Respondents Brief — Gerstein v. Pugh
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IN THE FEB 26 .9/4
SUPREME COURT OF THE UNITED STATES .. -..
OCTOBER TERM, 1973 J ae
NO. 73-477
RICHARD E. GERSTEIN, State Attorney for the
Eleventh Judicial Circuit of Florida,
in and for Dade County, Florida,
Petitioner,
vs.
ROBERT PUGH and NATHANIEL HENDERSON, on their
own behalf and on behalf of all others
similarly situated, and
THOMAS TURNER and GARY FAULK on their
own behalf and on behalf of all others
similarly situated,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF FOR RESPONDENTS
BRUCE S. ROGOW
733 City National Bank Building
25 West Flagler Street
Miami, Florida
PHILIP A. HUBBART
Metropolitan Justice Building
1351 N.W. 12 Street
Miami, Florida
Counsel for Respondents
ee
Washington OC * CLS PUBLISHERS © LAW PRINTING CO «+ (202) 393-0825
GP ede eee
I. The Due Process Clause of the Fourteenth
Amendment Requires that an Arrested Per-
son, Held in Custody, be given a Prompt
Judicial Hearing to Determine if Probable
Cause Exists to Deprive Him of His Liberty. .
A. The Decisions of This Court Which Pro-
hibit the Taking of Property Without a
Prior Hearing, and Prohibit the Taking of
Conditional Liberty Absent a Subsequent
Hearing, Require That the Taking of
Absolute Liberty Be Followed By a Hear-
Of The Elements Essential To A Due Pro-
(ii)
Page
Ill. The Failure to Accord Preliminary Hearings
to all Misdemeanants, Proceeded Against by
Information or Not, Violates the Equal Pro-
tection and the Due Process Clauses of the
Fourteenth Amendment and the Fourth
SD ow 606 6606 060050466566 Chase en 22
IV. The Cases Relied Upon by the State Attorney
are not Determinative of ThisCase. ............ 27
A. Hurtado vy. California, 110 US. 516
(1884) and its Progeny Relate to Pre-
liminary Hearings Prior to Arrest, An
Issue Not Presented Here. ................ 27
B. The Several Courts of Appeal Decisions
Cited By the State Attorney Are Not
C. Rule S(c), Federal Rules of Criminal Pro-
cedure and Title 18 U.S.C. §3060(e) Do
a ee ee 31
V. The Judgment of the District Court was a
Proper Exercise of Jurisdiction. Neither
Abstention, The Anti-Injunction Statute or
Younger v. Harris, 401 U.S. 37 (1971), Bar
ee eb? Dee 32
VI. Providing Preliminary Hearings will Promote
the Efficient Administration of Justice.......... . 34
SE; Ghche coke eh acheas cds Eee ceo 35
ee 36
Gee 0.0 k kbeal ccoccd iets eee | la
TABLE OF AUTHORITIES
Cases
Argersinger v. Hamlin, 407 U.S. 25(1972) ............ 26
Armstrong v. Manzo, 380 U.S. 545, 552(1965) ...... 6, 12, 26
(iii)
Page|
Baugus v. State, 141 So.2d 264 (Pla. 1972) .............. aa
Beck v. Washington, 369 U.S. 541 dds bw be 9,27,29,30
Bell v. Burson, 402 U.S. ee 6,13
Board of Regents v. Roth, 408 U.S. ee 13
Cafeteria and Restaurant Workers Union v. McElroy,
Oe. OO ED hid wb dri ul's ko do's 4 Dated 3 13
Coleman v. Alabama, 399 U.S. PEE 8606 vnc Hibs 7,19,35
Coolidge v. New Hampshire, 403 U.S. 443(1970) ..... Passim
Frontiero v. Richardson, __US.__ , 93 S.Ct. 1764
GO Kab ived saevuuckeasies cedluallaall 3 9,24
Fuentes v. Shevin, 407 U.S. 67 ( EE Bh iCbBee oe 6,10,12,33
Gagnon v. Scarpelli, U.S. 93 S.Ct. 1756 (1973). 6,8,15,20
Goldberg v. Kelly, 397 U.S. 254 ( ee Sk bev are 6,8,13,15,20
Grannis v. Ordean, 234 U.S. 385 ( NS > ob aneeec 6,8,12,23
Hurtado v. California, 110 U.S. RS ea 9,27,30
Joint Anti-Fascist Refugee Committee v. McGrath,
chal RPE ty eg tee gil oreighds 16,20
Lake Carriers Association v. MacMullan, 406 U.S. 498
GO €i Bb dveeciascheidiacteesccstt.. 10,32
Lem Woom v. Oregon, 229 U.S. 586 Es 9,27,28,30
McGowan v. Maryland, 366 U.S. 420 (1961) thls 6am 26
McNabb v. United States, 318 U.S. 332 Pe cbsdase eh 7,29
Meyer v. Nebraska, 262 U.S. thes daitue cas 13
Mitchum v. Foster, 407 U.S. 225 ES a ae 10
Morrissey v. Brewer, 408 U.S. 471 eee ees -Avodce passim
Murray v. Hoboken Land Co., 59 U.S. (18 Howard)
FOE 6 atic ceoontanns sbbbictdi lds 7,15
Ocampo v. United States, 234 U.S. 91 Se dccks 9,27,29,30
Palko v. Connecticut, 302 U.S. Pe ee eee 16
Pointer v. Texas, 380 U.S. 400 Diy ss wiveaw dail. 7,19
(iv)
Roe v.Wade, US. ,93S.Ct. 705(1973)....... 5,8,23,26
Sangaree v. Hamlin, 235 So.2d 729 (Fla. 1970) .......... 3
Shadwick v. City of Tampa, 407 U.S. 345 (1971) ...... 8,22,29
Shapiro v. Thompson, 394 U.S. 618 (1969)............ 8,23
Sibron v. New York, 392 U.S. 40(1968) ...........55. 5
Sniadach v. Family Finance Corporation, 395 U.S.
fA rer €or Ea aren 6,13
Southern Pacific Terminal Co. v. ICC,, 219 U.S. 498
EN ee ee Peer Pr rae eee 5
Stanley v. Illinois, 405 U.S. 645 (1972) ...........55. 6,13
State Ex Rel. Hardy v. Blount, 261 So. 2d 172 (Fla.
Cetin. an deta hk ate oe pene cake 3,10,12,33
Twining v. New Jersey, 211 U.S. 78 (1908)... .......... 15
Thies v. State, 178 Wis. 98, 189 N.W. 539(1922)......... 19
United States v. Burr, 25 Fed. Cas. 2 (C.C.A. Va.
rose lke the os Cees tak OS CA wes ae 9.6 60 7,17
Younger v. Harris, 401 U.S. 37 (1971).......... 10,11,32,33
Widener v. Croft, 184 So. 2d 444 (Fla. 1966) ........... 33
Wisconsin v. Constantineau 400 U.S. 433 (1972) ........ 6,13
Wolf v. Colorado, 338 U.S. 25(1949) .............4.. 23
Constitutional Provisions
United States Constitution, Amendment XIV ........... 14
Statutory Provisions
ee EE in. 0.0. 0:d8 0 pK nb enamenivs 10,31
Wee Cs USE. vv cetcccccceseccbetets 32
Wee es WE W566 iN cp ea ether E Ss 10,32
Fe ee NED 6 ob hick ct EWN 001 ct Seeds 10
Rules
Federal Rules of Criminal Procedure, Rule5 ........... 10,31
Federal Rules of Criminal Procedure, Rule7 ............ 31
(v)
Page
meses Rules of Criminal Procedure, Rule 3.131(a) $,10,12,22,33
Florida Rules of Criminal Procedure, Rule 3.131(b) ... . 5,12,25
Florida Rules of Criminal Procedure, Rule SS) 25
Florida Rules of Criminal Procedure, Rule 3.040 ....... 25
Other Authorities
41 Am. Jur.2d “Indictments and Informa 4
(1968) a
V oF FUNC S SOS UE Aw EN ENEE cGtia direts os «< 19
Comment, The Preliminary Hearing — Interest
Analysis, 51 lowa L.Rev. 164 (1965) = ih Wee-e eda ac 16
Comment, The Preliminary Examination — Evidence
and Due Process, 15 Kan. L.Rev. a 14
Goldfarb, Ransom, Harper and Row, New York
a nk ee Ae th mn ese pe 32
Holdsworth, A History of English Law (3d Ed. 1945) .... 7,16
Katz, Justice is the Crime, Pre-Trial Delay in Felon
Cases, The Press of Case Western Reserve Univer
sity, Cleveland and London (1972).............. 2,17,35
Maitland, The Constitutional History of England
WP hes hades Vekebemseicbuinl.... 17
McIntyre and Lippman, Prosecutors and Early Dis-
Position of Felony Cases, 56 A.B.AJ.(1970) ........ 11,34
Paulsen and Kadish, Criminal Law and Its
Little Brown and Co. ( a ae pe oe 34
Plunkett, A Concise History of the Common Law
pep eetcubegs peters eee 16
Report on Courts, National Advisory Commission on
Criminal Justice Standards and Goals, Standard
COE $04U Nin 8004S Che Jhb ed’ 35
Report on Police, National Advisory Commission on
Criminal Justice Standards and Goals, Standard
II 0b suns cnctbdeuwid dc aes ack 25
(vi)
Page _
Scott, Criminal Law in Colonial Virginia, Univ. of
Chicago Press, Chicago (1930) ................. 7,17
Smith, Colonial Justice in Western Massachusetts,
Harvard Univ. Press, Boston (1961) .............. 7,17
Stephen, Select Essays in 1nglo-American Legal
ED 0s wind oud Mead» chen cen c 16
4 Wharton’s Criminal Law and Procedure, §1731 ”
SN ii ee eenaths ca SMe eae nee Za okies
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1973
No. 73-477
RICHARD E. GERSTEIN, State Attorney for
the Eleventh Judicial Circuit of Florida,
: f ;
in and for Dade County Petitioner,
v.
