Petition for Writ of Certiorari — In re Capshaw

Nidan i ID AE: Be EON

| Supreme Court of the United States

OCTOBER TERM, 1944

IN THE MATTER

| 4 of

4 HULON CAPSHAW, an Attorney,

3 Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF THE STATE OF NEW YORK, AND BRIEF

IN SUPPORT THEREOF

THOMAS I. SHERIDAN,

11 E. 44th Street,

New York, N. Y.,

DEAN ALFANGE,

9 E. 40th Street,

New York, N. Y.,

Attorneys for Petitioner.

INDEX

Table of Contents

PAGE

Petition for Writ of Certiorari ................++ 1

Opinions Bowe. cies ev cae ee vsee sees hes eas 1

Summary Mtatomienst: 5.65. c i cs isew ee iee 2

GOERS. eS ako os ood does cake leaenueeres 2

The Charges for Disbarment ................. 5

Additional Charges of Which No Notice or Op-

portunity to Answer Was Given ............ 6

Brief Resume of the Case ..........0..eeeeeee 10

Questioned: PYOWONteG 8 ogee ce is eck ese cee eases 14

Reasons for Granting the Writ ............... 16

Potties 6 Isxie0 oo cs cvesyan vasa lecisukacsne 17

No Cross-examination Allowed ........ ice Gh abi 17

No Notice and No Hearing of Additional Charges

on Which the Decision Was Based. .......... 23

Petitioner’s Evidence Not Considered ......... 32

Detached Exhibits:

‘¢‘A?*__Brief for appellant (petitioner) in the Court

Of ANDORle 6. cs case ens eas acre rene ‘ 35

‘‘B’’—_Appellant’s (petitioner’s) reply brief in the

C§oart of ADQOMIB «66555 ose sis ease aes 35

References:

1—Per curiam opinion on Order of Disbarment

in which presiding Justice Martin and

Justice Townley concurred (R. 691) .... 35

2—Concurring opinien on Order of Disbarment

by Justice Untermyer (R, 692) ......... 35

it

3—Opinion dissenting from Order of Disbar-

ment by Justice Dore (R. 693)

4—Majority opinion in the removal case against

petitioner by presiding Justice Martin

(258 App. Div. 470)

5—Concurring opinion in the removal case by

Justice Untermyer (258 App. Div. 486) ..

Table of Cases Cited

Barbier v. Connolly, 113 U. 8. 27

Bradley v. Fisher, 13 Wall. 335

Cooke v. United States, 267 U.S. 517

Ez parte Bradley, 7 Wall. 364

Ea parte Robinson, 19 Wall. 505

Galpin v. Page, 18 Wall. 350

Garfield v. United States Ex Rel. Spalding, 32 App.

Goldsmith v. Board of Taz Appeals, 270 U.S. 117...

Holden v. Hardy, 169 U.S. 366

Hovey v. Elliott, 167 U. S. 409

Matter of Capshaw (Disbarment Case), 266

292 N. Y. 687 ..: 1,3, 4,5, 7,8, 9, 10, 12

Matter of Capshaw (Removal Case), 258 A.

N. Y. L. J., Apr. 17, 1940, p. 1739 . .2, 5, 6

Matter of Droege, 197 N. Y. 44

Matter of Eldridge, 82 N. Y. 161

ili

Matter of H——, an Attorney, 87 N. Y.521........ 29

Matter of Kaufman, 245 N. Y. 423 ............-545- 3, 24

Matter of Long, 287 N. Y. 449 ............ccceeees 20, 24

Matter of Lynch, 227 A. D. 477, 1st Dept. ........... 24

Matter of Tanz, 233 A. D. 300, Ist Dept. ............ 24

Matter of Weitling, 266 N. Y. 184 ..............45. 20

People Ex Rel. Karlin v. Culkin, 248 N. Y. 465 ...... 25

People v. Ellis, et al., 243 A. D. 522 ....... aats aint 19

People v. Hines, 258 App. Div. 466 ...... 2, 3, 5, 6, 7, 8, 9, 10,

11, 12, 15, 17, 18, 25, 27, 28, 29, 31

Powell v. Alabama, 287 U. 8. 45 ............ 0.0 e eee 22

Saunders v. Shaw, 244 U.S. 317 ...............45. 25

Smith v. Tewas, 233 U. B. GOD oc cc nk ce cescesenssees 21

Southern Rwy. v. Clift, 260 U. S. 316 .............. 24

Truaz v. Corrigan, 257 U.S. 312 ......... eee eee 21

United States Ex Rel. Wedderburn v. Bliss, 12 App.

