
tial, under certain circumstances, to guarantee jury im­
partiality. Thus, as noted at p. 21 of appellant’s brief, the 
American Bar Association’s Report on Standards Relat­
ing to Fair Trial and Free Press (A.B.A. Project on Mini­
mum Standards for Criminal Justice, 1966) found that 
even with liberalization of the procedural remedies avail­
able to defendants, including voir dire examination and 
continuance, and with radical changes in the law govern­
ing release of news to and by the press, the availability 
of change of venue remained vital. Moreover, there is no 
indication that Wisconsin has initiated any of the reforms

2 See also, with respect to voir dire, Wis. Stat. A nn . §270.17: 
Section 270.17. Newspaper Information Does Not 
Disqualify.

It shall be no cause of challenge to a juror that he may
have obtained information of the matters at issue through 
newspaper or public journals, if he shall have received no 
bias or prejudice thereby . . .



5

recommended by the A.B.A. Report. Certainly none of 
the devices mentioned in appellee’s brief constitute ade­
quate or even significant protections under Wisconsin law 
and practice. Change of venire— a device by which the 
jury panel is summoned from outside the area of intensive 
news coverage—is not available in Wisconsin, and in any 
event is useful only in cases where community sentiment 
is not strong.3 Nor has Wisconsin apparently undertaken 
to change in any way the freedom traditionally accorded 
news media with respect to trial coverage, nor to assert 
any of the kinds of controls over the release of news to 
or by the press recommended by the A.B.A. Report. Oath­
giving and cautionary instructions are obviously even less 
effective devices than the voir dire for getting at jurors’ 
conscious and unconscious prejudices. Sequestration of 
the jury is rarely used in Wisconsin except in life im­
prisonment or capital cases ;4 in any event, its effectiveness 
is limited because it guards only against prejudicial pub­
licity which occurs after the trial has begun, it may not 
screen out strong community feeling, and the inconveni­
ence to the jurors may prejudice them against the de­
fendant.6

The State also contends that it is not unusual to con­
dition devices designed to ensure jury impartiality on the 
seriousness of the offense. But in fact, in Wisconsin, 
as elsewhere generally, the availability of such devices is

3 See A.B.A. Report at 137-38; Note, Community Hostility and 
The Right to an Impartial Jury, 60 Colum. L. Rev. 349, 366-67 
(1960).

Only a very few jurisdictions provide for change of venire and 
these also authorize change of venue under similar circumstances. 
See Note, supra, at 365-67; A.B.A. Report, p. 137, nn. 159, 160.

4 See State v. Cooper, 4 Wis. 2d 251, 89 N.W.2d 816 (1958) ; 
Note, Wisconsin Criminal Procedure, 1966 Wis. L. Rev. 430, 479. 5

5 A.B.A. Report at pp. 140-42.



6

not limited to felony cases with the sole exception of the 
change of venue statute at issue in the instant case.6

The State apparently concedes that virtually all Ameri­
can jurisdictions today provide for a change of venue in 
all serious criminal cases, regardless of whether they are 
classified as felony or misdemeanor, arguing only that 
in the past a number of states have limited the change 
of venue device to felony cases. But as pointed out in the 
Brief for Appellant, at pp. 31-32 and n. 41, only a few 
jurisdictions have ever so limited change of venue, and 
the trend has been toward elimination of any such dis­
tinction.7

6 The only distinction made in Wisconsin is for cases involving 
possible life imprisonment: in such cases additional peremptory 
challenges are available, and sequestration of the jury is manda­
tory rather than discretionary. See p. 9, nn. 14, 16, infra.

