# Amicus Brief — Gerstein v. Pugh

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0012%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 103

## Text

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,
in and for Dade County, Florida,

Pet.soner,

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.

On Appeal from the United States Court of Appeals
for the Fifth Circuit

BRIEF FOR THE STATE OF GEORGIA
AS AMICUS CURIAE

ARTHUR K. BOLTON
Attorney General
Please Address all Rosert S. Stunss, II, Executive
: Assistant Attorney General
132 State Judicial Bids’ RICHARD L. CHAMBERS
Assistant Attorney General

Aulanta, Georgia 34 Joun W. Dunsmonre, Jr., Deputy
Phone: 404-656-2976 Assistant Attorney
een

TABLE OF AUTHORITIES

Page
Cases:
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)...... 10
Beck v. Washington, 369 U.S. 541 (1962)........... 4
Coleman v. Alabama, 399 U.S. 1 (1970)........... 4, 6
Coolidge v. New Hampshire,
IES ener ee 3
Dillard v. Bomar, 342 F.2d 789 (6th Cir. 1965)... ... 8

Gerstein v. Pugh, 332 F Supp. 1107 (S.D. Fla. 1971),
336 F.Supp. 490 (S.D. Fla. 1972),
355 F Supp. 1286 (S.D. Fla. 1973),

483 F.2d 778 (5th Cir. 1973).................. 1,2

Goldsby v. United States, 160 U.S. 80 (1895).....4, 10
Government of Virgin Islands v. Bolones,

ihe fi) 7 1. S| ee 9
Grannis v. Ordean, 234 U.S. 385, 395 (1914)........ 10
Hurtado v. California, 110 U.S. 516 (1884). ....... 4,9
Jaben v. United States, 381 U.S. 214 (1965)........ 3
Jackson v. State, 225 Ga. 39 (1969),

cert. denied, 399 U.S. 934 (1970)............... 4
Johnson v. State, 215 Ga. 839,

RS hs nT Fes ht os 8
Lem Woom vy. Oregon, 234 U.S. 91 (1914)........ 4,9
Pugh v. Rainwater, 332 F.Supp. 1107

RASS oy Se eae 9
Rivera v. Government of Virgin Islands,

375 F.2d 988 (3rd Cir. 1967)................... 8
Robertsor. v. Balkcom, 212 Ga. 605,

Se i 7

ii

TABLE OF AUTHORITIFS (Continued)
Page
Sciortino v. , 385 F.2d 132 (2nd Cir. 1967),

cert. denied, 390 U.S. 906 (1968)................
Shadwick v. City of Tampa, 407 U.S. 345 (1972).... 3
Shields v. State, 126 Ga. App. 544,

191 S.E.2d 448 (1972). ..... ddd weteistantdncad 8
U.S. v. Anderson, 481 F.2d 685 (4th Cir. 1973)...... 8
U.S. v. Coley, 441 F.2d 1299 (Sth Cir. 1971),

cert. denied, 404 U.S. 867 (1971)................ 7
U.S. v. Conway, 415 F.2d 158 (3rd Cir. 1969),

cert. denied, 397 U.S. 994 (1970)................ 4
United States v. Eley, 335 F.Supp. 353

eS ans Hd nd Re daabics + vs-cancetien 3
United States v. Farries, 459 F.2d 1057 (3rd Cir.

1972), cert. denied, 409 U.S. 888 (1972)........ 3,7
United States v. Habig, 474 F.2d 55 (10th Cir.

1973), cert. denied, 412 U.S. 941 (1973).......... 4
United States v. Heideman, 2\ F.R.D. 335 (1958),

aff'd 259 F.2d 943, cert. denied, 359 U.S. 959

GePUN ou0u30.deeb ons thal icateenenaeeee ee oo 8
United States Ex Rel. Hughes v. Gault, Marshal,

SFO My CEN TE, vicviceccusterleckdeescs tee: 4
United States v. Myers, 303 F.Supp. 1583

ele MUincckonnchnendiee hy él ook 3
United States v. Rogers, 455 F.2d 407

Gena WINING 405 ru chdces coke coca nkcicens 8
Webb v. Hensley, 209 Ga. 447, 74 S.E.2d 7