ROBERT PUGH and NATHANIEL HENDERSON, on
their own behalf and on behalf of all
others similarly situated, and
THOMAS TURNER and GARY FAULK, on their
own behalf and on behalf of all
th imilarly situated,
— or Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF FOR RESPONDENTS
OPINIONS BELOW
The original opinion of the United States District
Court for the Southern District of Florida is reported at
332 F.Supp. 1107 (S.D. Fla. 1971). The Order adopting a
plan to implement the original opinion is reported at 336
F.Supp. 490 (S.D. Fla. 1972). The District Court find-
ings, requested by the Court of Appeals after oral argu-
ment are reported at 355 F.Supp. 1286 (S.D. Fla. 1973).
The opinion of the United States Court of Appeals for
the Fifth Circuit is reported at 483 F.2d 778 (Sth Cir.
1973).
2
STATEMENT OF THE CASE
This case focuses upon the question of whether an
arrested person, held in custody, has a Fourteenth
Amendment due process right to a prompt judicial hear-
ing to determine if probable cause exists to deprive him
of his liberty. It also presents the question of whether an
information, filed by a State Attorney, obviates that
right.
The case does not involve persons arrested upon indict-
ments returned by a grand jury. Therefore the right to a
probable cause hearing after indictment is not presented.
The Attorney General of Florida, in his amicus curiae
brief, has invited this Court to reach that question. He
has suggested that there is “no difference in fact or sub-
stance”’ between informations and indictments and that a
grand jury is merely the alter ego of a state attorney
(Amicus Curiae Brief of the State of Florida, pp. 4-5).
That concession may be true. But this case does not
require consideration of the problem. Thus the brief deals
only with the rights of persons arrested upon some basis
other than a grand jury indictment.
It must be emphasized that the respondents do not
seek to declare unconstitutional or enjoin the use of
informations per se. As a speedy method of screening and
initiating charges, the information may be a useful tool.'
The respondents merely assert that there must be a
juducial determination of probable cause even if an in-
formation is filed, because a state attorney cannot,
consistent with the Fourteenth and Fourth Amendments,
determine probable cause in an ex parte proceeding. It is
‘Katz, Justice is the Crime, Pretrial Delay in Felony Cases, The
Press of Case Western Reserve University, Cleveland and London
(1972), pp. 105-106.
3
that which the State Attorney has unsuccessfully
opposed throughout this litigation.
The petitioners’ Statement of the Case is essentially
correct. However, a difference in emphasis necessitates a
restatement by the respondents.
The case commenced on March 22, 1971 when Robert
Pugh and Nathaniel Henderson filed a class action suit in
the United States District Court for the Southern District
of Florida against various Dade County, Florida public
officials, including State Attorney Richard Gerstein. Pugh
and Henderson were incarcerated in the Dade County Jail
upon informations filed by the State Attorney. They
sought a judicial hearing to determine probable cause for
their detention (App. 3). Florida law forbade them such a
hearing. Sangaree v. Hamlin, 235 So.2d 729 (Fla. 1970),
Baugus v. State, 141 So.2d 264 (Fla. 1962). That rule
persists today. Rule 3.131(a), Florida Rules of Criminal
Procedure, State ex. rel Hardy v. Blount, 261 So.2d 172
(Fla. 1972).
The plight of Pugh and Henderson was typical. In-
carcerated defendants proceeded against by information
often waited in jail for a month or more before they were
even arraigned. That time wes -:onsumed by a process
described by James Regan, th. Administrative Assistant
to the State Attorney (App. 44-60).
Mr. Regan testified that one day to two weeks or more
after a police officer made an arrest, the officer would
present himself to the State Attorney’s office to file an
information. (App. 47). Within one to three j
days, the assistant state attorney who took the com-
plaint, prepared it, processed it, and then it was signed by
the State Attorney or one of his assistants. (App. 50).
Thereafter the information was filed with the clerk of the
4
court, who assigned it to a judge so that the case could be
calendared. That process took from one to seven days.
(App. 56). On the “average”, ten to fifteen days elapsed
between the time the complaining party appeared in the
State Attorney’s office and the defendant appeared in
court. (App. 57). Added to that period was the time it
took for the complainant to go to the State Attorney’s
office (one day to two weeks or more [App. 471] ). Thus,
in excess of a month sometimes passed from arrest to
arraignment. During that time no judicial inquiry was
conducted to determine if probable cause existed for the
person’s detention. Indeed, no such opportunity existed
until trial.
Some of the charges presented to the State Attorney’s
office were deficient and he declined to prosecute them
(App. 45). Between January 1, 1970 and March 31,
1971, the State Attorney’s office determined that 1165
charges were unwarranted and these were “no actioned”
(App. 45). The “no actions” occurred only after the com-
plainant (usually police officers) appeared before an
assistant state attorney (App. 45).
Upon those facts the District Court issued its original
opinion and final judgment declaring unconstitutional the
Florida practice of denying a judicial determination of
probable cause to persons proceeded against by informa-
tion (App. 70-87; Pugh v. Rainwater, 332 F.Supp. 1107
[1971]). The Court asked for the submission of plans to
provide preliminary hearings and adopted the only one
suggested, a plan proposed by the Director of Public
Safety of Dade County. (App. 88-96; Pugh v. Rainwater,
336 F.Supp. 490 [1972]). The State Attorney appealed
to the Fifth Circuit.”
*It is interesting to note that the Attorney General of Florida,
who appears here as Amicus Curiae, did not appeal. In fact, the
Attorney General, representing several defendant judges, asked that
they be permitted to become plaintiffs on the matter of pre-
liminary hearings because they agreed that those hearings were
commanded by the Constitution. (App. 63-64; 67).
5
_ Shortly thereafter, the judges of Dade County
implemented their own plan to provide preliminary hear-
ings for persons not charged by information. The State
Practices under the system implemented by the judges in
Dade County to determine if constitutional infirmities
still existed (App. 97-98),
hearings for those charged with offenses punishable by
death or life imprisonment.’ Rule 3.131(b), Florida
Rules of Criminal Procedure.
Ce
.
a a —“‘“<zuzu“‘(é“‘é‘a‘isleiC
6
The parties stipulated that the District Court re-assess-
ment should also include the effect of the Amended
Rules upon the plaintiffs’ class (App. 103). After an
evidentiary hearing the District Court found once again
that permitting the State Attorney to obviate a pre-
liminary hearing violated the Due Process Clause of the
Fourteenth Amendment and the Fourth Amendment.
The District Court also concluded that the exclusion of
misdemeanants and the delayed hearings for capital or
life imprisonment offenses ran afoul of the Due Process
and Equal Protection Clauses of the Fourteenth Amend-
ment and the Fourth Amendment (App. 99-114, 115,
355 F.Supp. 1286 [1973}).
The Fifth Circuit affirmed, Pugh v. Rainwater, 483
F.2d 778 (1973). This Court granted certiorari.
SUMMARY OF ARGUMENT
I. A. The fundamental requisite of due process of law
is “the opportunity to be heard.” Grannis v. Ordean, 234
U.S. 385, 394 (1914). That opportunity “must be
granted at a meaningful time and in a meaningful
manner.” Armstrong v. Manzo, 380 U.S. 545, 552
(1965).
A due process hearing is required prior to the taking of
property. Fuentes v. Shevin, 407 U.S. 67 (1972); Stanley
v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 US.
535 (1971); Wisconsin v. Constantineau, 400 U.S. 433
(1971); Goldberg v. Kelly, 397 US. 254 (1970):
Sniadach v. Family Finance Corporation, 395 U.S. 337
(1969). A parolee, or probationer, convicted of a crime,
is entitled to a hearing if the state seeks to revoke his
conditional liberty. Morrissey v. Brewer, 408 U.S. 471
(1973). Gagnon v. Scarpelli, US. _, 93 S.Ct. 1756
(1973).
Therefore a person arrested and incarcerated, who is
presumed to be innocent, must be accorded a hearing
before a judicial officer as soon as possible after his arrest
7
to determine whether probable cause exists to deprive the
arrestee of his absolute liberty. The failure to accord such
a hearing deprives a person of liberty without due process
of law in violation of the Fourteenth Amendment.