7 The reference in Brief for Appellee, p. 13, n. 35, to footnote 51 
of 33 Ford. L. Rev. 498, 507 (1965) as listing eight states which 
by statute limited change of venue to more serious crimes is mis­
leading. Included among the eight are Maryland, where a dis­
tinction is drawn only between capital and non-capital cases, and 
only in terms of whether the right to change of venue is absolute 
or depends on a showing of necessity; Massachusetts, where the 
statute providing for change of venue in capital crimes was held 
in 1911 not to limit the inherent right to change of venue in all 
criminal cases; and Pennsylvania, where the right to change of 
venue in felonies and misdemeanors is distinguished only in terms 
of the kind of proof required. See Brief for Appellant pp. 31-32, 
n. 41, for citations and descriptions of relevant statutes and cases. 
Also included among the eight listed in the Fordham Note are 
Louisiana, Texas, Vermont and Wisconsin, all of which amended 
their laws to remove such a distinction. See, La. Code Crim. P. 
§§621, 622 (1966) ; Tex Code Crim. P. Art. 31.01 (1966); V t. 
Stat. Tit. 13, §4631 (1969) ; Wis. Stat. §971.22 (1969).

Appellee also argues that prior to 1946, change of venue was 
not available in federal practice. However, federal law did provide 
for a change of venue from one division to another within a single 
district. 28 U.S.C. §114; see, e.g., Stroud v. United States, 251 
U.S. 15, 18-19 (1919) ; United States v. Beadon, 49 F.2d 164 (2nd 
Cir.), cert, denied, 284 U.S. 625 (1931) ; United States v. Mellor, 
71 F. Supp. 53, 64 (D. Neb. 1946), aff’d, 160 F.2d 757 (8th Cir.),



7

m.
The Distinctions Between the Treatment Accorded 

Felony and Misdemeanor Defendants in Wisconsin Are 
Not Adequate to Justify, Under the Equal Protection 
Clause, Prohibiting a Change of Venue for Those 
Charged With a Misdemeanor.

The State argues, at pp. 19-21 of its brief on appeal, 
that conviction of a felony in Wisconsin carries more seri­
ous consequences than conviction of a misdemeanor, and 
that felony defendants have therefore been provided addi­
tional procedural safeguards, including the right to change 
of venue.

The only factors mentioned supporting the claim that a 
felony conviction carries more serious consequences are 
length and place of punishment, disfranchisement and so­
cial stigma. But this Court, as well as the Wisconsin Su­
preme Court, has rejected the motion that such traditional 
distinctions are of any particular relevance in determin­
ing what class of criminal defendants should be accorded 
fundamental procedural protections. See Baldwin v. New 
York, 399 U.S. 66 (1970); see generally appellant’s brief 
at pp. 35-36. In any event, on close examination the dis­
tinctions alleged fade. Neither length nor place of punish­
ment necessarily determines the degree of a crime in Wis-

cert. denied, 331 U.S. 848 (1947). Moreover, a number of cases 
decided prior to 1946 indicate that there was discretion to grant 
a change of venue generally if the circumstances warranted it. 
See, e.g., Young v. United States, 242 F. 788, 792 (4th Cir.) cert, 
denied 245 U.S. 656 (1917); Lias v. United States, 51 F.2d 215, 
217 (4th Cir.), ajf’d per curiam, 284 U.S. 584 (1931) ; Allen V. 
United States, 4 F.2d 688, 695-98 (7th Cir. 1924), cert, denied 
sub nom, Hunter v. United States, 267 U.S. 597, Mullen v. United 
States, 267 U.S. 598 and Johnson v. United States, 268 U.S. 689 
(1925).



8

cousin. A  misdemeanant can be sentenced to state prison 
for more than a year ;8 * a felon can be sentenced to a county 
jail for less than a year. It is only if the substantive 
statute fails to provide the place of imprisonment that 
the length of the sentence affects the place and, therefore, 
the degree of the crime. Wis. S tat. §959.044, now §973.02; 
§939.60. Even then length of sentence is not determinative, 
but instead a variety of complicated factors enter into the 
decision as to how the conviction should be treated. See 
generally Lipton, The Classification of Crimes in Wiscon­
sin, 50 M arq. L. R ev. 346 (1966); Note, Wisconsin Criminal 
Procedure, 1966 Wis. L. R ev. 430, 487-89. Also, while 
Wisconsin’s repeater statute does provide for more severe 
enhancement of punishment for felons than for misde­
meanants, it also means, as noted in appellant’s brief at 
p. 37, n. 47, that misdemeanors can bring increased penal­
ties and incarceration in state prison. The fact that con­
viction of a felony carries the collateral consequence of 
disfranchisement is hardly significant in light of W is­
consin’s statutes providing for the automatic restoration 
of such civil rights upon satisfaction of sentence. See Wis. 
Const. Art. 3, §2; Wis. S tat. §§6.03 (1967); 57.078 (1959). 
And the social stigma attached to a conviction is not likely 
to be determined by whether it is officially labelled a mis­
demeanor or felony but rather by the nature of the crime 
and the seriousness with which it is treated by authorities. 
There is then little to justify any conclusion that a felony 
conviction carries with it more serious consequences than 
a misdemeanor conviction.

