# United States of America Ex Rel. Louis Roberts v. Hon. J. Edwin Lavallee, Warden of Auburn State Prison, Auburn, New York

> Court of Appeals for the Second Circuit · March 10, 1967 · 373 F.2d 49

URL: https://www.frixlaw.com/law-library/cases/9452528

## Case

- **Full name:** UNITED STATES of America Ex Rel. Louis ROBERTS, Petitioner-Appellant, v. Hon. J. Edwin LaVALLEE, Warden of Auburn State Prison, Auburn, New York, Respondent-Appellee
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** March 10, 1967
- **Citations:** 373 F.2d 49
- **Precedential status:** Published
- **Opinion:** Dissent by Medina
- **Judges:** Lumbard, Medina, Kaufman
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Roberts v. LaVallee, 389 U.S. 40 (1967).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9452528

## Opinion text

MEDINA, Circuit Judge
(dissenting):
I dissent because I think relator’s case was ripe for decision at the time of oral argument on November 10, 1966, that it is ripe for decision now and that he should be given relief now. To cast doubt upon relator’s right to relief, bar immediate resort to the Supreme Court by application for certiorari, and then in effect remand the case to the state courts for the possible application for an uncertain state remedy seems to me to work great prejudice to appellant and to be a procedure not justified by the niceties of federalism.
The real difference between my brothers of the majority and me stems from the fact that I believe Roberts is entitled to the relief he prays and my brothers are of a contrary view.
At the root of the case is N.Y.Code of Criminal Procedure, Section 206, a statute of ancient vintage, that reads:
§ 206. Defendant entitled to copies of depositions and, statement
If the defendant be held to answer the charge, the magistrate or his clerk having the custody of the depositions taken on the information or examination, and of the statement of the defendant, must, on payment of his fees at the rate of five cents for every hundred words, and within two days after demand, furnish to the defendant, or his counsel, a copy of the depositions and statement, or permit either of them to take a copy.
From the time of the oral argument I have been of the opinion that this state statute plainly violates the Fourteenth Amendment to the United States Constitution in that it deprives defendants in criminal cases of the equal protection of the laws and of their liberty without due process of law. That this invidious distinction between the rich and the poor is repugnant to the federal constitution is, in my judgment, established by a long line of modern Supreme Court rulings. Griffin v. People of State of Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956); Lane v. Brown, 372 U.S. 477 , 83 S.Ct. 768 , 9 L.Ed.2d 892 (1963); Draper v. State of Washington, 372 U.S. 487 , 83 S.Ct. 774 , 9 L.Ed.2d 899 (1963); Johnson v. United States, 352 U.S. 565 , 77 S.Ct. 550 , 1 L.Ed.2d 593 (1957), reversing 238 F.2d 565 (2 Cir. 1956); Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).
In view of the memorandum of the New York Court of Appeals in People v. Montgomery, filed on December 30, 1966, and quoted in full in the margin, 1 my brothers of the majority do not ap *53 pear to disagree with my views on the federal constitutional issue. But there is more to the case than this.
What are the questions my brothers say “are by no means free from doubt” ? What are the uncertainties to b'; resolved perhaps by the state courts after this dismissal here of Roberts’ claims of deprivation of federal constitutional rights? I do not agree that these uncertainties exist.
The demand by Roberts for a copy of the minutes of the preliminary hearing is clear and unequivocal. So also is the fact that the minutes were not forthcoming. As Section 206 had been in effect for many years, it is not strange that the judge in the state court did no more than ask Roberts if he could pay for the minutes. As he was an indigent, represented by assigned counsel, he replied that he was without funds to pay the stipulated fee required by the terms of the statute. There was no further discussion nor was there any occasion for further discussion. I am at a loss to understand the basis for the claim of the prosecution that Roberts abandoned his request for the minutes.
Nor can I agree that the demand by Roberts was not timely. It seems to be thought that the demand should have been made or renewed at the trial. My view, however, is that Roberts was entitled to the minutes of the preliminary hearing not merely for the purpose of cross-examining witnesses produced by the prosecution at the trial but also for the general purpose of preparing for trial. Surely a defendant able to pay for these minutes would procure them at the earliest possible moment to assist generally in his preparation for the trial. The fact that Roberts and his counsel heard what the witnesses said seems to me to be immaterial. He had a statutory right to the minutes and the limitation of this right to those able to pay is invalid and void. 2 Nor do I think the fact that Roberts had access to the grand jury minutes but did not use them at the trial for purposes of cross-examination has any relevancy to the issue before us now. Neither the minutes of the preliminary hearing nor the grand jury minutes are before us. For all we know a comparison of the two would show serious contradictions in the testimony of the prosecution witnesses.
