# Appendix — Moeller v. Connecticut > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0248%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 838 ## Text " FILED | 81 *%2.3.6.0.0 sreitas DER L. STEVAS, In THE Supreme Court of the Anited States October Term, 1981 Caries D. Moe.ier, and Lowetz Powst1, Petitioners, vs. State oy Connecticut, Tuomas L. Napgav Kosxorr, Kosxorr & Biever, P.C. 55 Chapel Street Bridgeport, Connecticut 06604 (203) 336-4421 Attorney for Petitioner Moeller Avexanper Hanrinstern, Eso. Joun A. Buregss, Ese. 181 Middle Street Bridgeport, Connecticut 06604 (203) 336-6181 Attorneys for Petitioner Powell ——eaeeeEEEEEEEEOEEE INDEX TO APPENDIX “A”—Opinion of the Supreme Court of Connecticut... 1a “B”—Trial Court’s Memorandum of Decision, Deny- ing Motions to Disqualify cue 10a “CO”._Bench Warrant Affidavit —...000 0... 17a “D”—Excerpt of Transcript, May 5, 1980 33a Appendix A Opinion of the Supreme Court of Connecticut Strats or Connzcricut v. Lowst, Powsi. Strats or Connecticut v. Cuartes D. Mogtizr Sreziae, C. J., Perens, Pansxey, Suea, Covetzo, Js. The appeal by the defendants, charged with the crime of conspiracy to commit arson, from the trial court’s denial of their motions to have the prosecuting state’s attorney disqualified on the ground that he had a personal interest in the outcome of the trial, was dismissed, sua sponte, by this court. The challenged action by the trial court, be- cause it involved a claimed right which could be vindi- cated on an appeal after the trial, was not a final judg- ment and thus was not immediately appealable. The decision in State v. Jones (180 Conn. 443), to the extent it is inconsistent with the conclusion reached herein, is overruled. Argued December 3, 1981—decision released March 30, 1982 Motions by each defendant to disqualify the state’s at- torney of the judicial district of Fairfield and all members of his staff and office, brought to the Superior Court in the judicial district of Fairfield at Bridgeport, where the court, Eielson, J., denied the motions, and the defendants ap- pealed to this court. Appeals dismissed sua sponte. John A. Burgess, of the California bar, with whom, on the brief, was Alexander Harimstein, for the appellant (de- fendant Powell). Thomas L. Nadeau, with whom, on the brief, was The- odore I. Koskoff, for the appellant (defendant Moeller). la 2a Appendiz A—Opimion of the Supreme Court of Connecticut Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state's at- torney, for the appellee (state in each case). Sreziatz, C. J. The defendants in these two cases are charged with conspiracy to commit arson in connection with the March 1, 1975 fire at plant No. 4 of the Grand Sheet Metal Company, known as the Sponge Rubber Factory, in Shelton. The facts concerning the fire itself are discussed in State v. Just, —— Conn. (43 Conn. L.J., No. 7, pp. 19, 19-20) (1981), and United States v. Bubar, 567 F.2d 192, 195-96 (2d Cir. 1976). The arson was the subject of both federal and state in- age So mam pean me aad gg my ultimately were convicted and two were acquitted. See United States v. Bubar, 567 F.2d 192 (2d Cir. 1976). Appendia A—Opinion of the Supreme Court of Connecticut have appealed. At oral argument, however, counsel for Both defendants allege that state’s attorney Browne has eviaonced a personal interest in the outcome of the prosecu- tion aga:ust them. The basis of this alleged personal in- terest is Browne’s status as a defendant in a federal civil rights action brought by Powell.‘ Both defendants conceded at oral argument that the existence of the civil rights action alone would not be sufficient to require Browne’s cation. The basis of their claim is a statement made in court they contend demonstrated Browne’s personal interest.‘ both defendants: (1) changed their claim on appeal and Browne; and (2) further limited this claim to only one now seek only the disqualification of state’s attorney ground for such disqualification.’ by Browne in arguing for an early trial of the case which, iti puss atl i Hie i qi uhtin Appendiz A—Opinion of the Supreme Court of Connecticut The trial court, in denying the defendants’ motions, re- jected this reasoning.‘ Before we can reach the merits of the defendants’ claim, however, it is necessary for us to consider the threshold question of whether the appeal by each of the defendants is from a final judgment.’ This court may hear the defen- dants’ appeals only * che order denying their motions to disquelify is a final judgment. See Practice Book § 3000; Genera! Statutes § 52-263. The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal ap- peals. State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761, F aeatiy: ih i a i pf ball ti] iis i il sqa <2 : vile iu Me Hil al il ane ini i 5a Appendia A—Opinion of the Supreme Court of Connecticut (1938) ; Maltbie, Conn. App. Proc. $10. “Appeal gives the upper court a power of review, not one of intervention.” Cohen +. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). “Adherence to this rule of finality has been particularly stringent in eriminal prosecutions because ‘the delays and disruptions attendant upon intermediate appeal,’ which the rule is de- signed to avoid, ‘are especially inimical to the effective and fair administration of the criminal law.’ DiBella [v. United States, 369 U.S. 121, 126, 82 8. Ct. 654, 7 L. Ed. 2d 614 (1962)].” Abney v. United States, 431 U.S. 651, 657, 97 8. Ct. 2034, 52 L. Ed. 2d 651 (1977). The only Connecticut authority relevant to the finality of the denial of the motion to disqualify holds in effect that such a denial is appealable. In State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980), this court decided on the merits an interlocutory appeal from the denial of a motion to dis- qualify the prosecuting authority. Although the opinion in State v. Jones, supra, was silent on the appealability ques- tion, the decision on the merits and the earlier denial of the state’s motion to dismiss for lack of final judgment both demonstrate that this court considered the denial of the motion to disqualify to be a final judgment. At the time of our decision in State v. Jones, supra, the question of the appealability of the denial of a motion to disqualify, in either the civil or criminal context, was cure- solved and in dispute by federal authorities. See, e.g., Fire- stone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 n.10, 101 8. Ct. 669, 66 L. Ed. 2d 571 (1981) (detailing split in federal circuits). Leading cases decided since State v. Jones, supra, however, have now effectively resolved the question by concluding that the denial of a motion to dis- 6a Appendiz A—Opinion of the Supreme Court of Connecticut qualify is not a final judgment. Firestone Tire & Rubber Co. v. Riajord, supra, 373-79; Armstrong v. McAlpim, 625 F.2d 433, 437-41 (2d Cir. 1980), overruling Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 496 F.2d 800 (2d Cir, 1974).