eer eeee eee eee eee eee eer eee eee eee eee

&

IN THE

Supreme Court of the United States,

OCTOBER TERM, 1944

In THE MaTTER

of

Hutton (apsuaw, an Attorney, ;

Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

To

Tue HonoraBLe Cuier Justice AND THE AssociaTE Jus-

TICES OF THE SuPREME CouRT oF THE Untrep Srartss:

Your petitioner, Hulon Capshaw, prays that pursuant

to section 237 (b) of the Judicial Code, amended, a Writ

of Certiorari issue to the Court of Appeals of the State

of New York to review its final decision and order made in

the above entitled proceeding on May 25, 1944, affirming

the disbarment of petitioner by the Appellate Division,

First Department.

Opinions Below

The opinions of the Appellate Division in the disbar-

ment case are reported in 266 App. Div. 345-346; (R. 691-3).

The Court of Appeals’ affirmance was without opinion (292

N. Y. 687). A prior opinion by the Appellate Division in

—

2

a case for petitioner’s removal as a magistrate, from which

the facts for the disbarment decision were adopted by the

same Justices, is reported in 258 App. Div. 470. The Court

of Appeals denied a review of the latter decision for lack

of jurisdiction, N. Y. Law Journal, April 17, 1940, p. 1739. .

Summary Statement

Petitioner has been disbarred without due process of

law and in denial of his right to an equal protection of the’

laws, on charges based upon perjured testimony (given in

a case wherein he was not a party) of which he had no

notice or opportunity to meet.

’

Jurisdiction

Due process of law under the Fourteenth Amendment

of the United States Constitution has been denied peti-

tioner in a judicial determination depriving him of the

right to earn his living only upon the testimony given by

two self-confessed criminals in a case wherein petitioner

was not a party (People v. Hines et al., 258 App. Div. 466*)

and wherein he was unable and has had no opportunity at |

any time to cross-examine them. Their testimony is not

a part of the record of the disbarment hearings held by a

referee appointed by the Appellate Division, but never-

theless was considered by the Appellate Division without

notice to petitioner, and was in fact the basis of its decision

disbarring him. >

The right of a person to work and earn a living in any

occupation or profession can only be taken from him accord-

ing to due process of law, irrespective of what the occupa-

tion or profession may be. The fact that the profession

happens to be that of an attorney does not deprive him of

‘*the common rights and ordinary privileges of the citi-

* Hereinafter referred to as the Hines case and is fully dis-

cussed at pages 10 et seq.

zen’’. (Matter of Eldridge, 82 N. Y. 161, 168). An at-

torney in New York State can only be disbarred as the

result of a court proceeding conducted in accordance with

common-law rules of evidence. (Matter of Kaufman, 245

N. Y. 423.) In such a case he is entitled to notice of the

‘*specific charges and opportunity to make specific answers

to them, an opportunity to cross-examine the witnesses in

support of them, and un opportunity for argument upon

the law and facts’’. (Garfield v. U.S. ex rel, Spalding 32

App. D. C. 153, 158; cited with approval in Goldsmith v.

Board of Tax Appeals, 270 U. 8S. 117, 123.)

The testimony of these two witnesses in the Hines case

was expressly excluded from each record in the two cases

subsequently brought against petitioner. The first case

was for petitioner’s removal as a City Magistrate. The

referee appointed by the Appellate Division in that case

expressly excluded their testimony in presenting the

charges to that court. The second case, for his disbarment,

was before the same Justices whose referee held the only

hearings therein and expressly excluded their testimony

S eae that record (R. 73-74).

However, the Appellate Division in rendering its deci-

sion in the removal case disregarded the report of the

referee therein and expressly relied on the testimony of

these two witnesses in the Himes case, as is shown by quota-

tions and summations of their testimony and references to

newspaper stories of the political-criminal Hines case, in

its decision, as will hereinafter (at pages 6-9) be pointed

out. The removal decision was rendered by, the same

Justices, with one exception, who were considering the

Himes record on appeal and rendered their decision therein

and in the removal case on the same day.