B. The historical evolution of the preliminary hearing
process and its nearly universal use by the states supports
the proposition that such hearings are required by the
Constitution. Due process is an evolving concept. Rochin
v. California, 342 U.S. 165 ( 1952). The Court looks to
the history of a practice and its utilization to determine
its constitutional necessity. Murray v. Hoboken Land Co.,
59 U.S. (18 Howard) 272, 276-277 (1855). Preliminary
examinations were used in England in the Twelfth
Century and codified in the Sixteenth Century. 1
Holdsworth, A History of English Law (3d Ed. 1945); Id.
4 Holdsworth $29. The practice was followed in America
before and after the revolution. Scott, Criminal Law in
Colonial Virginia, 55-58 Univ. of Chicago Press, Chicago
(1930). Smith, Colonial Justice in Western Massachusetts,
153-154, Harvard University Press, Boston (1961). In
(See, McNabb v. United States, 318 US. 332, 342 (1943)
and Appendix, infra). But in Florida, such a hearing is
precluded if an information is filed.
This Court has extended the right to counsel and the
right to cross examination to Preliminary hearings.
Il. A. An information filed by a state attorney
cannot obviate the right to a probable cause hearing
because the information process provides none of the
elements which constitute a due process hearing. A
hearing under the due process clause includes the right to
notice of the charge, the right to confront and cross
examine witnesses, the right to be heard in one’s own
defense and the right to be heard by a neutral and
detached person. Morrissey v. Brewer, 408 US. 471, 489
(1972); Gagnon v. Scarpelli, _ US. __, 93 S.Ct. 1756,
1761-1762 (1973); Goldberg v. Kelly, 397 US. 254,
267-268 (1970). The determination of probable cause
made by the process of filing an information contains
none of those elements and consequently is violative of
the due process clause of the Fourteenth Amendment.
B. The Fourth Amendment commands that probable
cause for an arrest be determined by a “neutral and
detached” magistrate. Shadwick v. City of Tampa, 407
U.S. 345, 350 (1971). A state attorney, who is a
prosecutor, is not a neutral and detached magistrate.
Coolidge v. New Hampshire, 403 U.S. 443, 450, 453
(1970). Thus the State Attorney cannot be the sole
arbiter of probable cause for arrest and detention.
Ill. The failure to accord preliminary hearings to all
incarcerated misdemeanants, proceeded against by infor-
mation or not, violates the equal protection clause, the
due process clause and the Fourth Amendment. The total
exclusion of misdemeanants from the opportunity for a
preliminary hearing constitutes a classification which is
arbitrary, irrational and without any compelling justifica-
tion. The due process right to be heard is a fundamental
right. Grannis v. Ordean, 234 U.S. 385 (1914). In order
to justify a classification affecting a fundamental right,
the state must show a “compelling interest.” Roe y.
Wade, _US.__, 93 S.Ct. 705, 728 (1973); Shapiro v.
Thompson, 394 U.S. 618, 634 (1969). The State has not
9
attempted to show such an interest. Nor has the State
presented any rational basis for the classification. Thus
under either test for equal protection, the classification
imposed upon misdemeanants must fall under the Four-
teenth Amendment’s prohibition against classifications
which cannot be justified. Frontiero v. Ric
U.S. ___, 93 S.Ct. 1764 (1973).
The denial of preliminary hearings to all incarcerated
misdemeanants held upon informations or police arrests
also violates the due process clause and the Fourth
Amendment. Morrissey v. Brewer, 408 U.S. 471 (1973),
Coolidge v. New Hampshire, 403 U.S. 443 (1970).
IV. A. The State Attorney’s reliance upon Hurtado vy.
California, 110 U.S. $16 (1884); Lem Woom vy. Oregon,
229 U.S. 586 (1913) and Ocampo v. United States, 234
U.S. 91 (1914) is misplaced. Those cases permit prosecu-
tions to be initiated by information without prior judicial
determination of probable cause. Here subsequent deter-
minations of probable cause are sought. The State
Attorney’s attempt to impute approval in Beck y.
Washington, 369 U.S. 541 (1962), for the denial of
subsequent probable cause hearings is without founda-
tion. The issue of probable cause hearings was not present
in Beck. The Court’s comment approving informations
filed “without even a prior judicial determination of
probable cause” /d. 369 US. at 545, is merely a
reaffirmation of Ocampo and Lem Woom. In no case has
this Court approved the use of an information without a
subsequent judicial determination of probable cause.
B. The State Attorney’s reliance upon various Courts
of Appeal decisions which hold that due process does not
mandate preliminary hearings is equally misplaced. (Peti-
tioner’s Brief, pp. 16-17). Those cases contend with the.
argument that an otherwise valid conviction is vitiated by
the denial of a preliminary hearing. This case makes no
such argument. Thus those cases are not applicable to the
limited assertion made here.
,
__
10
C. The fact that an information obviates the right to a
preliminary hearing under Rule 5 of the Federal Rules of
Criminal Procedure and Title 18 U.S.C. §3060(e) is not
determinative of this case. The State and State Attorney
erroneously contend that the mere existence of a federal
rule and statute supports the maintenance of a constitu-
tionally defective state practice. If the Florida practice
does defy the Constitution, then the federal practice
would share the infirmity. But even if the constitutional
precedent lent itself to application to the federal system,
it would have little practical impact because informations
have limited use in federal prosecutions. Rule 7a),
Federal Rules of Criminal Procedure.
V. Neither abstention, the anti-injunction statute
(Title 28 U.S.C. §2283) or Younger v. Harris, 401 US.
37 (1971) bar the relief granted by the Court of Appeals.
This case presents no question of state law which could
be construed by the Florida courts to avoid the federal
constitutional issues. Consequently abstention is no bar.
Lake Carriers Association v. MacMullan, 406 US. 498,
511 (1972). Since this is a suit under Title 42 U.S.C.
§1983, the anti-injunction statute (Title 28 U.S.C.
§2283) is no barrier. Mitchum v. Foster, 407 U.S. 225
(1972). The plaintiffs have never sought to interfere with
or enjoin any pending or future court proceedings. They
seek only a pre-trial procedural right. The granting of
such a right does not run afoul of the comity principles
of Younger v. Harris. Cf. Fuentes v. Shevin, 407 U.S. 67.
71,m. 3 (1971).
Even if Younger v. Harris were applicable, this case
would be an exception to it. A deprivation of liberty
constitutes great and immediate irreparable injury. That
injury cannot be redressed in the Florida courts in any
proceeding because of their adamant support of the
practice which causes the deprivation of liberty. State ex
rel. Hardy v. Blount, 261 So.2d 172 (Fla. 1972), Rule
3.131(a), Florida Rules of Criminal Procedure. Such a
situation constitutes an exception to Younger v. Harris,
401 U.S. 37, 46 (1972).
utilized (App. 109). An American Bar Foundation study
estimated that the clearance rate for felonies at the
preliminary hearing stage was eighty percent in
and sixty-five percent in Brooklyn, New York. Mcintyre
and Lippman, Prosecutors and Early Disposition of
Felony Cases, 56 A.B.A.J. 1154, 1156 (1970). Other
studies reflect similar results. Early resolution of felony
and misdemeanor charges is Promoted by a speedy
preliminary hearing offering both sides an Opportunity to
assess the strength or weakness of the case and agree to a
plea. The experience in Dade County, Florida shows that
early resolution also reduces costs for jail maintenance
(App. 109). Thus Providing preliminary hearings will
better serve both governmental and private interests.
ARGUMENT
L.
THE DUE PROCESS CLAUSE OF THE FOUR-
Florida law denies preliminary hearings after arrest to
persons proceeded against by an information filed by a
12
state attorney. Rule 3.131(a), Florida Rules of Criminal
Procedure, State ex rel. Hardy v. Blount, 261 So.2d 172
(Fla. 1972).* All misdemeanants, no matter how their
prosecution is begun, are denied preliminary hearings.
Rule 3.131(a), Florida Rules of Criminal Procedure.‘
The Fourteenth Amendment provides that no state
shall “. .. deprive any person of life, liberty, or property,
without due process of law .. .” In Armstrong v. Manzo,
380 U.S. 545 (1965) this Court wrote:
A fundamental requirement of due process is ‘the
opportunity to be heard.’ Grannis v. Ordean. 234
U.S. 385, 394. It is an opportunity which must be
*That decision leaves no doubt that the prosecutor alone can
determine probable cause without any hearing:
When a prosecuting attorney files an information against a
defendant, he conclusively determines that the evidence is
— to establish probable cause to put the defendant on
trial.
State ex rel. Hardy v. Blount, 261 So.2d at 174.
On February 4, 1974, the Florida Supreme Court amended
Rule 3.131(b) of the Florida Rules of Criminal Procedure. extend-
ing the time for a state attorney to file an information and deter-
mine probable cause so that he would be better able to prevent
preliminary hearings (Appendix to Brief, p. 4). If the prosecutor
does not file an information in time to deprive a person of a
preliminary hearing, and a judicial officer conducts one and finds
no probable cause, the State Attorney can overrule that decision:
-.. even if a defendant were granted a preliminary hearing
and the committing magistrate discharged the defendant for
lack of probable cause, the prosecuting attorney could never-
theless determine that probable cause exists and file an infor-
mation charging the defcndant with the commission of the
offense.
State ex rel. Hardy v. Blount, 261 So.2d at 174.