* In view of this recent change, we have reconsidered our position. Generally, if the trial court order or action sought to be appealed “terminates a separate and distinct proceeding, or if the rights of the parties are concluded so that further proceedings cannot affect them, then the judgment is final for purposes of appeal. EZ. J. Hansen Eievator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 [1975]; State v. Roberson, 165 Conn. 73, 83, 327 A.2d 556 [1973].” State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). Cf. Cohen v. Beneficial Industrial Loan Corperation, supra. “In a criminal case, the imposition of sentence is the final judgment of the court. State v. Moore, 158 Conn. 461, 463, 262 A.2d 166 (1969) ; State v. Smith, 149 Conn. 487, 489, 181 A.2d 446 (1962).” State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). Presentence orders or actions by the trial court 7a Appendia A—Opinion of the Supreme Court of Connecticut Thus, an order prior to sentencing in a criminal case is . immediately appealable only if it involves a claimed right - “the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. MacDonald, 435 U.S. 850, 860, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978). We nave held, for example, the denial of a claim that the state’s prosecution places the defendant in double jeopardy to be immediately appealable. State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 8. Ct. 423, 62 L. Ed. 320 (1979). See Abney v. United States, supra. Such a claim involves not just a right not to be twice punished but also, in the appropriate cir- cumstances, the right not even to be tried. Abney v. United States, supra, 660-61. Other interlocutory orders we have held to be immediately appealablu include the claimed right to extend the confidentiality of juvenile proceedings to a criminal proceeding; State v. Anonymous, 173 Conn. 414, 378 A.2d 528 (1977) ; the claimed right to be adjudicated as a youthful offender; State v. Bell, 179 Conn. 98, 425 A.2d 574 (1979); and the claimed right to have nolled charges dismissed on speedy trial grounds. State v. Lloyd, —— Conn. (43 Conn. L.J., No. 5, pp. 10, 12-13) (1981).° Where an interlocutory order involves the denial of a claimed right which may still be vindicated after trial, such a denial is not immediately appealable. Thus, dis- covery orders are not immediately appealable; State v. * The federal courts also have held immediately de- nials of motions to dismiss based on the mem- bers of di Se ston bese clause; Helstoski v Meanor, 442 US. 3 8a Appendia A—Opinion of the Supreme Court of Connecticut Grotton, supra, 293; nor is the claim of a «peedy trial vio- lation. United States v. MacDonald, supra; State v. Lloyd, supra, 12-13. In the present case, the defendants are not claiming a right not to be tried, nor any other right which would be irreparably lost if the trial were to be held.” The defendants are claiming, at most, that they should not be prosecuted by state’s attorney Browne. Even if it is assumed that the trial court’s denial of the motions to dis- qualify was erroneous, any harm caused thereby would clearly be reparable if convictions are obtained. “Should the present appeals be sustained they would serve as precedents which might go forth to nullify the purpose of the Legislature in authorizing an appeal only from a ‘final judgment.’ . . . To permit appeals from rulings upon such motions might seriously delay the final disposition of pending cases. On the one hand, counsel who sincete‘y felt that by an order upon such a motion the rights of his client were seriously harmed might feel compelled to take an immediate appeal; and, on the other 9a Appendiz A—Opinion of the Supreme Court of Connecticut We conclude that the order denying the defendants’ mo- tions to disqualify is not a final judgment and may not be immediately appealed. To the extent State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980), is inconsistent with this conelnsion, it is overruled. The appeals are hereby dismissed sua sponte. In this opinion Parskey, Shea and Covello, ”», con- curred. Perers, J. (concurring). Because I view with the utmost seriousness the questions raised by the statement of the state’s attorney, I want to emphasize that our procedural resolution of these cases in no way signals a retreat from the substantive standards of State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980). The state’s attorney’s responsibility is not limited to avoidance of a possible conflict of interest. As an officer of the court and of the state, he is, I believe, in addition, charged with the duty of avoiding the appear- ance of a conflict of interest. Code of Professional Re- sponsibility, Canon 9. No, 25,131 SUPERIOR COURT Strate or Conngcricut Cuanies MozLize Jupic1maL Disraict or Famrre.p at Brivcerort October 29, 1980 Mzmoraxrpum or Decision On March 1, 1975, the Sponge Rubber Products Company in Shelton, Connecticut, was destroyed by fire, which inves- tigators designated to be caused by arson. Defendant Moel- ler was charged by the State on May 3, 1977 with conspir- acy to commit arson. Defendant Powell was arrested on May 10, 1977 and similarly charged.’ lla Appendia B—Trial Court’s Memorandum of Decision, Denying Motions to Disquelif On February 22, 1980, defendant Powell brought a civil action in federal court against State’s Attorney Donald Browne. The suit alleged violations of Powell’s civil rights under 42 U.S.C. § 1983 arising out of his arrest and pros- ecution in the arson case. The suit seeks $500,000 in mon- etary damages. Defendants now move to disqualify the State’s attorney and his entire staff on the grounds that Browne’s dual sta- tus as prosecutor here and defendant in the civil action creates a conflict of interest which might interfere with the prosecutor’s duty of impartiality and fairness. For the reasons hereinafter set forth, the motion is denied. The question before the court is whether a state’s attor- ney and his staff are disqualified from continuing a pros- ecution because the state’s attorney has been sued by one of the defendants in a civil rights action prior to the start of the criminal trial. Neither of the parties has cited nor has the court’s own research revealed any authority directly on point from Connecticut or any other jurisdiction. Cases dealing with disqualification of prosecutors are legion, and many of these have been amply briefed. Most of this authority, how- ever, has dealt with factual settings which provide little guidance in deciding this motion. Much of the authority deals with the prosecutor who is called upon to prosecute an individual whom he or an asso- ciate previously represented, thus presenting the danger of breaching a confidential relationship. See generally Annot., 31 A.L.R. 3d 953 (1970). No such claim is made in the in- stant case. Another commonly encountered situation has arisen where the prosecuting attorney also represents or bears 12a Appendia B—Trial Court’s Memorandum of Decision, Denying Motions to Disqualify some other close relationship to the victim of the crime being prosecuted. See e.g., Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967); People v. Superior Court of Contra Costa County, 19 Cal. 3d 255, 561 P.2d 1164, 137 Cal. Rptr. 476 (1977); People v. Jimenez, 187 Colo. 97, 528 P.2d 913 (1974) ; State v. Thomason, 353 So.2d 235 (La, 1977) ; State v. Monk, 315 So.2d 727 (La. 1975); Sinclair v. State, 278 Md. 243, 363 A.2d 468 (1976); Commonwealth v. Tabor, 384 N.E.2d 190 (Mass. 1978); Garton v, State, 454 8.W.2d 522 (Mo. 1970); People v. Krstovich, 72 Misc. 2d 90, 338 N.Y.S. 2d 132 (1972); see also Hall v. State, 44 Ala. App. 406, 210 So.2d 852 (1968) ; People v. Battin, 73 Cal. App. 3d 635, —— P.2d ——, —— Cal. Rptr. —— (1978); State v. Melerine, 236 La. 881, 109 So.2d 454 (1959); State v. Bos- worth, 124 Vt. 3, 197 A.2d 477 (1963); Commonwealth v. Dunlap, 233 Pa. Super. 