Petition for a Writ of Certiorari — Sparber v. New York

Supreme Court brief1965

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: FILED

IN THE

Supreme Court of the Hnited Grates

October Term, 1964

no 1184

MYRON M. SPARBER,

Petitioner,

— VY.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

—— —__—-

Maurice EpELBAUM

Attorney for Petitioner

250 Broadway

New York, New York

oe 32 Case Press Inc., 421 Hudson St., N.Y.—ORegon 5-4540

“a io

INDEX

PAGE

NE I Soak in £4 ck Wee rh eed ed iene ins dened 1

IS ets Seucwee) see cade ooh 4 AWA sete er 1

Co aids we da ld eetwe we ew ewes 3

Constitutional Provisions and Statutes Involved .... b)

Statement of the Case and of How the Federal

Questions are Presented . .. 2.26.6... cccdeceee 4)

Reasons Tor Granting the Writ ...............0%. 11

IN Ses Tatas bag ew Fi waa uaa anes aan’ 32

Arpenpix A—Judgment and remittitur of the Court

of Appeals of the State of New York herein sought

| EPIC Sire Sarr gre ere Ore ae la

AppenpDix B—Order granting motion to amend remit-

tural Court of Appeals... . 6 fences ceceeess: 4a

Appenpix C—Copy of index of petitioner’s printed

brief in the Court of Appeals, showing points there

raised, including Federal questions .............. 6a

Avtuorities CITED

Cases

Brady Vv. Maryland, SiS US. SS... 0c ecccescs 12

Escobedo v. Illinois, 378 U.S. 478 .................. 29, 31

Py Wc ee OU Eo kk ck vec vceeaceess 14

Gleason v. Mullen, 204 Mise. 450, 121 N.Y.S. 2d 605

(S. Ct. N.Y. Co. 1953—Eder, J.) ........... 21, 24, 25, 26

Hyde v. United States, 225 U.S. 347 ............... 28

PAGE

Manley v. United States, 283 F’. 2d 211, 222 (C.A. 6,

DE AMSG eehdahborehensasechiaeeedebesseans 28

Massiah v. United States, 377 U.S. 201 ............ 29, 31

McDonald v. Goldstein, 273 App. Div. 649, 79 N.Y.S.

2d 690 (2nd Dept. 1948), affirming 191 Misc. 863,

cd dunn Caen towered time ssee 6 26

Melvin C. Jenkins v. United States (Oct. Term, 1964,

Sh Nb dc. bbeh es e460 so04 200050068 0460446000 26

People v. Saitta, 170 App. Div. 665, 156 N.Y.S. 675

(Rae TUE, TORR) 2. cc cccccccvcevcccscessecscces 28

Ray v. Parker, 15 Cal. 2d 275, 101 P. 2d 665 ........ 26

Silver v. Gassman, 12 M. 2d 58, 171 N.Y.S. 2d 314

(S. Ct. Kings Co. 957), Affirmed 6 A.D. 2d 277

EE SU doce wetudvaccessccesesseves 26

eB Pe In ED ons de vccccevecicccenes 14

, Statutes

Pees RO GIs OD, GOO vos ccesivecevcccccsccs 5, 8

Face o SR EP TO, I oe oc ccceecccscdsesens ; 5

N.Y. Code of Criminal Procedure, § 465, par 4 ...... 28

Bees I ES Wn Su 50s baev cd aonessseeecess 5

Dee sn ot eweteeesonnes 3D

PR ee 5)

EE EE inc venana ube odblepidedbecesds 2

United States Constitution

ean ee ree d. 31

ee ak le eek a wel 5)

oe a nee ae ka ekaleues® 5

IIIS 6 on wc wcanccuceebacedsasses 5)

Miscellaneous

ee es ey | | ee 28

SE, SECT vss 6s bo on-b'v'b'ys be 400:sse00eevess 14

ae oe eS ea kee'eks 27

Overs 0) Ace

——

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yet aek ak

IN THE

Supreme Court of the Anited States

October Term, 1964

No.

a...