*The Rule supercedes Florida Statutes §§901.06 and 901.23
which required all persons arrested with or without a warrant to be
brought before a magistrate. Those statutes were repealed. 2 West’s
Florida Session Laws, 1973, Chap. 73-27. Consequently Rule
3.131(a) and State ex rel Hardy v. Blount form the foundation of
this controversy.
13
granted at a meaningful time and in a meaningful
manner.
Id. 380 U.S. at $52.
Due process has been held to require a hearing prior to
the taking of one’s property. Fuentes v. Shevin, 407 U.S.
67 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Bell
v. Burson, 402 U.S. 535 (1971 ); Wisconsin v. Con-
stantineau, 400 U.S. 433 (1971); Goldberg v. Kelly, 397
U.S. 254 (1970); Sniadach vy. Family Finance Corpora-
tion, 395 U.S. 337 (1969).
The hearing sought in this case is a subsequent one: a
probable cause determination made promptly after arrest.
That request is consistent with the concept of flexibility
inherent in due process.
Consideration of what Procedures due process may
require under any given set of circumstances must
begin with a determination of the precise nature of
the government function involved as well as of the
private interest that has been affected by govern-
mental action.
Cafeteria & Restaurant Workers Union v. McElroy,
367 U.S. 886, 895 (1961).
The government function involved here is the State’s
duty to charge and arrest persons suspected of the
commission of a crime. An adversary hearing pricr to the
exercise of that function might undermine the State’s
ability to apprehend a suspect. The accommodation
which the plaintiffs urge—a prompt hearing subsequent to
arrest—protects the government interest and the private
interest, the fundamental right to absolute liberty.®
*There can be no quarrel over the essential nature of that right
under the Constitution. In Board of Regents v. Roth, 408 U.S. 564
(1973) the Court, speaking of the liberty guaranteed the
Fourthteenth Amendment, wrote: ™
Without doubt, it denotes . . . freedom from bodily restraint.
Id. 408 U.S. at 572, quoting Meyer v. Nebraska, 262 US
390, 399 (1923).
14
Recently the Court has mandated similar hearings for
persons wifose liberty, because of conviction for a crime,
was conditional. In Morrissey v. Brewer, 408 U.S. 471
(1972) the Court stated:
We see therefore, that the liberty of a parolee,
although indeterminate, includes many of the core
values of unqualified liberty and its termination
inflicts a ‘grievous loss’ on the parolee and often on
others. It is hardly useful any longer to try to deal
with this problem in terms of whether the parolee’s
liberty is a ‘right’ or a ‘privilege’. By whatever name,
the liberty is valuable and mist be seen as within the
protection of the Fourteenth Amendment.
Id. 408 U.S. at 482.
The Court provided the protection by requiring a rapid
hearing:
... due process would seem to require that some
minimal inquiry be conducted at or reasonably near
The Amicus Curiae Brief of the Attorney General misapprehends
the right respondents seek to protect. The Attorney General con-
tends that the Florida Rules of Criminal Procedure which permit
pre-trial discovery and require a speedy trial guard the rights of a
defendant. But it is not the right to a fair or speedy trial which is
lost by the denial of a preliminary hearing. It is the right to liberty
for those improperly incarcerated which is irretrievably denied. It
is small consolation for an innocet jailee that his lawyer may take
depositions or that he must be tried within 60 days. One com-
mentator has said:
Although the preliminary examination is not a trial in the
ordinary sense, it can have a profound effect on the indi-
vidual involved. While being bound over for trial is often
regarded as insignificant by judges and writers, it may result
in three to six months incarceration, the degradation and
expense of a criminal trial and irreparable harm to the
accused's reputation, regardless of the ultimate outcome at
the subsequent trial. Comment, The Preliminary Examina-
tion-Evidence and Due Process, 15 Kan. L. Rev. 374-376
(1967) (footnotes omitted).
15
the place of the alleged parole violation or arrest and
as promptly as convenient after arrest while infor-
mation is fresh and sources are available. Cf. Hyser -
v. Reed, 115 U.S. App. D.C. 254, 318 F.2d 225
(1963). Such an inquiry should be seen as in the
nature of a ‘preliminary hearing’ to determine
whether there is probable cause or reasonable
ground to believe that the arrested parolee has
committed acts that would constitute a violation of
nny gaa aaee Cf. Goldberg v. Kelly, 397 US. at
Id. 408 U.S. at 485.
Gagnon v. Scarpelli, ___ US. —___., 93 S.Ct. 1756,
1759-1760 (1973) accorded similar protection to the
termination of the conditional freedom of probationers.
Persons arrested and detained upon a police officer’s
suspicion of probable cause and a state attorney’s
information are deprived of their absolute right to
liberty. They are presumed to be innocent. Due process
compels the conclusion that they are entitled to a hearing
after arrest to determine whether they have committed
acts which justify the taking of their liberty.
B. The Historical Evolution of the
Hearing and Its Universal Recognition By All
This Court has long held that in determining whether a
given procedure is an essential part of due process of law,
it must look to the historical development of the
procedure both in England and America. Murray y.
Hoboken Land Co., 59 U.S. (18 Howard) 272, 276-277
(1855); Twining v. New Jersey, 211 US. 78, 100 (1908).
Due process by its very nature is an evolving concept
which cannot be fixed in the confines of a single formula
a ——s—“‘—SSSSS
16
and expresses in its deepest sense our civilization’s
revulsion against arbitrary governmental action. Rochin y.
California, 342 U.S. 165 (1952); Joint Anti-Facist
Refugee Committee v. McGrath, 341 U.S. 123, 162
(1951) (Frankfurter, J. concurring); Palko v. Connecti-
cut, 302 U.S. 319 (1937).
The practice of according prompt preliminary hearings
to persons accused of crime has a long history. Indeed.
“the preliminary hearing is an ancient institution,”
Coleman v. Alabama, 399 U.S. 1, 22 (Burger, C.J.,
dissenting) with roots in the common law. It was first
used in England by the Crown’s coronors, probably as
early as the Twelfth Century, to conduct inquests into
unnatural deaths. Comment, “The Preliminary Hearing
~ An Interest Analysis”, 51 lowa L. Rev. 64, 65 ( 1965):
| Holdsworth, A History of English Law 82-85 (3d Ed.
1945).” In 1554 and 1555 Parliament passed the Statutes
of Philip and Mary which required coronors and justices
of the peace to conduct preliminary examinations in all
felony cases. | Holdsworth 84; 4 Holdsworth 296. It is
probable that these statutes gave legal sanction to
practices which existed earlier without express statutory
authority. Stephen, “Criminal Procedure From the Thir-
teenth to the Eighteenth Century” Vol. 2 Select Essays in
Anglo-American Legal History, 459 (1968).
Although these early preliminary examinations were
inquisitional in nature patterned after continental prac-
tices, | Holdsworth 296; 4 Holdsworth 528-529, they
contained some of the characteristics of the modern
preliminary hearing. Witnesses were required to appear
before the magistrate to give testimony under oath which
was later reduced to writing. Plunkett, A Concise History
of the Common Law 432 (Sth Ed. 1956). If a sufficient
case was developed at the examination, the accused and
witnesses were bound over for trial. | Holdsworth 84-85,
Cited hereafter as “Holdsworth”.
17
296, otherwise the case presumably ended. The magis-
trate’s preliminary examination was designed to check
various abuses of governmental power by the local
sheriff, whose power the Crown viewed with suspicion.®
Gradually, with the development of a professional
police force, the preliminary hearing evolved into an
impartial, judicial inquiry. The magistrate became neutral
and detached from the prosecution. The accused was
accorded the rights of counsel, privilege against self-
incrimination and compulsory process of witnesses. The
function of the magistrate was no longer to investigate
crime, but to impartially determine whether the prosecu-
tion had developed sufficient evidence .gainst the
accused to warrant a trial. | Holdsworth 296-297.
The basic preliminary hearing practice of England was
followed in America both before and after the Revolu-
tion. Scott, Criminal Law in Colonial Virginia 55-58
Univ. of Chicago Press, Chicago (1930); Smith, Colonial
Justice in Western Massachusetts 153-154, Harvard Univ.
Press, Boston (1961). In 1807 Chief Justice John
Marshall conducted the equivalent of a modern pre-
liminary hearing on charges of treason against Aaron
Burr. United States vy. Burr, 25 Fed. Cas. 2, 12 (No.
14692a) (C.C.A. Va. 1807). Marshall delivered an opinion
which established the prevailing law in America on
preliminary hearings:
On an application of this kind, I certainly should
not require that proof which would be necessary to
convict the person to be committed, on a trial in
*Katz, Justice is The Crime — Pre-Trial Delay in Felony Cases,
22-23, The Press of Case Western Reserve, London and Cleveland
(1972). In the Twelfth Century the sheriff was “little less than a
provincial viceroy” controlling all police, justice, fiscal and military
matters in his local district. Maitland, The Constitutional History
of England 232-233 (191 1). The magistrates supplanted the
sheriff's functions relating to arrest, bail and trial of accused per-
sons. /d. 232.