38, 335 A.2d 364 (Super. Ct. 1975) ; aff'd by an evenly divided court, 474 Pa. 155, 377 A.2d 975 (1977). Results in all of these cases have varied depending upon the precise facts. Although these cases are perhaps closer in terms of the ethical issues raised, these cases, too, differ from the instant one in that the defendant is not pre- sented with the opportunity to manipulate the prosecutor’s handling of the case by the mere expediency of bringing a lawsuit. What emerges from the authority is that the decision to disqualify rests in the discretion of the trial court, guided by the facts and circumstances with which it is presented and the ethical duties imposed upon the bar generally, see Code of Professional Responsibility,? Practice Book 1-52 (1978), Canon 5, Ethical Consideration 5-1, 5-2, Disciplin- * The ABA Code has been adopted by the judges of the Court. State v. Jones, 41 Conn. L.J., No. 45, 5 (May 6, 1 ‘ 13a Appendia B—Trial Court’s Memorandum of Decision, Denying Motions to Disqualify ary Rule 5-10(A); Canon 9; and on the prosecution specif- ically, see id., Ethical Consideration 7-13; 8-8; American Bar Association Project on Minimum Standards for Crim- inal Justice, Standards Relating to the Prosecution Func- tion and the Defense Function, The Prosecution Function $1.2 (Approved Draft 1971). In deny.ng this motion, the court is influenced by three factors. First, in State v. Tyler, 587 S.W.2d 918 (Mo, 1979), the Supreme Court of Missouri was faced with a very sim- ilar factual situation. In that case the defendant sought to disqualify the prosecution on the grounds of bias and prej- udice arising out of the defendant’s civil rights action against the prosecutor. In upholding the trial court’s de- nial of the motion, the Supreme Court stated: “It was not shown that any of the litigation initiated by the defendant would be affected by the outcome of the instant case. While it is generally true that the prosecutor’s personal animus against a defendant dis- qualifies him from prosecuting . . . there is no such hostility shown on the part of the prosecutor Harper. In the case now before us the defendant could paralyze the prosecution if he could secure the disqualification of prosecutors and other law enforcement officials by the simple expedient of filing of lawsuit against them.” Id. at 930.2 Cf. State v. Lucas, 123 Ariz. 39, 597 P.2d 192 (1979) (county attorney’s office not disqualified from the prosecution by its representation of the County Board of Supervisors in civil rights action filed by defendant against *To a degree, the facts of Tyler are distinguishable from the but the considerations nevertheless a expressed léa Appendia B—Trial Court’s Memorandum of Decision, Denymg Motions to Disqualify occurred in March of 1975. The federal prosecution was in of 1976. The state prosecution in May of 1977. The civil suit was not com- menced until February of 1980, merely four days, accord- Third, the defendants place much weight on a single 15a Appendia B—Trial Court’s Memorandum of Decision, Denying Motions to Disqualify ing on the disposition of the civil case which has been pending against me. I’ve been sued for a half a mil- lion dollars and I think it’s a matter, if your Honor please, that I’m entitled to an expeditious disposition of that particular case. I don’t want to go on the and but I think that as far as I'm concerned, this is cations and teaching at seminars and things of that nature. I think it’s more important for me to get tion. I put that to your Honor’s consideration.” When I read in context, the prosecutor’s statements indi- cate that the above is but one of many arguments raised for expediting the criminal trial. As Browne indicated at the same hearing, the prosecution was equally concerned 16a Appenaia B—Trial Court’s Memorandum of Decision, Denying Motions to Disqualify mous, 36 Conn. Supp. 338, 340, 42 Conn. L. J. 16, 2 (October 14, 1980). All of the foregoing applies equally to defendants Powell and Moeller, both of whom pursue this motion. With re- spect to defendant Moeller however a final and more obvi- ous reason exists for denying this motion. Moeller is not a party to the civil action and thus no real or apparent conflict has been created thereby. The motion is denied. Eielson, J. Filed October 30, 1980. 17e Appendix C Bench Warrant Affidavit Stats or Con weEcrTicut ) ) ss Fairfield, May 19, 1977 County oF ) Then and there by virtue of the annexed warrant I ar- rested the body of the. above-named accused, read said warrant in his hearing—or acquainted him with the sub- stance thereof—and have presented him before proper authority. Sgt. N. Valerio State Policeman Sra Cor NEOCTICUT baa ss Fairfield, May 3, 1977 Arrwavir or Sexoraxt Nicnotas VALERI0 That the affiant is a regular member of the Connecticut State Police Department and has been for the past seven- teen years. At the present time he is assigned to the Detec- tive Division and in that capacity has actively participated in the investigation of an explosion and fire which occurred on the evening of March 1, 1975 at a location known as the Sponge Rubber Products Company in Shelton, Connecticut and has continually read and reviewed official reports of both the Connecticut State Police Department and Federal Bureau of Investigation concerning the cause and identity of individuals believed to have been involved in that inci- dent. That the aforementioned investigation by the Connecticut State Police and the Federal Bureau of Investigation has 18a Appendia C—Bench Warrant Affidavit established that on March 1, 1975, the Sponge Rubber Prod- ucts Company, Canal Street, Shelton, Connecticut, a divi- sion of Grand Sheet Metal, Inc., Spencerville, Ohio, was engulfed by flames after an explosion and fire. Said explo- sion and fire began at approximately 11:30 P.M. and burned into the early morning hours of March 2, 1975, com- pletely destroying the Plant #4 portion of said company. That said explosion and fire was reported to the affiant and other investigators by State Police Fire Investigator Ser- geant Frederick Moffett and other witnesses who heard the aforementioned explosion. That during the normal course of this investigation, members of the Connecticut State Police Department have reported to said affiant regarding information received in said investigation and have re- ported the information contained herein and the affiant has also personally consulted with and reviewed reports of members of the Federal Bureau of Investigation concerning such incidents. That on March 1, 1975, prior to the fire, at approximately 10:00 P.M., two security guards and a boilerman, the only three employees at Plant #4 of the Sponge Rubber Prod- ucts Company, at that time, were kidnapped at gunpoint by three men wearing over-the-head ski masks. Handcuffs were placed on their wrists and their eyes were taped. They were led from the building at approximately 10:45 P.M., after having been held at said plant in the bound condition for aprroximately 45 minutes, placed in the rear seat of one of the guard’s vehicles and driven to the Town of Monroe, Connecticut. The victims were left in the car after the per- petrators removed the handcuffs from their wrists and bound them with adhesive tape. The above information was obtained from the three victims on March 2, 1975. 