Es hea da eteveen schebebedetenelck csc 7
Younger v. Harris, 404 U.S. 37 (1970)............. 9

TABLE OF AUTHORITIES (Continued)

Page
Constitutional Provisions :
TD ry ree 5
Se I PL. oC ol acwawebecccddcece 2
SPD GIES, WIRs ob pc bavccdobcccecccedas 5
es GI PII, Wi nn cc cccccccccccccecccece 5
8 2, 5
om. Comet, Fee, ©, Bm, BOG... oc cc ccccccedcccee 5
Com, Gormee, aot, B Gham, BORD... oc ccccccccececeels 5
Ge. Comet. Act, & Gow. DOGG... ... ccc cc ccccccces 6
Statutes:
Federal Rules of Criminal Procedure, Rule 5....... 7
Federal Rules of Criminal Procedure, Rule 7....... 7
EEN ee aay en 7

Florida Rules of Criminal Procedure, Rule 3.130. .6, 10
Florida Rules of Criminal Procedure, Rule 3.131... .. 2
Florida Rules of Criminal Procedure, Rule 3.191. .6, 10

a ES a 5
ES ee eee ene ane 5
ee 7
Sh PI AIPM, niu vc ccUbccecncdcdeeccen 6
I 6
Ga. Lows 1956, we. 706, TOT. .... 0. cc ccccccccecs 6
ee ae er ee 8

iv

Supreme Court of the United States

OCTOBER TERM, 1973

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.

On Appeal from the United States Court of Appeals
for the Fifth Circuit

BRIEF FOR THE STATE OF GEORGIA
AS AMICUS CURIAE

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 adopt-
ing a plan to implement the original opinion is reported

2

at 336 F.Supp. 490 (S.D. Fla. 1972). The District Court
findings, requested by the Court of Appeals after oral
argument 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).

PRELIMINARY STATEMENT

Comes now the State of Georgia, by and through its
Attorney General, by invitation of this Court, and files
its brief Amicus Curiae in the above-styled cause on
behalf of Petitioner.

Amicus adopts in toto the position taken by Petitioner
in the brief heretofore filed in this Court, and in addi-
tion thereto submits that the cause should be reversed
for the reasons stated hereinafter.

QUESTION PRESENTED

Is there a constitutional requirement that
after a state has arrested an individual that he be taken
before a detached magistrate for a determination of
whether there is probable cause to hold that person
for trial?

ARGUMENT

The United States Court of Appeals as well as the
District Court, held that the Fourth and Fourteenth
Amendments affirmatively require that arrestees held
for trial upon information filed by the Florida State
Attorney must be provided with a preliminary hearing
before a judicial officer without unnecessary delay.
These courts in effect declared Rule 3.131(a), Florida

3

Rules of Criminal Procedure,’ unceastitutional, inas-
much as said Rule dispenses with rreliminary hearings
as to a defendant charged by an information or in-
dictment.

Presented to this Court for consideration on a first
impression basis is the issue of whether or not the
Fourth Amendment and the Due Process Clause of the
Fourteenth Amendment requires a state to assume the
burden of providing some sort of pretrial custodial
meaning of Coolidge v. New Hampshire, 403 U.S. 443
(1971) and Shadwick v. City of Tampa, 407 U.S. 345
(1972), after an individual has been incarcerated in
order to determine whether or not there is probable
cause to continue detaining that individual for trial.
This issue brings into full circle a discussion of all of
the possibilities under which one may or may not be
entitled to a preliminary hearing.

It is well settled that the denial of a preliminary hear-
ing after one has been indicted is not a denial of due
process, inasmuch as the indictment has taken the
place of a preliminary hearing and has furnished a
basis for finding probable cause to detain an individual
for trial.» Jaben v. United States, 381 U.S. 214 (1965);
Unived States v. Myers, 303 F.Supp. 1583 (D.D.C.
1969); United States v. Farries, 459 F.2d 1057 (3rd
Cir. 1972), cert. denied, 409 U.S. 888, 410 U.S. 912
(1973). Further, it has been consistently held that the
purpose of a preliminary hearing is not designed to be
a discovery tool but to determine whether or not prob-

: tate, tf r :
statutory provisions similar to ones available to a eine
* United States v. Eley, 335 F.Supp. 353 (N.D. Ga. 1972).