18
chief; nor should I even require that which should
absolutely convince my own mind of the guilt of the
accused: but I ought to require, and I should
require, that probable cause be shown; and |
understand probable cause to be a case made out by
proof furnishing good reason to believe that the
crime alleged has bees committed by the person
charged with having committed it. I think this
opinion entirely reconcilable with that quoted from
Judge Blackstone. When that learned and accurate
commentator says, that ‘if upon an inquiry it
manifestly appears that no such crime has been
committed, or that the suspicion entertained of the
prisoner was wholly groundless, in such cases only it
is lawful totally to discharge him, otherwise he must
be committed to prison or give bail,’ I do not
understand him as meaning to say that the hand of
malignity may grasp any individual against whom its
hate may be directed, or whom it may capriciously
seize, charge him with some secret crime, and put
him on the proof of his innocence. But I understand
that the foundation of the proceeding must be a
probable cause to believe there is guilt; which
probable cause is only to be done away in the
manner stated by Blackstone. The total failure of
proof on the part of the accuser would be con-
sidered by that writer as being in itself a legal
manifestation of the innocence of the accused. In
inquiring, therefore, into the charges exhibited
against Aaron Burr, I hold myself bound to consider
how far those charges are supported by probable
cause.
Today every state has rules, statutes or constitutional
provisions which contemplate preliminary hearings.’ In
most of the states which authorize prosecutions by
information, the prosecuting attorney may file an infor-
mation “only after the defendant has been accorded the
*The Appendix to this Brief contains a state by state analysis of
those provisions.
19
That practice emasculates the historic reason for the
hearing:
The object or purpose of the preliminary {hearing}
is to prevent hasty, malicious, improvident, and
Thies v. State, 178 Wis. 98, 189 N.W. 539, 54]
(1922).
This Court has recognized the critical nature of pre-
liminary hearings. Defendants facing such hearings have
been guaranteed the right to confront and cross examine
witnesses, Pointer v. Texas, 380 U.S. 400 ( 1965), and the
right to counsel, Coleman v, Alabama, 399 US. | (1970).
Those rights have no meaning to a person denied the
hearing itself.
Mr. Justice Frankfurter wrote:
‘due process,’ unlike some legal rules, is not a
technical conception with a fixed content unrelated
to time, place and circumstances. Expressing as it
does in its ultimate analysis respect enforced by law
for that feeling of just treatment which has been
"According to Petitioners’ Brief: Connecticut, Arkansas,
Wyoming, Montana, lowa and Washington share the Florida
practice. (Brief of Petitioner, pp. 13-14).
20
fairness between man and man, and more particu-
larly between the individual and government, ‘due
process’ is compounded of history, reason, the past
course of decisions, and stout confidence in the
strength of the democratic faith which we profess.
Joint Anti-Fascist Refugee Committee y. McGrath,
341 US. 123, 162 (1951) (Frankfurter, J. con-
currir),
The right to a prompt preliminary hearing after arrest fits
securely into due process of law.
il.
AN INFORMATION FILED BY A STATE ATTOR.
A. The Information Process Provides None of the
Elements Essential to a Due Process Hearing.
At the least, the minimum requirements of a due
process hearing are: (1) written notice of the charges; (2)
an opportunity to confront and cross examine adverse
witnesses; (3) the right to be heard and to present
witnesses and documentary evidence; and (4) the right to
have a neutral and detached person determine the
question of probable cause. Morrissey v. Brewer, 408 U.S.
471, 489 (1972); Gagnon v. Scarpelli, __ US. 2,
S.Ct. 1756, 1761-1762 (1973): Goldberg v. Kelly, 397
U.S. 254, 267-268 (1970). The information process
provides none of these safeguards. The administrative
officer for the State Attorney described the method
(App. 44-59). It is wholly ex-parte. The arrestee has no
role at all in the proceedings which affect his liberty.
21
Moreover, a finding of probable cause by the State
Attorney cannot comport with the due process clause,
because the State Attorney is not a “neutral and de-
tached”’ person. In Morrissey the Court commented:
In our view, due process requires that after the
arrest, the determination that reasonable ground
exists for revocation of parole should be made by
someone not directly involved in the case.
Id. 408 U.S. at 485.
The State Attorney is the chief prosecuting official. It
cannot be said that he meets the due process standard set
in Morrissey. That becomes plain when one considers the
requirement of neutrality and detachment embodied in
the Fourth Amendment.
B. The State Attorney Cannet Be the Neutral and
Detached Magistrate Required by the Fourth
Amendment.
The Fourth Amendment provides: “The right of the
people to be secure in their persons . . . against unreason-
able searches and seizures, shall not be violated .. .”
In Coolidge v. New Hampshire, 403 U.S. 443 (1970)
this Court held that the Attorney General of New Hamp-
shire could not be a neutral and detached person who
would be permitted to authorize the issuance of a
warrant for a Fourth Amendment search and seizure:
We find no escape from the conclusion that the
seizure and search ... cannot constitutionally rest
upon the warrant issued by the state official who
was the chief investigator and prosecutor in this
case. Since he was not the neutral and detached
magistrate required by the Constitution, the search
stands on no firmer ground than if there had been
no warrant at all.
Id. 403 U.S. at 453.
22
A warrant for an arrest requires the same degree of neu-
trality and detachment. Shadwick vy. City of Tampa, 407
U.S. 345, 350 (1971)."
The State Attorney, very properly, does not attempt
to distinguish his situation from the “neutral and de-
tached” rules cnunciated in Coolidge, Shadwick (or
Morrissey). He is the chief prosecutorial official and
therefore he cannot, consistent with the Fourth Amend-
ment, be the sole arbiter of probable cause, prior to or
subsequent to an arrest.
THE FAILURE TO ACCORD PRELIMINARY
HEARINGS TO ALL MISDEMEANANTS, PRO-
CEEDED AGAINST BY INFORMATION OR NOT,
VIOLATES THE EQUAL PROTECTION AND THE
DUE PROCESS CLAUSES OF THE FOURTEENTH
AMENDM"NT AND THE FOURTH AMENDMENT.
The Florida Rules of Criminal Procedure (Rule
3.131(a)) deny a preliminary hearing to arrested mis-
demeanants, no matter how their prosecution is insti-
tuted. Those persons suffer the same due process depriva-
tion as persons charged with felonies. They are deprived
of their liverty without an opportunity to be heard. If
"The rationale of Shadwick underlines the Fourteenth Amend-
ment due process nature of this case. Shadwick held, on Fourth
Amendment grounds, that a municipal court clerk was a neutral
23
charged by information, the Fourth Amendment viola-
tion also occurs. '?
The right to be heard is a fundamental right, Grannis vy.
Ordean, 234 U.S. 385, 394 (1914), especially when one is
being deprived of liberty. The guarantees of the Fourth
Amendment are fundamental rights. Wolf v. Colorado,
338 U.S. 25, 27-28 (1949). “Where certain ‘fundamental
rights’ are involved, the Court has held that regulation
limiting these rights may be justified only by a ‘com-
pelling state interest’”. Roe v. Wade. 2! ae
S.Ct. 705, 728 (1973); Shapiro v. Thompson, 394 U.S.
618, 634 (1969).
Neither the State Attorney or the Attorney General, in
their briefs, contend that any state interest is protected
by the total exclusion of misdemeanants.'? Originally, in
the District Court, the State Attorney argued that a fair
trial problem could be created if the magistrate deter-
mining probable cause in a misdemeanant’s case had the
same case assigned to him for trial. The Fifth Circuit
response to that concern was succinct:
The answer to this is not the denial of preliminary
hearings, but the development of a system whereby
judges are rotated to prevent such overlap. Indeed,
The due process and Fourth Amendment discussions in Points
I and Il apply with equal force to this point. They will not be
repeated since this argument focuses upon equal protection.
'* Another classification, delayed hearings for persons charged
with capital offenses or offenses punishable by life imprisonment,
was never rationalized by the State Attorney or the State, nor
alluded to in their briefs in this Court. The classification was struck
as violative of equal protection by the District Court (App.
110-111, Pugh v. Rainwater, 355 F Supp. at 1291-1292) and the
Court of Appeals. Pugh v. Rainwater, 483 F.2d at 789-790. The
point is not argued in this brief since the petitioner and the Amicus
Curiae appear to accept the parity ordered below, if preliminary
hearings are required.
24
the Chief Judge of the Magistrate Division of the
Eleventh Judicial Circuit has already testified that
preliminary hearings and misdemeanor trials are cur-
rently conducted by separate panels of judges in
Dade County.
Pugh v. Rainwater, 483 F.2d at 789.
The Court of Appeals also addressed the State’s con-
cern for the cost of providing preliminary hearings for
misdemeanants. It found ample support for the District
Court’s finding that any increased costs would not be
significant:
The number of misdemeanor cases involving no pre-
trial incarceration and requiring no preliminary hear-
ings comprised the bulk of all misdemeanors.
Moreover, experience from the felony hearing
system showed a reduction in felony caseloads and a
savings to the taxpayers of the county.