The Appellate Division’s decision in the disbarment case

adopts the facts ‘‘stated in detail’’ in the removal opinion

based on ‘‘the same evidence’’ and fails to consider peti-

tioner’s evidence in the disbarment proceeding (R. 692).

Thus, without notice, without opportunity at any time to

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4

\

cross-examine these two witnesses or to answer the addi-

tional charges found by the Appellate Division solely from

their testimony and without a hearing thereon, petitioner

has been disbarred without evidence to support any of the

charges against him.

The decisions against petitioner violate the Fourteenth

Amendment of the United States Constitution in invidiously

denying him the equal protection of the New York rules

of law requiring notice of the specific charges for disbar-

ment, a fair trial and an opportunity to cross-examine the -

witnesses against him, heretofore enforced in favor of other

attorneys in like circumstances, involved in the same kind

of court proceedings to determine like rights, but leave

unchanged the rules as to such future litigants.

Perjured testimony of the two witnesses, known to the

State to be such, which had been excluded from evidence,

was used after the hearings had closed without notice to

petitioner as the basis of the Appellate Division’s conclu-

sions against him. There was no other testimony or legal

evidence against him. The right to the assistance of counsel

as to this perjured testimony and to the additional charges

drawn therefrom, criminal if true, was invidiously denied

him.

These Federal Constitutional questions were duly raised

at petitioner’s first opportunity, to wit: on the appeal to

the Court of Appeals by argument and in the briefs which

are presented herewith as detached exhibits: A—Brief,

pp. 14-16, 73-79; B—Reply Brief, pp. 2-4. The Court of

Appeals must necessarily have decided these Federal ques-

tions in rendering its decision and entering its order of

affirmance without opinion. No remedy through further

State court proceedings is available. Jurisdiction of this

Court is invoked upon the grounds that Federal questions

of substance have been decided contrary to applicable de-

cisions of this Court.

The Charges for Disbarment

The onty charges for disbarment of which petitioner was

_ given notice were, in substance, that while he was acting

as a New York City Magistrate he erroneously decided two

cases which came before him (December, 1932; May, 1933)

and in doing so acted in violation of his duties and his

decisions were actuated by unworthy and illegal motives

and for considerations outside of the evidence presented

before him; that while testifying with relation to his de-

cisions in the two cases at the Hines-Schultz conspiracy

trial (February 15-17, 1939) he made contradictory, evasive

and unfounded statements and attempted to obstruct the

administration of justice by deceiving and misleading the

jury as to the evidence presented and the law which should

have been applied in the two decisions and his real reasons

for the same; and that his acts of misconduct in his judicial

capacity for which he had been removed from office as a

Magistrate showed a lack of the necessary character and

fitness to entitle him to practice his profession and consti-

tuted a proper basis for a disciplinary proceeding (R. 11-

14).

No witness was called and no testimony against him was

received to prove any of these charges. They are untrue, .

and are unsupported by any legal evidence. None of them

would have been found, as the conclusions of the Appellate

Division show, but for its consideration of the testimony

of the two witnesses and other charges, far graver, outside

the record (R, 19-20, 23-26; 258 A. D. 470).

6

ADDITIONAL CHARGES OF WHICH NO NOTICE OR

OPPORTUNITY TO ANSWER WAS GIVEN

When considering the case, which had been submitted

to a referee, the Appellate Division, without any notice or

opportunity to object, also considered the testimony (which

is dehors the record) of two witnesses from the record of an-

other case (the political-criminal Hines case). Neither of

these witnesses, nor any other witness, had been called to

testify in the proceeding against the jctitioner. No oppor- °

tunity had been allowed petitioner at any time to cross-ex-

amine them. Only the testimony of one of them, Weinberg,

had been offered in evidence in the disbarment proceeding

and had been expressly excluded by the referee. The peti-

tioner was not a party to the Hines case (only having been a

witness) was not represented by counsel therein, and had

none of the rights of a party.

The conclusions reached by the Appellate Division

against petitioner are so permeated and dominated by

references to the testimony of these two witnesses, by news-

paper stories, and far graver charges, all dehors the record,

that it is manifest they controlled its conclusions upon the

charges actually preferred.