19a Appendia C—Bench Warrant Affidavit That on March 6, 1975, Sergeant Frederick Moffett, of the State Police Public Safety Division, was interviewed by Sergeant Robert Geoghan of the Connecticut State Po- lice Department at Plant #4. Sergeant Moffett pointed out an indentation burned into the concrete of the first floor, leading past the entrance to tlie ladies room and to a point in the press room where there was a crater in the floor caused by an explosion. Sergeant Moffett stated that the burned indentation was caused in his opinion, by detonating cord, used as an accelerant to detonate explosives. Ser- geant Moffett further stated that he determined this by an alligator pattern left as the trail of the indentation across a piece of steel. That on March 7, 1975, Sergeant Robert O’Shaughnessy of the Connecticut State Police Emergency Services Divi- sion, reported that after clearing debris at the burned out plant he found a trail left by the detonating cord indicating that at least 5000 feet of detonating cord was used. Ser- geant O’Shaughnessy further stated that the remains of four paper fiber drums were found in the debris and said drums had plastic linings inside. That a strong odor of gasoline or paint thinner was detected at said fiber drums. That the drums bore the markings of the Kodak Film Com- pany indicating that they did not belong in the plant. That the fiber drum remains were examined at the FBI Labora- tory in Washington, D.C., where gasoline traces were found in the plastic lining remains of said drums. During the course of this investigation it was learned that a person by the name of David Nobel Bubar, of New York City and Memphis, Tenn., was a personal friend of Charles Moeller, President of the Sponge Rubber Products Company and the parent Grand Sheet Metal, Inc. Also at 20a Appendia C—Bench Warrant Affidavit one time David Bubar served on the board of directors for the Grand Sheet Metal, Inc. That during the latter part of October, 1976, and the middle of November, 1976, interviews were conducted of David Bubar by the affiant and members of the Federal Bureau of Investigation. All of the following information pertaining to what was said by David Bubar was obtained from him during the above times. Bubar stated during these interviews that during the month of December, 1974, he was contacted by Charles Moeller of Spencerville, Ohio, whom he had not spoken to in several months. Bubar stated that several conversations took place at the Sponge Rubber Plant in Shelton, Connec- ticut, during this month and the month of January, 1975, between he, Charles Moeller, and Lowell Powell, of Lima, Ohio, who is Secretary-Treasurer of Ohio Decorative tions, Bubar learned that Sponge Rubber was in financial difficulty and that Moeller wanted the plant destroyed by and wanted to know if Bubar knew anyone who could do it. Bubar stated to Moeller that he didn’t know anyone personally but might be able to find someone for him. Bubar stated that as a result of this request by Moeller, to have someone destroy the plant, he contacted an individ- ual named Michael Festa, a friend for many years, who resided at that time in Hudson, Ohio. Bubar said that he told Festa that Charles Moeller, whom Festa knew, was in financial difficulty and asked if Festa knew anyone who could destroy the plant to which Festa said he might be able to help him after checking on it. After numerous con- versations with Festa in regard to the matter, Festa told | 2la Appendiz C—Bench Warrant Affidavit him (Bubar) that he believed he had someone who could help him but it would cost some money. Bubar said that he was subsequently contacted by Michael Festa who told him that he made arrangements for Bubar to meet some people at the Pittsburgh Airport on February 2, 1975. Bubar stated he recalls contacting Charles Moeller and Lowell Powell during the last week of January, 1975, and telling both men that he needed $10,000. to get the plant destroyed. Powell indicated that they did not have the money in Shelton and that he didn’t know where he was going to get it. Bubar stated that fur- ther conversation was had with Lowell Powell and Charles Moeller about the money needed to finance the destruction of the plant and it was finally agreed that Powell and Moeller would secure the funds and Moeller stated that they did not have the money in Shelton and he would have to go out of town to get it. Bubar advised Charles Moeller that he needed the money prior to February 2, 1975 be- cause of his arrangement to meet some people in Pitts- burgh on that date in connection with the matter. That on June 9, 1975, Lowell Powell made available to members of the FBI, checks for account #097162 drawn on the Exchange National Bank of Chicago, Chicago, Illi- nois. This account was specifically the business account for Ohio Decorative Products, Inc., 220 South Blizabeth Street, Spencerville, Ohio. A review of these checks dis- closed that check #5926, dated January 30, 1975, payable to Metropolitan Bank for the amount of $10,000. and signed by Lowell Powell as maker. This check was endorsed Ohio Decorative Products, name illegible, Metropolitan Bank of Lima, Ohio. An investigation at the Lima Bank in- dicated that the above mentioned check was cashed at the bank on January 30, 1975 by Charles Moeller. Appendiaz C—Bench Warrant Affidavit Bubar stated that on January 30, 1975, he was in con- tact with Charles Moeller by phone and Moeller advised that he had ten green pillows which would be delivered to him at the McAlpine Hotel in New York, where Bubar was residing, the following day by Lowell Powell. Bubar indicated that the term “green pillows” was agreed upon by the same parties as the code for the words money or dollars. Bubar further stated that sometime in January, 1975, after it was agreed upon to destroy the plant, he recalled a conversation that hr ad with Charles Moeller at which time Lowell Powell was present and it was agreed that in connection with their planning to destroy the plant they would use as a subterfuge the water treat- ment process, of which Bubar had spoken to Moeller prior to that date. It was further agreed that in order to make