Pugh v. Rainwater, 483 F.2d at 789. (footnote
omitted)
Even if there were some basis for the State’s concerns,
this Court has said:
In any case, our prior decisions make clear that,
although efficacious administration of governmental
programs is not without some importance, the Con-
Stitution recognizes higher values than speed and
efficiency.... And when we enter the realm of
‘strict judicial scrutiny,’ there can be no doubt that
‘administrative convenience’ is not a shibboleth, the
mere recitation of which dictates constitutionality.
Frontiero v. Richardson, —_ ak, FC
1764, 1772 (1973) (citations omitted).
Actually, providing jailed misdemeanants with pre-
Eminary hearings will promote speed and efficiency in
the administration of criminal justice. Persons who
should not be detained will be released, saving future
court and police time. Pleas accepted at the preliminary
hearing would result in similar savings.
ee
25
Beyond that, the availability of such a hearing for in-
carcerated defendants would encourage pre-trial release
of those persons, and relieve overcrowded jails."* It
would also motivate courts to provide speedy trials for
misdemeanants, promptly determining guilt or innocence,
instead of probable cause. In Dade County, Florida, that
result has already been achieved."
Most misdemeanors arrests do not contemplate jail
pending trial. Florida provides for the use of a summons
in lieu of arrest and booking in misdemeanor cases.
Florida Statutes § 901.09; Rule 3.130(1) Florida Rules of
Criminal Procedure. That method is rapidly gaining
nationwide support. Report on Police, National Advisory
Commission on Criminal Justice Standards and Goals,
The Director of the Dade County Jail testified that the major-
ity of the 500 persons in his jail were awaiting trial and remained in
custody because they were unable to post pre-trial monetary bond.
(Deposition of Jack C. Sandstrom, reflected in the Record on
Appeal, pages 305-314. See especially pages 308-312). The ques-
tion of the constitutionality of money bail as applied to indigents
was raised in the original complaint filed by Pugh, Henderson and
two intervening plaintiffs. The District Court denied relief on that
claim and a separate appeal was taken by the plaintiffs. That case,
Pugh v. Rainwater, Fifth Circuit No. 72-1223, has not been
decided.
'SThe State Attorney's Brief, at page 18, states:
--» Most misdemeanants in Dade County, Florida have dis-
position of their cases on the merits in a shorter time than
they could be accorded a preliminary hearing under the rules
now in effect.
Those rules, Florida Rules of Criminal Procedure, Rule 3.1 31(b), as
amended February 4, 1974, tolerate a five day lapse between arrest
and preliminary hearing in felony cases. (The first appearance
hearing is required within 24 hours of arrest, Rule 3.130(b), and
the preliminary hearing 96 hours or four days later, unless an infor-
mation is filed.) Actually the rules may condone a seven day lapse
because Rule 3.040 excludes Saturdays, Sundays and holidays in
the computation. The Court of Appeals refrained from deciding
26
Standard 4.4 “Citation and Release on Own Recogni-
zance.” (1973)'*
Thus, an analysis of the competing interests involved in
the classification which excludes misdemeanants compels
only one conclusion: neither a compelling state interest
or a rational basis exist to justify the classification. Under
the strict equal protection test, Roe vy. Wade, _—iUS.
—__, 93 S.Ct. 705, 728 (1973), or the relaxed standard
McGowan v, Maryland, 366 U.S. 420, 425-426 (1961),
the total exclusion of incarcerated misdemeanants from
preliminary hearings must fall.
the delay the Constitution might permit. Pugh v. Rainwater, 483
F.2d at 788. Respondents unsuccessfully cross-petitioned for
certiorari on that point 42 L.W. 3325 (December 3, 1973, Justice
Douglas dissenting). While not attempting to circumvent the
Court’s denial, respondents respectfully submit that the question
of when a hearing is required by due process is a legitimate one.
Armstrong v. Manzo, 380 U.S. 545, 552 ( 1965). A week of incar-
ceration absent a hearing is too long, especially in light of Arger-
singer v. Hamlin, 407 U.S. 25 (1972) which precludes a loss of
liberty for one day absent counsel. For totally excluded mis-
demeanants, Argersinger presents a compelling argument. It seems
constitutionally incongruous to prohibit one day of incarceration
after trial unless counsel is provided or properly waived but on the
other hand, permit lengthy pre-trial incarceration without a
hearing.
The limited impact of giving jailed misdemeanants preliminary
hearings is supported by a footnote in Argersinger v. Hamlin, 407
U.S. 25, 38 n. 10 (1972) reflecting that of 1,288,975 people con-
victed in the City of New York in 1970 for minor offenses, only 24
were incarcerated. With such small numbers being jailed after trial,
it seems clear that the number of minor offenders suffering incar-
ceration prior to trial must be de minimus in nearly all jurisdic-
tions.
Another alternative to providing prelimiuary hearings to mis-
demeanants is suggested by the American Bar Association Special
Committee on Crime Prevention and Control: take various types of
conduct out of the court system. Argersinger v. Hamlin, 407 US.
25, 38 n. 9 (1972).
27
IV
THE CASES RELIED UPON BY THE STATE
ATTORNEY ARE NOT DETERMINATIVE OF THIS
CASE.
A. Hurtado v. California, 110 U.S. 516 (1884)
and Its Progeny Relate to Preliminary Hearings
Prior to Arrest, An Issue Not Presented Here.
Throughout this litigation the State Attorney has
maintained that Hurtado v. California, 110 US. $16
(1884), Lem Woom vy. Oregon, 229 U.S. 586 (1913);
Ocampo v. United States, 234 U.S. 9} (1914) and Beck y.
Washington, 369 U.S. 541 (1962) justify the denial of
preliminary hearings. Both the District Court and the
Fifth Circuit examined those cases and concluded that
they permitted informations without prior judicial deter-
minations of probable cause and found them not determi-
native of the right to subsequent determinations of
probable cause.
Hurtado v. California, 110 U.S. 516 (1884) permitted
the use of an information instead of an indictment as a
method for initiating prosecutions. But the process which
was approved provided for a preliminary hearing prior to
the information:
We are unable to say that the substitution for a
presentment or indictment by a grand jury of the
proceeding by information, after examination and
committment by a magistrate, certifying to the
probable guilt of the defendant, with the right on
his part to the aid of counsel, and to the cross
examination of the witnesses produced for the
prosecution, is not due process of law.
/d. 110 U.S. at 538 (Emphasis supplied.)
The respondents do not object to an information after
a preliminary hearing if probable cause is found. The
information in that situation is merely a charging docu-
ment based upon an independent determination of prob-
28
able cause. It is an information which is neither
preceeded nor followed by an independent determination
of probable cause which runs afoul of the Constitution.
Thus, Hurtado is not inconsistent with the contentions
advanced here.
Lem Woom vy. Oregon, 229 U.S. 586 (1913) allowed
the state to use an information where:
The Constitution and laws of Oregon ... did not
require any examination by a magistrate as a condi-
tion precedent to the institution of a prosecution by
an information filed by the district attorney, nor
require any verification other than his official oath.
Id. 229 U.S. at 587 (Emphasis supplied. )
The Court held that there was no requirement for a
judicial examination “prior to the formal accusation by
the district attorney” /d. 229 U.S. at 590 (Emphasis sup-
plied). The right to a preliminary hearing as a condition
subsequent was not addressed.
In Ocampo v. United States, 234 US. 9} (1934) the
defendants sought to vacate an order of arrest, and invali-
date their subsequent conviction at trial:
- upon the ground that it (the arrest] was made
without any preliminary investigation held by the
court and without any tribunal, magistrate, or other
competent authority having first determined that
the alleged crime had been committed, and that
there was probable cause to believe the defendants
guilty of it...
Id. 234 U.S. at 93 (Emphasis supplied).
The Court found that there was no need for investigation
by a judicial officer prior to arrest:
... the function of determining that probable cause
exists for the arrest of a person accused is only quasi
judicial and not such that because of its nature it
must necessarily be confided to a strictly judicial
officer or tribunal.
Id. 234 U.S. at 100 (Emphasis supplied).
29
That statement is wholly consistent with Shadwick y.
City of Tampa, 407 U.S. 345 (1972), which empowered a
municipal court clerk to determine probable cause for
arrest.
Although the prosecuting attorney in Ocampo deter-
mined that an offense may have been committed, his
information and supporting affidavit were “made be for-
the judge of the court of first instance, who thereupon
issued warrants of arrest." 1d. 234 U.S. at 93 (Emphasis
supplied). Thus, a neutral and detached person stood
between the prosecutor and the defendant. Any other
method, even prior to arrest, would deviate from
Coolidge v. New Hampshire, 403 U.S. 433 (1970) and
Shadwick v, City of Tampa, 407 U.S. 345 (1971). See
also McNabb vy. United States, 318 U.S. 332 (1942).'”
Beck v. Washington, 369 U.S. 54} (1962), as the Court
below stated, adds nothing to Ocampo. The State
Attorney seeks to impute approval for his practice by
reading new meaning into the Court’s comment that since
Washington abandoned its mandatory grand jury
practice:
. - + Prosecutions have been instituted on informa-
tions filed by the prosecutor without even a prior
judicial determination of ‘probable cause’—a pro-
'™The lawful instruments of the criminal law cannot be en-
trusted to a single functionary. The complicated process of
criminal justice is therefore divided into different parts, responsi-
bility for which is separately vested in the various participants
upon whom the criminal law relies for its vindication. Legislation
such as this, requiring that the police must, with reasonable
promptness, show legal cause for detaining arrested persons, con-
stitutes an important safeguard—not only in assuring protection for
the innocent but also in securing conviction of the guilty by
methods that commend themselves to a progressive and self-
confident society.”