The additional charges, libelous and continuously dam-

aging to petitioner’s. reputation and earning power, are in

substance that:

(1) Petitioner ‘‘aided’’ and was ‘‘implicated’’ as one of

the ‘‘so-called benefactors’’ of the Hines-‘‘ Dutch’’ Schultz

policy conspirators and racketeers (opinion, 258 App. Div.,

470, 480) ;

(2) The political leader Hines could ‘‘dominate’’ and

‘‘eontrol’’ petitioner’s decisions as a Magistrate and ‘‘have

cases disposed of favorably’’ in his court (Id. p. 471):

(3) ‘‘The power of Hines was invoked’’ and ‘‘again

called into action’’ in petitioner’s decisions in the two pol-

?

icy cases (Id. p. 480), and ‘‘the circumstances disclosed’’

under which the two cases had come before him (Id. p. 479) ;

(4) When the petitioner took the witness stand in the

Hines case ‘‘he did so with full knowledge* of the fact that

several of the principals * * * had made complete con-

fessions and had divulged the minute details of the num-

bers racket as operated by ‘Dutch’ Schultz’’ (Id. p. 480) ;

(5) Petitioner attempted to ‘‘bring about the acquittal

of Hines’’ (Id. p. 479) and to ‘‘establish the innocence of

Hines’’ (Id. p. 484).

No notice had been given of these additional charges,

which in effect made petitioner a party to the Hines-Schultz

conspiracy ; nor had any opportunity been permitted him to

answer them by pleading and proof or to cross-examine the

witnesses on whose testimony the Appellate Division solely

relied for finding them true. That Court frankly stated that

its conclusions were ‘‘after careful examination of the tes-

timony in the Himes’’ case (Id. p. 485).

These additional charges are adopted as grounds for

the disbarment by the Appellate Division’s statement ‘‘the

facts involved are stated in detail in the (removal) opinion

of this court in Matter of Capshaw (258 App. Div. 470)”’

and the disbarment is on ‘‘the same evidence which had

been submitted’’ for petitioner’s removal as a Magistrate

(R. 692). These quoted statements are the only pronounce-

ments of the court as to the grounds for the disbarment.

Ordinarily no formal findings are made in a New York dis-

barment proceeding, but the opinion must be looked into for

the actual conclusions upon which the order is based. In

this case the conclusions on which the disbarment order is

based are not elsewhere to be found except in the removal

opinion (258 A. D. 470) ; and since the court says in effece go

there for them, it becomes necessary to look there in order

* Italics wherever used herein are ours.

8

to ascertain on what the charges for disbarment were sus-

tained.

The removal decision (258 A. D. 470) had not been re-

viewed. The Court of Appeals had denied petitioner’s

application for a review because of its lack of jurisdiction,

citing Matter of Droege (197 N. Y. 44). In the latter case

it had held that the removal of a Magistrate is not a court

proceeding but analogous to a removal by an executive

cfficer. The Court said (p. 50):

‘‘How is this case any different because the gov-

ernmental agency through which certain removals .

from office may be effected, happens to be the Ap-

pellate Division of the Supreme Court instead of the

Governor or the Lieutenant-Governor?”’

The Appellate Division in the disbarment proceeding

against petitioner does not expressly hold that the removal

opinion (258 A. D. 470) is a court decision, sui generis, or

that it is res judicata or upon any theory has any probative

force or evidentiary value in the disbarment proceeding

which could be applicable to future litigants, but simply

adopts the facts ‘‘stated in detail’’ therein (R. 692).

The decisions against petitioner at the same time in-

vidiously violate the well-settled New York rule that no

other proceeding may be res judicata or have any force

or effect in a disbarment proceeding, but that a lawyer can

be disbarred only through a court action begun ab initio

with notice of the specific charges and a fair trial conducted

in accordance with the common-law rules of evidence.

That this well-settled rule was to govern in this case was

the understanding of the parties on either side is shown by

the conduct of the hearings and the rulings of the referee.

Petitioner’s attorney objected to the introduction in evi-

dence of testimony in the Hines case, saying:

‘‘No opportunity was ever given for confronta-

tion or cross-examination. * * * That evidence

would clearly be inadmissible’’ (R. 73-74).

—

9

To which the prosecution attorney replied:

‘‘T am not pressing it, Judge, in view of the ob-

jection’’ (R. 74).

The objection was sustained. Theretofore the latter

attorney had said to the Referee:

‘‘That testimony is not in this case. The Hines

case is not in this case, only the respondent’s own

testimony’’ (R. 29).