the necessary payments to people to destroy the plant, they would use company checks payable to Southern Supply, Bubar’s Company, and allege that the checks were for the water treatment process. Bubar said that the Southern Supply Company was his personal company and did not do any work for any of Charles Moeller’s companies and that Southern Supply never before had received any checks from any of Moeller’s companies. Bubar stated the following cash payment from Charles Moeller was the only cash payment made with the other payments being made by check. Bubar said that on January 31, 1975, while at the Mc- Alpine Hotel, Lowell Powell arrived at his apartment with some pillows and he and Powell went into his bedroom where Powell removed a shoe box from among the pillows and handed it to Bubar. Bubar stated that the box con- tained $10,000. cash money. Bubar said that a friend of his named Cayse Wilson was present in his apartment 23a Appendix C—Bench Warrant Affidavit when Lowell Powell appeared with the pillows. Bubar said that he placed the money in his safe deposit box, #27, at the McAlpine. On March 10, 1975, members of the FBI interviewed Cayse Wilson at his office in Atlanta, Georgia, and he stated that he was in David Bubar’s apartment in the latter part of January and the early part of February, 1975, and that during that time an unidentified male came to the apartment with some pillows and this man and Bubar went into the bedroom where they remained until he, Wilson, left. William Povalaitis, of Derby, Connecticut, a driver for Sponge Rubber Products, stated that he recalls bringing Lowell Powell to the McAlpine Hotel from the plant in Shelton sometime during the early part of 1975. Povalaitis said that several pillows were taken from the plant with them to the McAlpine Hotel where they were left. He said that after bringing Powell and the pillows to the McAlpine Hotel, he brought Powell to Tweed New Haven Airport. That a check of the flight records of John Gardner, 135 Sereff Drive, Lima, Ohio, pilot for Ohio Decorative Prod- ucts, revealed that on January 31, 1975, he flew from Allen County, Ohio; to New Haven, Connecticut, and returned to Allen County with a passenger, Lowell Powell. Bubar said that after the delivery of the $10,000. on January 31, 1975, he telephoned Michael Festa and made arrangements to meet Festa at the Pittsburgh Airport about 6:00 P.M. on February 2, 1975. Bubar said he flew to Pittsburgh, Penn. on February 2, 1975, where he met Michael Festa, a person identified as Jack Mazza and an- other person who was later identified as Jack Mazza’s brother. Bubar said that he removed $5,000. cash from his safety deposit box before he left New York and took it 24a Appendia C—Bench Warrant Affidavit with him to Pittsburgh. Bubar said that while at the Pitts- burgh Airport he, Festa, and the two Mazzas went into a restaurant and while there he and Festa went into a mens room and he gave Festa two envelopes each with $2,500. in it. He said that he suggested to Festa that he hold onto one of the envelopes and give the other to the person he had to deliver it to. Bubar said that he later saw Festa give one of the envelopes to Jack Mazza. Just prior to leaving the restaurant Jack Mazza told Bubar that some- one would be in touch with him in New York. Flight verifications by members of the FBI showed that David Bubar took a flight from New York, via Allegheny Airlines, on February 2, 1975, to Pittsburgh, Penn., and returned to New York on the same date. Bubar said that subsequent to this meeting in Pitts- burgh, he contacted Charles Moeller and told him what had transpired between himself, the Mazzas and Festa. Bubar said that during the conversation with Moeller, Moeller said that the plant had to be destroyed as soon as possible as he was in bad financial condition. Bubar said that during the latter part of the week of February 2nd to 8th, he received a phone call from a man who identified himself as Mike Jamisor. Jamison indicated that he would be coming to New York in the afternoon and that Bubar should meet him at the airport. Jamison gave a description of himself to Bubar and Bubar did the same to Jamison. Bubar said that he made arrangements for the company driver to pick he and Jamison up at the air- port. Bubar said that he did meet Jamison, whom he later identified as Peter Betres (who resided in Butler, Penn.), and they were brought to the Shelton Plant of Sponge Rubber in a company car driven by a company employee. Bubar said that the reason for the trip was for Betres to 25a Appendix C—Bench Warrant Affidavit look over the plant. Bubar said that while at the plant he told Betres that the owner wanted to make sure the smoke stack and power plant were left undamaged and all he wanted was one building destroyed. Bubar said that the owner didn’t want anyone hurt in the destruction of the plant. Bubar said that he and Betres were then brought to New York where he was taken to the McAlpine Hotel and he told the company driver to take Betres wherever he wanted to go. William Povalaitis said that he did pick up Bubar and another person at Allegheny Terminal at LaGuardia Air- port in New York on one occasion and he fixed the time as about 3:30 P.M. He said that he drove the two men from the airport to the Sponge Rubber Plant arriving there at about 5:00 P.M. and both Bubar and the other person went into the factory and stayed there for two and one half to three hours. Povalaitis said he then drove Bubar and this other man to New York and left Bubar at the McAlpine Hotel, and then was instructed to take the other unidentified person to wherever he wanted to go. Povalaitis said that this person wanted to be taken to Long Island via the Long Island Expressway. Povalaitis said that while on the Expressway he was instructed to stop at a pay phone where the passenger made a brief phone call and then instructed Povalaitis to take him to Exit 50. Povalaitis said that he complied and dropped this person off at a gas station and returned alone to Connecticut. Povalaitis later identified this unknown per- son as Peter Betres. 