McNabb v. United States, 318 U.S. 332, 343-344 (1942).
30
cedure which has likewise had approval here in such
cases as Ocampo v. United States...and Lem
Woom v. Oregon .. . .
Id. 369 U.S. 546.
The State Attorney maintains that the Court was “‘cer-
tainly aware” that Washington law did not require
subsequent judicial determinations of probable cause
(Petitioners’ Brief, page 13). But Beck did not present the
issue of probable cause hearings. The speculative assertion
made by the State Attorney simply has no foundation.
Beck is merely a reaffirmation of Ocampo.
Whatever the application of Hurtado. Lem Woom and
Ocampo, they share one characteristic with the several
Courts of Appeal decisions which the State Attorney
urges in support of his argument. They all attempted to
reverse otherwise valid convictions because of the denial
of a preliminary hearing. No such attempt is made here,
and that fact distinguishes all of the cases cited by the
State Attorney.
B. The Several Courts of Appeal Decisions Cited
By the State Attorney Are Not Applicable.
The State Attorney refers to several Courts of Appeal
decisions which hold that preliminary hearings are not
required by the Due Process Clause.'* Each of those cases
involved a defendant who was seeking to overturn his
"*Scarborough v. Dutton, 393 F.2d 6 (Sth Cir. 1968): Kerr y.
Dutton, 393 F.2d 79 (2d Cir. 1968); Sciortino v. Zampano, 385
F.2d 132 (3d Cir. 1969); Rivera v. Gov't of the Virgin Islands, 375
F.2d 988 (4th Cir. 1967); Barber v. U.S., 142 F.2d 805 (6th Cir.
1944); U.S. v. Luxenberg, 374 F.2d 241 (7th Cir. 1967); Weber v.
Ragen, 176 F.2d 579 (8th Cir. 1949); U.S. v. Gross, 416 F.2d 1205
(9th Cir. 1969); Austin v. U.S., 408 F.2d 808 (10th Cir. 1969); and
Swingle v. U.S., 389 F.2d 220 (D.C. Cir. 1968). The cases involving
federal defendants arose out of indictments and are doubly in-
applicable.
31
otherwise valid conviction because of the denial of a pre-
liminary hearing. That relief is not sought here.
Those cases are grounded upon the sound theory that a
fair trial is possible without a preliminary hearing. The
question presented here is whether a pre-trial deprivation
of liberty is fair without a preliminary hearing. The Fifth
Circuit concluded:
The distinction between a pretrial declaration of a
right to a hearing and a post conviction appeal for
reversal on the basis of the absence of such a hearing
is a pragmatic and sensible distinction.
Pugh v. Rainwater, 483 F.2d at 787.
The Courts of Appeal cases did not consider the right
to a preliminary hearing in the context presented here.
Therefore those decisions are not dispositive of the claims
before this Court.
C. Rule S(c), Federal Rules of Criminal Procedure
And Title 18 U.S.C. §3060(e) Do Not Bar
Relief.
Rule S(c), Federal Rules of Criminal Procedure and
Title 18 U.S.C. §3060(e) disallow preliminary hearings if
an information is filed prior to the hearing date. It is
argued that the existence of those provisions supports the
constitutional validity of the practices under scrutiny
here. The respondents respectfully submit that no such
conclusion can be drawn. The federal information pro-
vision has never been questioned in this Court on
analogous Fifth and Fourth Amendment grounds. In the
absence of such an inquiry, it cannot be said that
§3060(e) and Rule 5(c) govern the constitutional issues
in the instant matter.
As a practical matter, the federal practice would be
minimally affected by affirmance in this case. Under Rule
7(a), Federal Rules of Criminal Procedure, informations
may be used only in misdemeanor cases, unless a felony
defendant waives indictment. Misdemeanants generally
32
secure pre-trial release in the federal system, pursuant to
the Bail Reform Act (Title 18 U.S.C. § 3146 et. seq). In
the state system, pre-trial detention is widespread'® and
preliminary hearings would have a more important
impact.
STATUTE OR YOUNGER »v. HARRIS, 401 US. 37
(1971), BAR RELIEF IN THIS CASE.
The State Attorney has commingled abstention, the
anti-injunction statute (Title 28 U.S.C. § 2283) and
Younger v. Harris, 401 U.S. 37 (1971), in his argument
that the decisions below were improper exercises of juris-
diction. None of those theories bar relief in this case.?°
Abstention is a narrow doctrine properly utilized only
when the state law “is susceptible of ‘a construction by
the state courts that would avoid or modify the [federal]
constitutional question.” Lake Carriers Assoc. Yy.
MacMullan, 406 U.S. 498, 510 (1972). Those circum-
stances do not exist here. The Florida case law and rules
‘Footnote 14, supra. See also Goldfarb, Ransom. Harper and
Row, New York (1965).
The Attorney General, in his Amicus Curiae Brief (pp. 12-16)
asserts another jurisdictional issue. He contends that requiring pre-
liminary hearings would allow an inferior court of Florida to over-
rule a higher court. No decision yet rendered has sought to deline-
ate who should conduct preliminary hearings. Nor is such a deter-
mination sought here. All that is urged is that some judicial officer
determine probable cause. Florida Statutes, §901.01 (as amended,
6 West Florida Session Laws, 1973 Chap. 73-334) provides that
“each state judicial officer is a... committing magistrate.” That
provides sufficient flexibility to meet any contingency. The cases
cited by the Attorney General are inapposite.
33
have never been ambiguous. They have been clear and
consistent in their insistence that the Florida and Federal
Constitutions are not offended by the use of an informia-
tion in lieu of an impartial determination of probable
cause by a judicial official. State ex rel. Hardy v. Blount,
261 So.2d 172 (Fla. 1972); Widener v. Croft, 184 So.2d
444 (Fla. 1966); Rule 3.131(a), Florida Rules of Criminal
Procedure.
Both the District Court opinion (332 F.Supp. at 1115)
and the Fifth Circuit opinion (483 F.2d at 781-782) paid
careful heed to Younger. Both Courts concluded, cor-
rectly, that the relief sought did not involve interference
with pending or future prosecutions. Fuentes vy. Shevin.
407 U.S. 67, 71, n. 3 (1972). |
If Younger v. Harris were applicable, this case would
fall within its exceptions. The Court in Younger said that
no obstacle exists to an injunction when: (1) great and
immediate irreparable injury is present; (2) Federal con-
stitutional rights cannot be protected in State court and
(3) the threatened constitutional deprivation cannot be
eliminated by a single defense to the State prosecution.
All of those circumstances exist here.
The loss of liberty constitutes great and immediate
irreparable injury. The Florida law forecloses any consti-
tutional challenge, either as a defense or by an equitable
action, to the denial of a preliminary hearing. State ex
rel. Hardy v. Blount, 261 So.2d 172 (Fla. 1972). Thus, the
Younger exceptions are met. Cf Younger v. Harris, 401
U.S. 37, 46 (1971).
In addition to its value in protecting the individual
against unfounded criminal charges, the preliminary hear-
ing serves important governmental interests. It is an
excellent screening device for determining which cases
should or should not remain in the criminal justice
system. Cases with insufficient evidence are promptly dis-
missed permitting trial courts to concentrate on the more
serious matters.
Paulsen and Kadish, Criminal Law and Its Processes
920 Little, Brown & Co. ( 1962) note:
the prohibition era found that in various States from
17 percent to 58 percent of all felony arrests failed
to proceed beyond the preliminary examination
stage. The cases are brought to an end at this early
point by: (1) dismissal for want of prosecution, per-
haps because witnesses failed to appear; (2) dis-
charge for lack of probable cause: (3) filing of a
nolle prosequi.”’
An American Bar Foundation study estimated that the
clearance rate for felonies at the preliminary hearing stage
was eighty percent in Chicago and sixty-five percent in
Brooklyn, New York. McIntyre and Lippman, Pro-
secutors and Early Disposition of Felony Cases, 56
A.B.A.J. 1154, 1156 (1970). In the instant case, Judge
Tanksley, Chief Judge of the Magistrate's Division of the
by twenty to twenty-five percent in Dade County,
rg ro . Pugh v. Rainwater, 483 F.2d 778, 787 (Sth Cir.
).
35
Prompt preliminary hearings also provide an excellent
vehicle for early decisions on bail or release on personal
recognizance. Report on Courts, National Advisory Com-
mission on Criminal Justice Standards and Goals,
Standard 4.5 (1973).
Moreover, the hearings bring the parties together at an
early stage for plea bargaining purposes. Since counsel is
required, Coleman v. Alabama, 399 US. | (1970),
charges may be reduced or otherwise plea bargained at an
early stage of the proceedings, rather than waiting until
trial to achieve the same disposition. See, Katz, Justice is
the Crime: Pre-Trial Delay in Criminal Cases, The Press of
Case Western Reserve University, Cleveland and London.
(1972), pp. 211-212.