Since the referee expressly excluded the Himes case tes-

timony and petitioner was thereby led to understand that

it would not be considered under his ‘‘answer denying all

the charges’’ (referee’s report R. 687) neither the Referee

nor the Appellate Division could without notice thereafter

consider it without violating petitioner’s right to a fair

trial.

Without any notice to the petitioner, however, the

Appellate Division, when it came to consider the case on

the referee’s report, made no findings of fact other than to

state in its opinion that the facts ‘‘are stated in detail in the

opinion of this court in Matter of Capshaw (258 App. Div.

470)’’ and that he is disbarred on ‘‘the same evidence which

had been submitted’’ for his removal as a Magistrate (R.

692), thereby incorporating by reference its findings of the

additional charges in the removal action (258 A. D. 470)

based on the testimony of the witnesses in the Himes case.

Petitioner had had no notice in the removad action of the

additional charges nor opportunity to cross-examine the

witnesses in the Himes case. The referee in the removal

action had also expressly excluded in presenting the charges

to the Appellate Division all the testimony in the Himes

case except that given by the petitioner in which he had

consistently denied all the charges against him.

10

A Brief Resumé of the Case

On August 2, 1938, without warning the name of peti-

tioner, a New York City Magistrate, appeared in front-

page headlines all over the country as having been named

by the District Attorney in a bill of particulars in the Himes-

Schultz conspiracy case. He, with a deceased Magistrate

and an ex-District Attorney, was charged with having been

‘‘bribed, intimidated or influenced’’ to protect the political-

criminal Hines-Schultz mob in the policy racket. He knew ~

that he was innocent, but could obtain no information as to

the charges, since he was not made a party, except what he

read in the newspapers (R. 586, 36, 39).

On the same day the Chief Magistrate gave a letter to

the press addressed to petitioner ‘‘relieving’’ him of his

court duties. The letter failed to state that only the Appel-

late Division could ‘‘remove’’ a Magistrate and that no hear-

ing or investigation as to the charges had been made (R.

316).

Petitioner had to await the Hines trial to learn from

the sensational testimony of two confessed felons that he

was accused of having been influenced by Hines in two Mag-

istrate Court cases, the titles of which he then learned (R.

36, 39, 547).

These witnesses were J. Richard (Dixie) Davis, a dis-

barred lawyer, confessed felon and many-time perjurer,

and his bosom friend and erstwhile client, George Wein-

berg, also a confessed felon, perjurer and carrier of a gun

and burglar’s tools. Since the early part of 1938 they had

been held in jail unable to raise bails of $200,000 (later

reduced to $75,000) and $150,000 respectively. In exchange

for a promise from the District Attorney’s assistants to

recommend leniency for them on their sentences, they finally

agreed to testify against ‘thigher-ups’’ in the conspiracy

case. They had been told they could obtain no such promise

if they pleaded guilty only. Nothing was said about prose-

cuting them for their other crimes which they had related

pagan

il

to the District Attorney’s assistants (Hines Appeal Record,

258 A. D. 470, pp. 1182-84, 995, 1717, 1738-39, 968-71, 974-5,

1689-90, 1099, 1005-6, 1747, 1750, 990-3, 1001).

Davis and Weinberg framed a story and testified only

in the Hines case that they had petitioner ‘‘fixed’’ in the

two Magistrate Court cases. Their testimony as to one of

these cases was only as to alleged conversations with Hines

about petitioner, their testimony as to the other case was a

tale as to how they had the case ‘‘steered’’ to petitioner,

which the minutes of the Magistrate’s Court in showing

what actually took place before the case reached petitioner

prove was perjured. This fact was known to the State

(Klein case minutes, Nov. 24, 25, 30, 1932; Removal Record,

258 A. D. 470).

When petitioner was first named, he consulted a repu-

table New York law firm as to how to defend his good name

from the vicious assaults being made against him. They

advised him not to answer them in the newspapers but that

the only ethical or legal way to do so was to testify in the

Hines trial. After a careful research they advised him that

his two decisions were in accord with the ruling law in the

Magistrates’ Courts, that he should defend them vigorously

as a witness and that he should ignore the false charges

contained in sensational newspaper stories credited to ‘‘of-

ficial sources’’ that the ‘‘cases were perfect’’ and that he

had to dismiss them because ‘‘he was a protege of Hines’’.