Similarly, there are virtually no significant differences in 
the procedural safeguards accorded felony and misde­
meanor defendants. The only one mentioned by the State 
is the felony defendant’s right to a preliminary hearing.

8 See, Note, Wisconsin Criminal Procedure, 1966 Wis. L. Rev.
430, 488; Pruitt v. State, 16 Wis. 2d 169, 114 N.W. 2d 148 (1962).



9

Wis. S tat. §955.18 (1967), as amended, Wis. S tat. §970.02 
(1) (c), (4), (5), §970.03 (1969).9 This is hardly too signifi­
cant, especially in light of the fact that there are procedures 
guaranteeing a judicial finding of probable cause before a 
warrant or summons can be issued for a misdemeanant’s 
arrest,10 11 and guaranteeing the misdemeanant’s right to a 
prompt trial.11 With respect to virtually all other pro­
cedural protections including the right to jury trial,12 no 
distinction is made between felony and misdemeanor. And, 
most significant, with respect to all protective devices 
aimed at ensuring a fair and impartial jury, no such dis­
tinction is drawn. Thus the law is identical for felonies 
and misdemeanors with respect to the selection of the 
jury, including the summoning of jurors, impaneling and 
qualifications, challenges for cause13 and peremptory chal­
lenges,14 and with respect to instructions,15 sequestration,16 
and continuance.

In conclusion, the distinctions mentioned by the State 
between the treatment accorded felony and misdemeanor 
defendants in Wisconsin are of minor importance. Fur-

9 Prior to 1961 there was no provision limiting the right to pre­
liminary hearing to felony cases. See Wis. Stat. §954.08 (1949).

10 Wis. Stat. §954.02, 954.025 (1967), as amended, §§968.02, 
968.03, 968.04, 968.26 (1969).

11 Wis. Stat. §§970.02 (3), 971.10 (1969).
12 See Brief for Appellant pp. 15-16, n. 7; Brief for Appellee, 

p. 5, n. 6.
13 See generally Wis. Stat. §957.14 (1967), now §972.01 (1969) ; 

Wis. Stat. §270.16 (1967).
14 Wis Stat. §957.03 (1967) (4 peremptory challenges allowed 

in all cases except those involving possible life imprisonment where 
12 allowed), as amended, Wis. Stat. §972.03 (1969) (same except 
that in life cases number reduced from 12 to six).

15 See note 13 supra.
16 Wis. Stat. §972.12 (1969) ; See also former §957.05 (1967).



1 0

ther, when Wisconsin procedures are looked at as whole, 
it is clear that there is no significant distinction in the 
treatment accorded misdemeanor and felony defendants, 
that there is no coherent or consistent principle of classi­
fication of crimes, and that a crime’s classification is totally 
unrelated to the reasons that change of venue may be re­
quired to vindicate a defendant’s constitutional right to an 
impartial jury. (See generally Brief for Appellant, pp. 
34-37.)

Bespectfully submitted,

Jack Greenberg
E lizabeth B. D ubois 

10 Columbus Circle 
New York, New York 10019

M ichael M eltsner
Columbia Law School 
435 West 116th Street 
New York, New York 10027

A nthony  G. A msterdam 
Stanford Law School 
Stanford, California 94305

H aywood B urns
112 West 120th Street 
New York, New York 10027

T homas M. J acobson
110 East Wisconsin Avenue 
Milwaukee, Wisconsin 53202

B obert E. S utton
710 North Plankinton Avenue 
Milwaukee, Wisconsin 53203

Attorneys for Appellant







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