4

able cause exists." United States v. Habig, 474 F.2d 55
(10th Cir. 1973), cert. denied, 412 U.S. 941 (1972).
United States v. Conway, 415 F.2d 158 (3rd Cir. 1969),
cert. denied, 397 U.S. 994 (1970). It has also been held
that the denial of a preliminary hearing does not deny
one his right to confrontation. Goldsby v. United States,
160 U.S. 80 (1895). In addition, the constitution does
not require a preliminary hearing before removal of an
accused person for trial to a federal court having juris-
diction of the charge. United States Ex Rel. Hughes v.
Gault, Marshal, 271 U.S. 142 (1926). However, in Cole-
man v. Alabama, 399 U.S. 1 (1970) this Court found
that a preliminary hearing in Alabama was a key stage
in their criminal prosecution, and as such an accused
was entitled to be represented by counsel at such a
hearing.

Also, there is no constitutional right to a preliminary
hearing prior to indictment or prior to trial. Goldsby vy.
United States, 160 U.S. 80 (1895). This Court has also
stated that there is no constitutional requirement that
the state must provide a judicial determination as to
probable cause to arrest prior to arresting one on in-
formation. Lem Woom vy. Oregon, 234 US. 91 (1914);
Beck v. Washington, 369 U.S. 541 (1962). Neither is it
constitutionally impermissible to try an individual on
information without seeking an indictment. Hurtado vy.
California, 110 U.S. 516 (1884).

What is being asked of this Court is that they declare
that subsequent to an arrest and incarceration a state
must as a constitutional prerequisite assume a burden
of establishing probable cause to bold an individual for

_— v. State, 225 Ga. 39 (1969); cert. den., 399 U.S. 934
(1970).

5

trial on either an information or otherwise prior to
indictment. One can also assume from Respondent's
position that even if the constitution required that such
a preliminary hearing would be available on request
by an arrestee that this would not satisfy Respondent’s
constitutional contentions. Further, it would seem that
Respondent takes the position that even in cases upon
which one has been arrested pursuant to a warrant, the
issuance of that warrant before an impartial magistrate
does not satisfy the requisite of a probable cause
determination.

To categorically state that under the due process
clause of the Fourteenth Amendment a state must
immediately conduct upon arrest and incarceration of
an individual a probable cause hearing amounts to
judicially amending the Constitution. Clearly, the lack
of such a procedure is not violative of due process in-
asmuch as the United States Constitution provides a
number of other remedies available to an accused de-
signed to prevent any prolonged or oppressive periods
of pretrial confinement. First of all, there is the right
of an accused under the Sixth Amendment to a speedy
trial. Second, an accused may test the pretrial restraint
on his liberty by bringing a writ of habeas corpus as
set forth in Art. I, § 9, United States Constitution.
Third, the right of an accused to obtain pretrial liberty
is protected by the Seventh Amendment which pro-
hibits the use of excessive bail. These constitutional
procedural safeguards which are available to an ac-
cused do not require a further due process require-
ment of the preliminary hearing where an accused is
charged by an information.

In addition to the basic constitutional rights, the
State of Florida has also instituted a number of statu-

6

tory procedural safeguards to prevent there being any
protracted delays in getting an individual to trial. These
provisions are as follows: Florida’s mandatory speedy
trial rule, Rule 3.191, Florida Rules of Criminal Pro-
cedure;* Florida’s first appearance hearing within 24
hours of arrest, Rule 3.130(b) (1), Florida Rules of
Criminal Procedure;* the right to bail under Rule
3.130(b) (4), Florida Rules of Criminal Procedure ;* and
further, Florida has provided an accused with compre-
hensive rules of pretrial discovery. (cit. omitted). The
State of Georgia by statute and constitutional enact-
ment has also instituted certain procedural safeguards
as mentioned in the previous footnotes. In addition to
those mentioned is the right of an individual to file a
writ of habeas corpus.’