*54 As I stated at the beginning of this dissent, the case at the time of oral argument was ripe for decision. It cannot be doubted that state remedies on the very point at issue were available to Roberts and the proof is plain that he had fully exhausted them. If, as I think, Roberts is entitled to relief, why should we not give him the relief to which he is entitled?
To muddy the waters with intimations that his right to relief is uncertain and doubtful and then dismiss the case so that Roberts can start all over again in the state courts is surely a disservice to Roberts whose federal constitutional rights have been infringed. The delay cannot fail to be prejudicial to him. I submit the delay is wholly unnecessary.
The three cases cited by my brothers show clearly enough that when a state belatedly grants a procedural device through which a defendant may pursue his conceded federal right, the federal courts will dismiss the case to enable the defendant to exhaust his “presently available” state remedies. By so dismissing the federal courts protect their calendars and reduce their action in state criminal matters. But that is not our case. No new state procedural remedj has been made available to relator. And no short-circuiting of state procedures is involved. Rather, a federal remedy has been supplemented by a substantive state remedy. But the law is clear that the exhaustion of state substantive remedies is not a precondition to the granting of federal relief. Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961); Turner v. City of Memphis, 369 U.S. 350 , 82 S.Ct. 805 , 7 L.Ed.2d 762 (1962) ; Mc-Neese v. Board of Education, 373 U.S. 668 , 83 S.Ct. 1433 , 10 L.Ed.2d 622 (1963). Cf. Dombrowski v. Pfister, 380 U.S. 479 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965).
In Stapleton v. Mitchell, 60 F.Supp. 51 (D.Kan.1945), the then Judge, now Chief Judge Murrah, wrote:
We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.
. Memorandum :
Judgment reversed and case remitted to the Supreme Court, Queens County, for new trial. The state is to make available to defendant a transcript of the preliminary hearing.
When the state constitutionally or statutorily affords a defendant a right, the *53 exercise thereof cannot be conditioned upon the defendant’s ability to pay (People v. Hughes, 15 N.Y.2d 172 , 256 N.Y.S. 2d 803 , 204 N.E.2d 849 ; People v. Pride, 3 N.Y.2d 545 , 170 N.Y.S.2d 321 , 147 N.E. 2d 719 ; Long v. District Court of Iowa, 87 S.Ct. 362 ; Lane v. Brown, 372 U.S. 477 , 83 S.Ct. 768 , 9 L.Ed.2d 892 ; Douglas v. State of California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 ; Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 ; Griffin v. People of State of Illinois, 351 U.S. 12 , 76 S.Ct. 585 ). Section 206 of the Code of Criminal Procedure provides that where a preliminary examination was held and testimony recorded, the magistrate or his clerk must, “upon payment of his fees,” within two days after demand, furnish the defendant or his attorney a copy of the statement taken at the hearing. There is no doubt that § 206 affords one who is capable of paying for it an absolute right to a transcript of the preliminary hearing. Thus, the state cannot, consonant with the equal protection clause of thel. State and Federal Constitution, deny a defendant, prior to trial, access to a transcript of a preliminary hearing because of his inability to pay (cf. People v. Jaglom, 17 N.Y.2d 162, 165 , 269 N.Y.S.2d 405 , 216 N.E.2d 576 ). We hold, therefore, that when a defendant requests a transcript and when that request is accompanied by an affidavit of indigency, the state must honor that request. We add one caveat. The request for a transcript should be made far enough in advance of trial to give the state a reasonable amount of time to transcribe the minutes and to avoid the necessity of suspending the trial pending the production of the transcript.
Judgment reversed and a new trial ordered. Memorandum opinion. All concur.
. It is significant that the New York Court of Appeals in Montgomery indicated that they would require defendants to demand a transcript before the trial began. Perhaps if relator had made his demand at any later point it then would not have been timely.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9452528. Public record. Not legal advice.