26a Appendix C—Bench Warrant Affidavit told him that the man wanted $20,000. Moeller told him that it would be tough to get the money but he would get a check and deliver it to him on February 10, 1975. Bubar also said that on February 10, 1975, a Monday, he went to LaGuardia Airport sometime in the morning and met Charles Moeller and recalled Moeller giving him an Ohio Decorative check in the amount of $20,000. payable to Southern Supply. Bubar stated that he deposited the check into the Southern Supply account and withdrew $10,000. by writing out a check for this amount. A review of account #097162 of Ohio Decorative Prod- ucts revealed that check number 6031, dated February 10, 1975, was made payable to Southern Supply for the amount of $20,000. This check was deposited to account #007- 047029, The Chemical Bank, New York Trust Company, New York. A review of this bank statement for Southern Supply by members of the Federal Bureau of Investiga- tion revealed that on February 10, 1975 a deposit of $20,000. was made. It further indicates that on February 11, 1975 check number 201 was written out “Cash David Bubar” and endorsed David Bubar. This check was for the amount of $10,000. Bubar further reported that on February 11, 1975 he was with Peter Betres at an airport in New York and while at the airport they ate at a restaurant and he went into the mens room with Betres and at that time he gave Betres $10,000. cash and Betres said that he needed more money. Bubar said that he then wrote out two $3,000. checks and gave them to Betres. The checks were drawn on Southern Supply with payee left blank on request of Betres. A further review of the Southern Supply account re- vealed check number 200 for the amount of $3,000. from David N. Bubar to Peter Betres. This check was endorsed Appendix C—Bench Warrant Affidavit by Peter Betres and a stamp showed it was cleared by the Chemical Bank on February 12, 1975. The records also show that check number 201 in the amount of $3,000. written by David Bubar to Peter Betres and was endorsed by Peter Betres. A stamp on the check showed that it was cleared by the Chemical Bank on February 14, 1975. Bubar further stated to investigating officials that after the visit to the plant by Betres other visits were made to the Sponge Rubber Plant by people other than Betres who were involved in the destruction. These took place during the month of February, 1975. Bubar said that on Friday, February 28, 1975, he went to the Sponge Rubber Plant in Shelton with Peter Betres. Bubar said he initially left Betres at a Howard Johnson Restaurant in Derby, Connecticut, and went to the plant with Lowell Powell, where he received a check for $15,000. which was to be used for a payment for the destruction of the plant. Bubar further stated that on the 28th while at the plant he called Charles Moeller at Horse Cave, Kentucky and informed him that the plant was going to be destroyed the following day. Bubar said that he also told Moeller that he had given the man up to that time a total of $30,000. and that the man wanted an additional $30,000. Moeller told Bubar that he didn’t have $30,000. but would give him $15,000. that date and to tell the man he would give an additional $15,000. after the plant was destroyed. After this conversation with Bubar, Moeller asked to speak to Lowell Powell and Bubar said that Powell got on the phone. Bubar said that Powell was present during the entire conversation he had with Moeller. Bubar said that after Powell finished talking to Moeller he and Bubar went into another office where Powell told him that he would write out a check for $15,000. but would need an invoice and it was agreed that Bubar would type 28a Appendia C—Bench Warrant Affidavit an invoice for $15,000. and list the purpose for the pay- ment as “Water Treatment”. Bubar said that he went to the office of Jeanette Kordiak and typed out an invoice for $15,000. and gave it to Lowell Powell who in turn gave him a check for $15,000. drawn on the Sponge Rubber Company made payable to Southern Supply. Jeanette Kordiak, Moeller’s Secretary, stated that on Friday, February 28, 1975 she saw Bubar and Powell at the plant at 1:00 P.M. at which time they entered Moeller’s office and closed the door. She said that in about fifteen to thirty minutes Bubar came out of the office and wanted to use her typewriter. She said that she offered to type that the check was to pay for work on the water purification system. Fiore said that the check was issued. Bubar said that he went to New York during the after- noon of February 28, 1975, and cashed the check, then re- turned to Connecticut where he picked up Betres near the Howard Johnson Restaurant in Derby and they went to the Sponge Rubber Plant. Bubar stated that on Saturday, March 1, 1975, he brought three men into the Sponge Rubber Plant who were to set the explosives within the plant. Bubar said that he also plosives men, he left Shelton and went to New York. Bubar said that he drove the company car to LaGuardia Airport in New York where he made a phone call to the residence of Michael Festa and learned he was not at home. Bubar stated that during the course of the arrangements to have the plant destroyed at Shelton, Connecticut, he made numerous phone calls to Peter Betres, Mike Festa and others, and charged these calls to the Custom Beverage account in Ohio. John Shaw of Harrisburg, Pennsylvania, in a confession to members of the Federal Bureau of Investigation, and the Connecticut State Police Department, stated that he par- telephone survey. Shaw also said that because of the in- : | : Fs ; ; : F i F : 7 BF et : EF : i 1 it F i 3la Appendiz C—Bench Warrant Affidavit On March 12, 1975, Michael R. Festa of Hudson, Ohio, who is president of Custom Beverage, was interviewed by members of the FBI and at that time he admitted that he met Charles Moeller through David Bubar and he met with Moeller in order to interest him in investing a sum of money into Custom Beverage. Festa said on March 2, 1975, he was at his other apart- ment in New York and at about 3:00 P.M. David Bubar ap- peared at the apartment. Festa said that Bubar stayed there for about three hours. Festa said that Bubar made only a passing comment regarding an explosion and fire which took place the night before at the Sponge Rubber Plant. Festa said that Bubar made no mention of the fact that he had been at Sponge Rubber on March 1, 1975, and made no mention of the fact that he was conducting a water treatment survey. On December 15, 1975, Michael Festa testified under oath in Federa] District Court, New Haven, Connecticut, during the trial of several people accused of Federal Violations in this same bombing of the Sponge Rubber Plant. Mr. Festa on that date was asked “Did you, during the month of Feb- ruary of 1975, have occasion to go to Pittsburgh?” to which Festa answered, “No.” He was then asked, “You're cer- tain?” to which he replied, “I might have. What date did you say?” to which he was told, “During the month of Feb- ruary of 1975.” Festa then answered, “I am not sure.” He was then asked, “You're not sure you went, and you're not sure you didn’t go?” to which Festa answered, “That is right.” Festa was later asked, “Do you recall calling Reverend Bubar on February 1, 1975, from your home to the Emer- gency Spiritualism Society at New York City, which is at the McAlpine Hotel?” Festa replied: “It’s quite possible. 