The language of this Court in Coleman v. Alabama,
399 U.S. | (1970), seems to further buttress Petitioner’s
position that a preliminary hearing is not constitu-
tionally required of a State. In Coleman, supra, a pre-
liminary hearing was not a required step in an Ala-
bama prosecution, as a prosecutor could directly seek
an indictment by grand jury without having a pre-
liminary hearing. Jd. 8. Further, Justice White in his
concurring opinion lends additional credence to Peti-
tioner’s position when he stated in Coleman, supra,
“Our ruling may also invite eliminating a preiiminary
hearing system entirely.” Jd. at 8.

In passing, the Federal Rules of Criminal Procedure

* Corollary ia provision: Ga. Const. Art. I, Sec. 2-105;
Ga. Code § 27-1901.

*A similar xg statute: Ga. Laws 1956, p. 796, 797; Ga.
Code Ann. § 27-210.

* Ga. Const. Art. 1, Sec. 2-109; Ga. Code Ann. § 27-901.

* Ga. Const. Art. I, Sec. 2-111; Ga. Code Ann. § 50-101.

7

regarding preliminary hearings needs to be commented
upon briefly. Rule 5, Subsection (c) of the Federal
Rules of Criminal Procedure does not require that a
preliminary hearing be held information is filed
against the defendant in a district court under Rule
7(a), Federal Rules of Criminal Procedure. Further,
Title 18, U.S.C. § 3060(e) provides as follows:
“No preliminary examination in compliance with
subsection (a) of this section shall be required to
be accorded an arrested person, nor shall such
arrested person be ~—r. from custody or
from the requirement of bail or any other condi-
tion or release pursuant to subsection (d), if at
~~ —y~ yh: the initial see &
such person before or magistra or
to the date fixed for the imi umienion
pursuant to subsections (b) and (c) and indictment
Is sy ~~ ina te cases, and bp a
tion is against such person in acco
United States.” *

Rule 7, subsection (a) of the Federal Rules of Crim-
inal Procedure, provides for use of either information
or indictment. A similar Georgia statute parallels this
Federal Rule.*

There have been a number of federal circuits which
have construed 18 U.S.C. § 3060 (b) and (c) to mean
that the Constitution does not require preliminary
hearings, and a subsequent conviction without a pre-
liminary hearing will not be vitiated. Sciortino v. Zam-
pano, 385 F.2d 132 (2nd Cir. 1967), cert. denied, 390
U.S. 906 (1968); U.S. v. Farries, 459 F.2d 1057 (3rd

* United States v. Coley, 441 F.2d 1.99 (Sth Cir. 1971), cert.
denied, 404 U.S. 867 (1971).

*Ga. Code Ann. § 27-704; Webb v. Hensley, 209 Ga. 447, 74
mime Robertson v. Balkcom, 212 605, 94 S.B.2d

Cir. 1972), cert. denied, 409 U.S. 888 (1972); U.S. y.
Anderson, 481 F.2d 685 (4th Cir. 1973); U.S. v. Rogers,
455 F.2d 407 (Sth Cir. 1972); U.S. v. Coley, 441 F.2d
1299 (Sth Cir. 1971), cert. denied, 404 U.S. 867 (1971).
See also U.S. v. Heideman, 21 F.R.D. 335 (1958), aff'd
259 F.2d 943, cert. denied, 359 U.S. 959 (1959).

The United States Constitution as adopted did not
contain any guarantee of indictment by grand jury,
but the Fifth Amendment cured this hiatus. This pro-
vision, however, only applies to offenses against the
United States and does not require a State to use an
indictment for violations of state laws. Rivera v. Gov-
ernment of Virgin Islands, 375 F.2d 988 (3rd Cir. 1967).

In a Sixth Circuit decision arising out of Tennessee,
the circuit court upheld a Tennessee statute which
denied an accused a right to a preliminary hearing
when a grand jury was in session, and further stated
that such a provision was not unconstitutional as an
accused has no right to a preliminary hearing before
indictment. Dillard v. Bomar, 342 F.2d 789 (6th Cir.
1965). In a case arising out of the Virgin Islands, Rivera
v. Government of Virgin Islands, 375 F.2d 988 (3rd
Cir. 1967), a Virgin Island statute, 5 V.L.C. § 3581(a)
does away with indictments and provides as follows,
“every felony and every criminal action in the district
court shall be prosecuted by information.”