Petitioner was subpoenaed but there was a mistrial and he

was not called to testify until the second Hines trial in

February, 1939 (R. 36-37, 682-3).

The District Attorney in his summation to the Hines

jury virtually admitted that his evidence as to the petitioner

had fallen far short of his original sensationally publicized

charge. He said:

‘¢ * * * There is no evidence in my possession, or

anybody else’s so far as I know, that any of those

men (Capshaw, Boland and Dodge) knew they were

doing anything more than a favor for a politician to

12

whom they were beholden * * * But that does not

mean and I do not contend that Capshaw knew he was

doing this for the ‘Dutch’ Schultz mob * * * All they

knew is that the most powerful man they knew to

whom they were beholden said, ‘Do this for me’ and

they said, ‘O. K. boss’. * * * (Hines Appeal Record,

3621, 258 App. Div. 466).

The motive for Davis framing petitioner, one of fifty

New York City magistrates, was probably revealed by the

District Attorney saying to the Hines jury:

‘‘Davis did not like Capshaw, and so said.’’ (Id. 3631.)

The District Attorney, having convicted Hines and ap-

parently stili incensed at the temerity of the petitioner in

having testified in defense of his decisions, immediately an-

nounced that he was sending copies of the petitioner’s testi-

mony to the Chief Magistrate and to the Bar Association

for their appropriate actions. The newspapers took up a

hue and cry for petitioner’s ouster.

The belated ‘‘beholden’’ explanation of the District

Attorney was not sustained by the referee who framed

and presented the charges to the Appellate Division for

petitioner’s removal from office. In his report to the Ap-

pellate Division he said:

** At the time of his appointment Magistrate Cap-

shaw was unusually well qualified by training and

experience for the position to which he was ap-

pointed. He was widely and favorably known to the

members of his profession, of his church and of the

many social organizations of which he was a member.

His reputation prior to the Hines trial among a wide

circle of acquaintances was excellent.’’ (Referee’s

report 4, Removal Record, 258 A. D. 470).

*

. * & *

**Tn 1929 a vacancy in the City Magistrates’ Court

<n tes ae dec of 2 Clee Magistrate living

in the 13th Assembly District. Believing that under ~

these circumstances the recommendation of the

Leader of the District would be persuasive with the

aaa

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ip

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13

Mayor, Mr. Capshaw approached Andrew B. Keat-

ing, the Leader of the District, and asked him to ree-

ommend his appointment to the Mayor. Keating told

him that he understood there would not be a political

appointment, that he couldn’t make any recommenda-

tion and suggested that he get independent support

from people who were not members of the Demo-

cratic Organization. Mr. Capshaw procured excellent

letters of recommendation from several very eminent

gentlemen which were written or submitted to the

Mayor.’’ (Id. 4).

The Referee also reported: ‘In addition to con-

sideration of the evidence adduced at these hearings

I have made inquiries of the District Attorney of this

County, the Commissioner of Investigation of this

City, the Chief City Magistrate and the Association

of the Bar of the City of New York, to ascertain what,

if any complaints have been made concerning prac-

tices or official acts of Magistrate Hulon Capshaw,

and have found none worthy of consideration by this

Court.’’ (Id. 2).

The foregoing parts of the report were not reported by

the press.

Although petitioner duly petitioned the Appellate Divi-

sion that the same Justices should not consider the removal

matter simultaneously with the Hines Record on Appeal,

the same Justices (with one exception), nevertheless, did

consider the two matters at the same time and handed down

their decision in each matter on the same day, January 26,

1940. (Petition verified, Dec. 7, 1939, Removal Record.)

The Bar Association thereupon initiated the disbarment

proceeding. The acting chairman of its grievance commit-

tee at the ‘‘hearing’’ announced that the committee would

not consider the charges on their merits since they were the

same as those passed upon by the Appellate Division in its

removal decision, but would submit them without prejudice

to the same court (R. 9).

The Appellate Division referred the matter to one of

ar Referees, who virtually made no findings other

that the charges were sustained (R. 686) and the

14

Appellate Division when considering the matter on the

Referee’s Report only referred to the removal opinion

(258 A. D. 470) for the facts therein ‘‘stated in detail’’

(R. 692).