Each of these benefits serves the public interest by
promoting an efficient, economical administration of
criminal justice. The public interest is also served, of
course, by the protection which a preliminary hearing
offers for the right to liberty.
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the decision below should be affirmed.
Respectfully submitted,
BRUCE S. ROGOW
733 City National Bank Building
25 West Flagler Street
Miami, Florida 33130
PHILIP A. HUBBART, Public Defender
for the Eleventh Judicial Circuit
Metropolitan Justice Building
1351 N.W. 12 Street
Miami, Florida 33125
36
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a copy of brief for
respondents was served by United States Mail upon
Leonard Mellon, Esquire, Assistant State Attorney, 2070
Main Street, Sarasota, Florida; Joseph Durrant, State
Attorney’s Office, Metropolitan Justice Building, 135]
N.W. 12 Street, Miami, Florida and George R. Georgieff,
BRUCE S. ROGOW
Counsel for Respondents
etnies
APPENDIX
PRELIMINARY HEARING PROVISIONS
OF THE FIFTY STATES
ALABAMA—Code, 1940, Tit. 15, §133
ALASKA-~Cr. R. 5(d)
ARIZONA~17 A.R.S. Rules of Criminal Procedure, Rule 5.1
ARKANSAS-Stat., 1964, Tit. 43, §43-603
CALIFORNIA—Penal Code, 1971, §859b
COLORADO- 1 C.R.S. Rules of Criminal Procedure, Rule 5(c)
CONNECTICUT-C.G.S.A. §54-76a
DELAWARE-13A D.C.A. Rules of Criminal Procedure, Rule 5(c)
FLORIDA—Rules of Criminal Procedure, Rule 3.131
GEORGIA—Code, 1972, Tit. 27, §27-407
HAWAII—Rev. Stat., 1971, Tit. 37, §710-7
IDAHO—Code, 1973, Tit. 19, §19-804
ILLINOIS—S.H.A. Ch. 38, § 109-3 (1963)
INDIANA-—Burn’s Ind. Stat. Ann., 1937, Tit. 9, §§704, 704a
(1949)
IOWA-L.C.A. §761.1 (1939)
KANSAS~K.S.A., Art. 22, §22-2902 (1970)
KENTUCKY ~—7 K.R.S., Rules of Criminal Procedure, Rule 3.04
LOUISIANA—Code of Criminal Procedure, 1966, Tit. 7, Arts. 291,
292
MAINE — Rules of Criminal Procedure, Rule 5(c)
MARYLAND-Code, 1957, Art. 27, $592 (1973)
MASSACHUSETTS—M.G.L.A. Ch. 276, § §37A-42 (1959)
MICHIGAN-M.C.L.A. §766.1
MINNESOTA—M.S.A. § $628.31, 629.50
MISSISSIPPI—Code, 1942, Tit. 99, Ch. 15, §99-15-5
2a
MISSOURI—V.A.MS. §544.250 (1972), Rules of Criminal Pro-
cedure, Rules 23.02, 23.03
MONTANA-—Rev. Code, 1967, Tit. 95, §95-902
NEBRASKA~—Reyv. Stat., 1943, Ch. 29, §29-506
NEVADA~Rev. Stat., 1971, Tit. 14, Ch. 171, §171.196
NEW HAMPSHIRE~ Rev. Stat., 1955, Ch. 596
NEW JERSEY —Rules Governing Criminal Practice, Rule 3:4-3
NEW MEXICO-Stat., 1972, Ch. 41, §41-23-20
NEW YORK-—Code of Criminal Procedure § 180.60 (McKinney
1971)
NORTH CAROLINA-Gen. Stat., Ch. 15, §15-87
NORTH DAKOTA-Century Code, 1943, Tit. 29, § §29-07-11,
29-07-18
OHIO—Rev. Code, Tit. 29, §§2937.10-2937.12 (1960) 2945.71
(1974)
OKLAHOMA—Const. Art. 2, §17, Laws, 1961, Tit. 22, §258
OREGON-—O.R.S. 1963, Tit. 14, § §133.610, 133.810, 133.820
PENNSYLVANIA~Pa. R. Crim. P. 120
RHODE ISLAND—Gen. Laws, 1956 (1969 reenactment), Tit. 12,
§12-10-5
SOUTH CAROLINA—Code, 1962, § §43-231, 43-232
SOUTH DAKOTA-S.D.C.L., 1967, Tit. 23, § §23-27-1 - 23-27-16
TENNESSEE—Code, 1971, 840-1131
TEXAS—Vernon’s Ann. C.C.P. Art. 16.0]
UTAH—U.C.A., 1953, Tit. 77, §77-15-3
VERMONT~-Rule 5, Vermont Rules of Criminal Procedure
VIRGINIA—Code, 1950, Tit. 19, §19.1-101 (1968)
WASHINGTON—Rev. Code, Tit. 10, §§10.16.040 (1952),
10.16.080 (1954)
WEST VIRGINIA—Code, 1965, §62-1-8
WISCONSIN—U.S.A. § $970.03, 971.02 ( 1969)
WYOMING~—Rules of Criminal Procedrue, Rule 7
3a
NOT FINAL UNTIL FEBRUARY 15, 1974, AND IF REHEAR.
ING FILED, UNTIL SAID PETITION IS DETERMINED.
IN THE SUPREME COURT OF FLORIDA
JANUARY TERM, A.D. 1974
IN RE:
RULE 3.131(b), FLORIDA : CASE NO. 44,958
RULES OF CRIMINAL PROCEDURE :
Opinion filed February 4, 1974
A Case of original jurisdiction — Florida Rules of Criminal Pro-
cedure
PER CURIAM.
Under the present Rules of Criminal Procedure, every
defendant charged with a non-capital offense is entitled
to a preliminary hearing within 72 hours if he is in
custody. The purpose of this provision was to speed the
filing of information and thereby require the state
attorney to determine, within 72 hours, whether a
defendant will be prosecuted or should be released.
Before filing an information every state attorney
should not only seek probable cause in his investigation,
but also determine the possibility of proving the case
beyond and to the exclusion of every reasonable doubt.
If the latter cannot be accomplished, no information
should be filed and the defendant should be released. The
rule requiring this determination within 72 hours will re-
sult in the filing of some cases in which the state attorneys
do not have a firm belief as to the integrity of the charge,
or the state attorneys will be required to invoke a com-
plete preliminary hearing system, with all its attendant
costs and burdens upon the judicial system as well as the
people of the state.
i i
4a
The state attorneys have requested that this rule be
amended so that they will be allowed the period of 96
hours within which to complete their inve.‘igation of the
case and determine whether to file an information or
dismiss the charge. If the time is extended to 96 hours,
the number of cases in which no information is filed will
be increased and the number of cases in which a nolle
prosequi of an information is entered will be reduced.
The amendment will prevent charges from being filed
against innocent people in cases where the state objec-
tively could not prove the charges brought by the
investigating law enforcement agency.
In an effort to expedite the dismissal of unwarranted
charges brought against innocent citizens and in an effort
to facilitate the operation of the criminal justice system
with least inconvenience to the citizen, Rule 3.131(b) is
hereby amended so that the same shall read as follows:
RULE 3.131. PRELIMIN * RY HEARING
(b) In all cases where the defendant is in custody,
except capital offenses or offenses punishable by life
imprisonment, the preliminary hearing shall be held
within 96 hours from the time of the defendant’s
first appearance. In all capital offenses and offenses
punishable by life imprisonment, the preliminary
hearing shall be held within seven days of the time
of the defendant’s first appearance. Should the
charges as set forth in paragraph (a) of this rule not
be filed, or the preliminary hearing as set forth in
this paragraph not be held within the time period
herein specified, then the court shall release the
defendant on a personal surety bond, without the
necessity of additional surety Signing thereon,
together with such other conditions as to the court
may seem just and proper under the circumstances.
This rule shall take effect on March 1, 1974.
It is so ordered.
ee
Sa
CARLTON, C.J., ROBERTS, ADKINS, McCAIN and
DEKLE, JJ., Concur
ERVIN, J., Dissents with opinion
BOYD, J., Dissents
ERVIN, J., dissenting:
This postponement by rule for yet another twenty-
four hours (increasing the time to four days) within
which preliminary hearings must be afforded uncharged
accuseds held in custody is yet another retreat from the
modern view that deprivation of an accused’s liberty
should not be unduly prolonged by the slowness of the
prosecutorial machinery. Originally it was provided in the
American Bar Association’s proposed Minimum
Standards for Criminal Justice that the time of such
detention in custody of accused felons for crimes less
than capital and misdemeanants should be only twenty-
four hours.
This further postponement of the time during which
an accused may be held in custody for prosecutorial
investigation—after the arresting officer has made the
arrest--compounds an already undue length of time for
State action. An accused is entitled to an expeditious
determination of whether there is probable cause for
charging him and holding him in further custody.
This modification is but another imposition upon poor
people unable to secure bail upon arrest. It is a relaxive
indication there is to be no incentive for speeding up of
the state procedures for determining whether accuseds
should be further detained. It is contrary to the spirit of
the Constitution for early release of the innocent and the
speedy charging and prosecution of the guilty.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.