Myron M. Sparser,

Petitioner,

—Y =

Tie PEopLE oF THE STaTE or New York,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

Petitioner, Myron M. Sparber, prays that a writ of certio-

rari issue to review the judgment of the Court of Appeals

of the State of New York entered in this case on March 11,

1965.

Opinions Below

There are none.

Jurisdiction

The judgment of the Court of Appeals of the State of

New York here sought to be reviewed was entered on March

11, 1965. That judgment affirmed, without opinion, a judg-

ment of the Supreme Court of New York, Appellate Divi-

sion, First Department, entered February 18, 1964, which

had affirmed without opinion a judgment of the Court of

General Sessions, County of New York, entered May 9,

epsunemmeneneiets —" oe) 5 TT ERP RE RO Eat

1962, which had convicted the within petitioner of the

crimes of subornation of perjury and attempted suborna-

tion and had sentenced him to imprisonment. The judgment

of the Court of Appeals of the State of New York of March

11, 1965 which is here sought to be reviewed was rendered

on the merits in an appeal to that Court by the within peti-

tioner duly taken by permission of a Judge of that Court,

from the aforementioned judgment of the Appellate Divi-

sion affirming the conviction.

As is more fully recited fra, the within petitioner duly

preserved, in the State Courts, the Federal constitutional

questions as to which we here seek certiorari.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1257 (3), since the petitioner is claiming rights, privileges

r immunities under the Fourth Amendment (unreasonable

search and seizure), the Fifth Amendment (self incrimina-

tion), the Sixth Amendment (right to counsel) and the

Fourteenth Amendment (due process of law, unreasonable

search and seizure, self incrimination, right to counsel) of

the Constitution of the United States.

We are filing—or at least lodging with the Clerk of this

Court—this petition for certiorari at the present time with-

out also docketing the record, because petitioner has been

granted a stay of execution of his sentence of imprison-

ment upon the cundition that his petition for certiorari is

served and reaches this Court by April 24, 1965. The record

being voluminous, its certification by the Clerk of the State

Court is not yet concluded; we expect to docket the record

in the reasonably near future, within the jurisdictional time

limits.

PEE ANP are OOH

Questions Presented

Petitioner, a former member of the New York State

Bar,* was convicted (while a member of the Bar) of sub-

ornation of perjury and attempted subornation in proceed-

ings for investigation of accident case litigation. The

questions are:

1. Was petitioner denied a fair trial and due process

of Jaw by the Trial Court’s refusal to compel disclosure of

certain evidence in the hands of the prosecution which the

defense claimed would prove exculpatory?

2. Was the petitioner denied a fair trial and due process

of law at his trial, and was he also denied a fair due process

forum of appellate review, in that this entire criminal

prosecution was in effect initiated and fostered by the

judicial branch of the Government of the State of New York

—the aforementioned investigation of accident case lawyers

in which petitioner’s alleged subornation offenses occurred

having been conducted by a ‘‘Coordinating Committee”’

which is an official instrumentality of the intermediate

State appellate court (the Appellate Division, First De-

partment) which also was the appellate tribunal where

petitioner was obliged (over his objection) to bring the

appeal from his conviction and sentence herein,** and the

Coordinating Committee having acted in this case both as

* Petitioner was disbarred by reason of his conviction in this case.

** The Appellate Division is the only New York State appellate

court where review of a criminal conviction of the instant type

may be had as of right on issues of fact, law and_sentencing ;

review in the Court of Appeals of the State of New York is per-

missive in a case of this type and is limited to issues of law.

a disciplining body and as an initiating and actively par-

ticipating arm of the District Attorney’s office. In these

circumstances, has not the judicial branch of the Govern-

ment of the State of New York been in the position of both

prosecutor and judge in this criminal case?

3. Was the petitioner denied a fair trial and due process

of law in that the prosecutor used his power of control

over the trial calendar in an unconstitutionally oppri sive

manner so as to confront the petitioner with the unjust

alternative of pleading guilty or of being forced to trial

befcre a hostile judge?