32a Appendia C—Bench Warrant Affidavit I am not sure.” He was further asked, “Do you recall ar- ranging with him to meet him in Pittsburgh on February 2, 19757” Festa answered, “No way.” That on March 16, 1977 Michael Festa was again inter- viewed by agents of the Federal Bureau of Investigation in Sarasota, Florida and at that time Michael Festa did admit that he had in fact met with David Bubar at the Pitts- burgh Airport on February 2, 1975 and that he had in fact received the sum of $2,000 cash money from David Bubar on that occasion, but that that payment was actually a par- tial payment on a pre-existing $14,000 debt owed to him by David Bubar. Festa further admitted that John Mazza and Frank Mazza were present at the Pittsburgh Airport at said time. That an examination of long distance telephone call toll charges charged to the account of Michael Festa personally or his telephone credit card or his business known as Cus- tom Beverage reflect long distance toll cails to the residence of David Bubar in New York, on January 30, 1975, January —— Le ee Farther, an examination of the long distance telephone call toll charges charged to the account of Michael Festa or his credit card or his business reflect long distance toll calls to the telephone number of John Mazza in Pitts- (e-6pe asa te ream ase rele Sznczant NicHoias VALerio Subscribed and sworn to before me this 3rd day of May, 1977. Notary Public Appendix D Excerpt of Transcript, May 5, 1980 SUPERIOR COURT Faterietp County at BrivcEport May 5, 1980 No. 25, 131 Micuag. Festa Before: Howonastz Roserr J. CatLanan, Judge 34a Appendix D—Excerpt of Transcript, May 5, 1980 APPEARANCES: For the State: Donald A. Browne, Esq. Chief State’s Attorney 1061 Main Street Bridgeport, Connecticut For the Defendant Moeller: Koskoff, Koskoff & Bieder, Esqs. 1241 Main Street Bridgeport, Connecticut By: Theodore I. Koskoff, Esq. For the Defendant Festa: Zeldes, Needle & Cooper, Esqs. 333 State Street Bridgeport, Connecticut By: Jacob D. Zeldes, Esq. Roberta Olson Court Reporter Mr. Browne: If your Honor please, assigned for a hear- ing this morning is a motion for a continuance in the mat- ter of docket number 25,131 entitled Charles Moeller. I should indicate to your Honor I was handed this morn- ing by Attorney Zeldes a motion in a similar matter that’s 25,129, Michael Festa. It is a motion entitled Motion By Defendant Festa For Continuance and Mr. Zeldes is here this morning. I should also indicate to your Honor that it’s been called ty my attention that in mv mail, my personal mail delivered to my office this morning, I received a motion in a com- 35a Appendix D—Excerpt of Transcript, May 5, 1980 panion matter of docket number 25,130, State of Connec- ticut vs. Lowell Powell. This is entitled Defendant’s Mo- tion For Continuance. This has been signed by John A. Burgess, Esquire, of the State of Vermont who has been granted permission to represent Mr. Powell in this matter. It occurs to me initially that these matters probably should all be heard at the same time. Mr. Burgess has now filed this motion on behalf of Mr. Powell. Mr. Burgess is, obviously, not here this morning, so that I think that what- ever, I assume we ought to get this down some day where Mr. Burgess can come in and argue his motion as well. Mr. Koskoff: I talked to Mr. Burgess this morning. He is on trial in Vermont. He said to me that he would stand on the papers submitted. I believe your Honor has a copy of it. It’s a motion to which he says he couldn’t add any- thing to the motion. The Court: Well, what papers has he submitted? Mr. Koskoff: The same kind of motion. Do you have a copy in your file? The Court: What’s that you have there? Mr. Browne: I have a copy of a motion entitled The Defendant’s Motion For A Continuance, the original of which I am working on the assumption that was filed by the clerk. The Clerk: Yes. The Court: You indicate to me, Mr. Koskoff, that you’ve talked to Mr. Burgess and that he wil’ stand on his motion dated April 30th wherein he asks for a date of August ist; is that right? Mr. Koskoff: Yes, your Honor. The Court: All right. Mr. Koskoff: We also have filed similar motiuns, all three codefendants. 36a Appendix D—Ezcerpt of Transcript, May 5, 1980 The Court: All right. I will proceed with the motion today on the representation by Mr. Koskoff as an officer of the court. It has been scheduled for June 17th. I ask you gentlemen, what do you have in mind? Mr. Koskoff: Your Honor, our motion and Mr. Bur- gess’s motion calls for August 4th for the reasons stated in both his motion and mine. The Court: Mr. Zeldes, it would be too much to expect that you would ask for August 4th, too; right? Mr. Zeldes: Yes, your Honor, and if I may just give a little bit of a history of the background, I'll try to explain why I think that’s inappropriate. Apparently, there are three defendants charged with con- spiracy in this matter. The State has never made a motion to consolidate the cases to my knowledge. At a time when I was not present, as our papers say, there were discus- sions with Mr. Burgess and Mr. Koskoff and Mr. Browne and I gather, your Honor, the June 17th ruling was made which people seem to assume also applied to the Festa case, although we had no knowledge. I’m not absolutely certain if the same type of amendments to the information were filed in that case at the same time they were in ours, but at any rate, it was not until March 19th that the State filed their amended information. We will file very shortly our motions directed to the amended information in compliance As for the reasons I object to the August 4th date, your Honor, I’ve set those out in the moving papers and I think I should perhaps also say that August is generally the date that is associated with summer plans and things and courts are usually working at a less than full head of steam during that period of time. It seems to me that after Labor Day when we get back into the regular business of the courts, it 37a Appendix D—Excerpt of Transcript, May 5, 1980 would be more appropriate to have the case scheduled at that time. I don’t know what Mr. Browne’s reasons are. He did indicate to me the other day he was going to present them on the record today for thinking that the June 17th date or even the August date is a significant time to start, but it just seems to me from everything that I have re- counted including everything that’s in our moving papers, that September 2nd, the day after Labor Day when the courts open in the fall would be an appropriate time to commence the case. Everyone would then have time to get their dockets lined up and we could proceed at that time. The Court: Of course, August 4th, you have a vacation problem. Mr. Koskoff, how do you fee] about September 2nd? Mr. Koskoff: As long as it’s beyond August 4th or later. I don’t think a matter of a couple of weeks makes that much difference. We would agree to September 2nd. The Court: How about Mr. Burgess? Mr. Koskoff: He would agree. The Court: That’s no problem as far as he’s concerned? Mr. Koskoff: No. I’ve discussed that with him, too. The Court: All right. Now, Mr. Browne, let me hear you. Mr. Browne: I want to be heard as being vigorously opposed to September 2nd. The Court: I assumed you would. Mr. Browne: In fact, I would like the record to show I am as vigorously opposed to June 18th. Your Honor has heard lengthy arguments and your Honor has decided on June 17th. ; For the purpose of this motion I would like to cite some dates in connection with Mr. Moeller’s motion for continu- ance which is the motion that was assigned for a hearing this morning. 