The crucial conclusions there stated are unsupported

by any evidence. They are so dominated and permeated

with dehors the record testimony, and additional charges

of which petitioner had no notice or opportunity to defend

and no opportunity to cross-examine the witnesses upon

whose testimony they are solely based, that petitioner has _

been denied a fair trial in violation of due process of law.

In thus violating well-settled New York rules of law ap-

plicable to such cases, without making any change with

respect thereto as to future litigants, petitioner has been

invidiously denied the equal protection of the New York

laws.

Although these Federal questions were duly raised on

the appeal by argument and in the brief, the Court of Ap-

peals rendered its decision without opinion affirming the

order of disbarment.

Questions Presented

The questions presented are whether the decision of

the Appellate Division and the decision of the Court of

Appeals affirming it without opinion constitute a denial —

of due process and the equal protection of the laws under —

the Federal Constitution to petitioner in the following

respects :

1. In the Appellate Division’s disbarring petitioner on

testimony not in the record of either case against him but —

considered, without notice to him, from the record of a —

ease to which he was not a party, wherein he had none of

the rights of a party and was unable therein or at any time

to cross-examine the witnesses, from which record came the |

only evidence to sustain the disbarment decision. =

—_— -

15

2. In the Appellate Division’s finding that ‘*the facts

involved are stated in detail’’ in the Majority Opinion (re-

moval action) based on ‘‘the same evidence’’ and its failure

to find ‘‘the facts involved’’ on the evidence in this case,

including the ‘‘additional evidence’’ submitted by peti-

tioner, which was material and substantial, thereby con-

victing him by considering evidence not introduced in this

case but from outside the record, i. e., Hines case (R. 692).

3. In the Appellate Division’s finding that petitioner

offered ‘‘no evidence’’ beyond his own testimony and that

as to his character, showing that he was in effect and sub-

stance denied a fair hearing notwithstanding the formalities

of one.

4. In the Appellate Division’s finding that petitioner

‘twas subservient to the conspirators’’; Hines could have

‘‘a case disposed of favorably’’ in petitioner’s court; in

effect that he had ‘‘full knowledge’’ and “‘aided’’ the con-

spirators and ‘‘attempted to establish the innocence of

Hines’’, and testified ‘‘to bring about the acquittal of

Hines’’; the petitioner was convicted of these additional

charges, without any evidence to support them, which were

far graver than those actually preferred, thereby denying

him the sacred right of notice and hearing and the right to

counsel as to these additional charges derived solely from

perjured testimony (258 A. D. 470).

5. In the Appellate Division’s invidiously applying re-

troactive rulings to petitioner’s two decisions in order to

surmise that he was guilty of wrongdoing in making them.

6. In the Appellate Division’s indiviously violating the

Circumstantial Evidence Rule in petitioner’s case without

changing it as to future litigants, and in likewise violating

the rule against basing suspicion on suspicion (from peti-

tioner’s decisions to his testimony and from the testimony

to his decisions), and in disregarding the uneontradicted

testimony as to the issues.

—

16

7. In the referee’s invidiously refusing to permit peti-

tioner to testify as to the advice of his counsel that his two

decisions were correctly made and that he should take the

witness stand in the Hines trial and defend himself and

the decisions, which testimony would have been material

as to his motive and intent in testifying in the Hines trial

(R. 37). ;

Reasons for Granting the Writ

The Federal Constitutional questions raised are of wide

interest and concern to attorneys and others and have not

been categorically answered by a decision of this Court.

Petitioner values very greatly being a member of the bar

of the State courts and of this Court and prays that he

may not be deprived of either through the lack of due process

in the decisions of the State courts.

Wuererorz, your petitioner respectfully prays that a

Writ of Certiorari be issued in due form to the Court of

Appeals of the State of New York in the above entitled

matter commanding that Court to certify and send to this

Court for its review and determination a full and complete

transcript of the Record and all proceedings in said case,

and that the order of the Court of Appeals affirming the

disbarment order may be reversed by this Honorable Court

and that your petitioner may have such other and further

relief as to this Honorable Court may seem just and proper.

Hutton CapsHaw,

Petitioner.

CERTIFICATE

We hereby certify that we have prepared the foregoing

Petition and that in our opinion it is well founded and

entitled to the favorable consideration of this Court.

Tae .s I. SHermay,

Dean ALFANGE,

Attorneys for Petitioner.