The Third Circuit decision stated that there was no
constitutional right to a prosecution founded upon a
grand jury indictment, and further found this territorial

Georgia cases similarly holding that there is not constitutional
right to a preliminary hearing are: Johnson y. State, 215 Ga. 839,
114 S.E.2d 35 (1960); Shields v. State, 126 Ga. App. 544, 191 S.E.
2d 448 (1972).

9

Statutory provision to be constitutional. The court in
Rivera also stated that the due process clause did apply
to the Virgin Islands, and that this particular statute
did not infringe upon due process. This circuit court
stated that a preliminary hearing was not required, and
further, that a preliminary hearing is a procedural right
and not a right within the constitutional concept of due
process; and as such can be cut off by the filing of
either an indictment or information. See also, Govern-
ment of Virgin Islands v. Bolones, 427 F.2d 1135 (3rd
Cir. 1970).

Therefore, if a state can either bypass a preliminary
hearing by going directly to an indictment, or as in
Hurtado v. California, 110 U.S. 516 (1884) and Lem
Woom v. Oregon, 234 U.S. 91 (1914), by proceeding
directly by means of an information, there would seem-
ingly be no constitutional mandate that would require
a state to provide an accused with a preliminary hear-
ing. While preliminary hearings are a good idea, they
certainly are not constitutional requirements.

Respondents initially sought a judicial hearing to
determine probable cause for their detention. When
this was denied they took their complaint to the dis-
trict court. Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.
Fla. 1971). Inasmuch as Respondents were dissatisfied
with the Florida criminal procedure, the rule set down
in Younger v. Harris, 404 U.S. 37 (1970), would seem
to be applicable to this situation. Specifically, that the
federal courts will not enjoin a pending state criminal
prosecution except under certain extraordinary circum-
stances where there is the danger of irreparable loss
and great harm. /d. at 43-45. In view of the procedural
safeguards instituted by Florida in addition to those

10

set down in the United States Constitution, there would
seemingly be no irreparable loss to Respondents. Re-
spondents argue that principles of Grannis v. Ordean,
234 U.S. 385, 395 (1914), and Armstrong v. Manzo, 380
U.S. 545, 552 (1965) are applicable, and that a denial
of a preliminary hearing amounts to a denial of their
right to be heard at a meaningful time. This contention
would seem to lack any meaningful significance in view
of Goldsby v. U.S., 160 U.S. 70 (1895), which states
that the denial of a preliminary hearing does not deny
one his right to confrontation and cross-examination.
Further, in view of the fact that Florida provides those
who are arrested with the right to bail" and a right to
a speedy trial*, an accused in that state is afforded
with more than the minimal due process requirements.

" Rule 3.130(b) (4), Florida Rules of Criminal Procedure.
® Rule 3.191, Florida Rules of Criminal Procedure.

ll
CONCLUSION
For these reasons, Amicus respectfully urges this
Court to reverse the holding of the Court of Appeals
for the Fifth Circuit in this case.

Respectfully submitted,

ARTHUR K. BOLTON
Attorney General

Rosert S. Stusss, Il
Executive Assistant
Attorney General

RICHARD L. CHAMBERS
Assistant Attorney General

Joun W. Dunsmore, Jr.

ty Assistant
ttorney General
Please serve:
JoHN W. Dunsmore, Jr.
132 State Judicial
40 Capitol Sq S.W.
Atlanta, ia 30334

(404) 656-297

12

CERTIFICATE OF SERVICE

I, Richard L. Chambers, one of the counsel for
Amicus Curiae, and a member of the Bar of the Supreme
Court of the United States hereby certify that on this
—___. day of August, 1974, I served a copy of the
Brief of Amicus Curiae on

Bruce Rocow, Esquire
733 City National Bank Building

counsel for Respondents, by duly addressed envelope
with adequate postage prepaid.

RICHARD L. CHAMBERS

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0012%3A14. Public record. Not legal advice.