38a Appendiz D—Excerpt of Transcript, May 5, 1980 Your Honor will note from the court file, and [’'m sure your Honor has that court file in front of you, that Mr. Moeller entered a plea of not guilty on April 14th of 1977 or some three years and a month ago. On May 25th of 1977, Mr. Moeller filed a motion to dismiss the proceeding on an allegation of a claim of double jeopardy. On July 7th of 1977, counsel filed a memorandum in support of his motion to dismiss. On August 24th of 1977, the State filed a memorandum in opposition to his motion to dis- miss. On December 2ist of 1977, the judge denied his motion to dismiss with a written memorandum. On June 6th of 1978, an appeal was filed with the Connecti ut Supreme Court relative to the tria] court’s denial of the motion to dismiss. On June 19th of 1979, the Connecticut Supreme Court released a decision affirming the decision $F SO Ss Snare eee Sane me eee Oo dismiss. On September 14th of 1979, Mr. Moeller’s coun sel filed an application tr anatiiien Soe enbtaieds with the United States Supreme Court for a review of the deci- sion of the Connecticut Supreme Court and on November 13th of 1979, the application for certiorari was denied by the Connecticut Supreme Court. So, this case has been pending initially over three years waiting for a trial and the delay of the case from being tried, obviously, has been a result of counsel exercising then applying to the United States Supreme Court. The State is put in a very precarious position because of the long delay in that it’s becoming more and more difficult for us to get our witnesses together. Already I can indicate to your Honor at least one individual would be testifying as a witness for the State in the interim and the longer this is delayed, 39a Appendix D—Excerpt of Transcript, May 5, 1980 difficult it is going to be for the State to accumulate its witnesses and the more difficult it’s going to be on those witnesses to recollect fairly and accurately incidents which have occurred now probably over five years ago. The al- leged incident occurred, I can inform your Honor, back in the beginning of 1975. So, it’s been over five years since this alleged incident. It makes it al] the more difficult for the State to have witnesses who are able to come in here and testify with a good recollection of what has occurred. Further, I should indicate to your Honor that in my own particular situation I have been sued by one of these defendaats and it’s been alleged by one of those defen- dants that I have abused my office and have issued a process against him from malicious purposes and whatnot and, if your Honor please, I’m entitled to some considera- tion as far as getting this matter rer~lved as well. I think the disposition of this criminal case is going to have a very heavy bearing on the disposition of the civil case which has been pending against me. I’ve been sued for a half a million dollars and I think it’s a matter, if your Honor please, that I’m entitled to an expeditious disposi- tion of that particular case. I don’t want to go on the record and make a personal argument to your Honor, but I think that as far as I’m concerned, this is weightier than the request for a continuance for vacations and teaching at seminars and things of that nature. I think it’s more important for me to get that civil matter resolved than it is to have counsel go and instruct seminars somewhere or take a vacation. I put that to your Honor’s considera- tion. Farther, in that motion, in that civil case that has been filed against me, counsel for one of the defendants here har made a request for production and for interrogatories 40a Appendiz D—Excerpt of Transcript, May 5, 1980 addressed to myself in which they are, in my opinion, I submit to your Honor a copy of the motion, requesting matters that I think are privileged to the extent that they have a heavy bearing upon the preparation of the State’s case for trial here and I don’t think that I should be com- pelled to delay the criminal prosecution while they go through the civil case and require me to submit to them items which I think are privileged matters in connection with the prosecution here. This case has been pending for five years. Your Honor assigned a trial date of June 17th. The State is ready to proceed. We will never be any more ready than we are at the present time. I don’t think the reasons submitted for a continuance are adequate reasons to justify a con- tinuance in the matter and I want to state very em- phatically, if I possibly can, that I feel that any continu- ance anywhere near the date of September is going to put the State in very heavy jeopardy. I’m in a situation where I have reason to believe at least one or more State’s witneszes will not be available to the State after the months of July and August and I want to be recorded as em- phatically as I can for the reasons that I have stated as saying this case should start as scheduled or as shortly thereafter as possible and in no event should this case be continued to September. That’s my position. The Court: Thank you. Mr. Koskoff: Your Honor, may I respond just briefly? The Court: Yes. Certainly. Mr. Koskoff: I don’t know just how to say this. It’s clear to me that Mr. Browne feels personally involved. If he feels that personally involved, he’s looking for jus- tification for his actions from the results of this case, he ought to disqualify himself because he has expressed to you a personal motivation. 4la Appendix D—Excerpt of Transcript, May 5, 1980 The Court: I think Mr. Browne is quite capable of making that decision, Mr. Koskoff, without help from either you or L. Mr. Koskoff: I’m not sure it’s a matter of the defen- dants as well, in any event, the delay, I should call to the Court’s attention, that Mr. Moeller, who was indicted in the Federal Court and tried and found not guilty, was not arrested in the State case until some almost three years, I think, after ’77 was the— He was arrested— What was the date? Mr. Browne: He was arraigned on April 4th of 1977. So, I would assume he was arrested within days. Mr. Koskoff: So, you know, it is true what Mr. Browne said about the fact that we did take these steps which any lawyer would have taken. Mr. Browne: I’m not being critical of the motions or the fact that the appeals were taken as Mr. Koskoff says. Those were legitimate pleadings and I’m just trying to explain to your Honor why it has taken this length of time. The Court: I understand. Mr. Browne: Again, my persona! situation is not, I’m not asking your Honor to really give that any considera- tion. I’m just trying to tell your Honor my position. The incident occurred five years ago. The case has been pend- ing here for over three years. There are relevant reasons why this case should be expeditiously tried, particularly, the ability of the State to get its witnesses here and I think that it is a more over-weighing factor and superior to the fact of vacations or teaching or participating in seminars. That’s my opinion. I’m not going to take any vacation this year. I’ve got my duty here to put this on and that’s what I’m intending to do. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0248%3A2. Public record. Not legal advice.