4+. Was petitioner denied a fair trial before an uncoerced

jury, in that the Jury was in effect forced to continue its

deliberations over a period of six days and five nights

without being instructed that they were free to report a

deadlock, and in that the verdict which the Jury finally

rendered was manifestly a compromise verdict of the type

which violates due process of law?

5. Was petitioner denied a fair trial, due process of law,

his constitutional] right to counsel, his privilege against self

incrimination, and his rights against unreasonable search

and seizure, through the admission in evidence at his trial

of testimony and of alleged transcripts of deceitfully staged

and electronically eavesdropped conversations some of

which occurred in petitioner’s private office premises and

all of which were at a time when petitioner was a prime

suspect of criminal investigation in which the Coordinating

Committee and the prosecutor were working in conjunction

secretly and deceitfully to place petitioner in positions in

which he might unknowingly incriminate himself?

The case involves, under the Fourteenth Amendment, the

due process clause of that amendment and its Federal-State

impingements with respect to the search and seizure provi-

sions of the Fourth Araendment, the self incrimination pro-

vision of the Fifth Amendment, and the right to counsel

under the Sixth Amendment.

The case also involves N.Y. Penal Law §58u (conspiracy),

§§1632 and 2 (subornation of perjury and attempted sub-

ornation), and (1294 (grand larceny). These provisions,

not being of direct concern under the issues of the present

petition for certiorari, are not quoted herein.

The case also involves N.Y. Code Crim. Proc. §399 (cor-

roboration of accomplice testimony), and §428 (discharge

of jury upon disagreement). The corroboration provision

is not of direct concern in this petition for certiorari. Sec-

tion 428 N.Y. Code Crim. Proc. is quoted in pertinent part

under our ‘‘Reasons For Granting The Writ’’, wfra.

Statement of the Case and of How the

Federal Questions are Presented

(As already mentioned, the certified record will be dock-

eted as soon as possible before the expiration of the ninety-

day time limit (v-hich expires June 9, 1965). The record in

this case is voluminous, the trial minutes alone being more

than 4300 typewritten pages. Both of the appeals below—

in the Appellate Division and in the Court of Appeals—

were permitted to be heard on the original papers without

~ rinting of the record or of an ‘‘ Appendix”’, plus a number

. photocopies of the trial minutes. Four sets of those

photocopies of the trial minutes have been made available

to us. through the courtesy of the Clerk of the Court of

Appeals, and we shall supply those photocopies to tunis

Court when we file the certified record. The numerical

references in parentheses in the followiag statement of the

case are to the original typewritten stenographic minutes

of the trial.)

Petitioner, who has been disbarred as a consequence of

his conviction in this case, was indicted in May 1960 in a

sixteen-count indictment containing one count of conspiracy

to commit subornation of perjury, ten counts of subornation

or attempted subornation of perjury, and five counts of

grand larceny by false pretenses. All sixteen counts in-

volved alieged conduct of the defendant as an attorney in

accident cases of his clients. The subornation charges re-

lated to testimony of clients and one physician before a

body known as the Coordinating Committee On Discipline ;

the grand larceny charges related to the obtaining of money

from insurance companies on alleged false representations.

Petitioner was tried on all sixteen counts, but the Jury after

deliberations of perhaps unprecedented length (see details

infra), disagreed on thirteen of the counts, convicted peti-

tioner on one count of subornation and one count of at-

tempted subornation, and acquitted on one count of grand

larceny.

Petitioner was sentenced to one and one-half to three

years on the subornation charge and to one year and three

months to two years and six months on the charge of

attempted subornation, to run concurrently.

The ‘‘victory’’ of the prosecution in this case was hard-

won to a degree seldom, if ever, matched in the State of

New York, if indeed in any other jurisdiction. The trial

consumed fifty-one trial days extending through eleven

weeks. The Jury received the case early in the afternoon

of March 29, 1962, and except for Sunday, April 2, when the

Jury did not deliberate, they deliberated daily and nightly

until the evening of April 3, 1962—a total of six days and

five nights having elapsed since the case was turned over to

the Jury. Nightly duriug these deliberations (except on the

Sunday just mentioned when they did not deliberate) the

Jury reported to the Court, at a late hour, that they had not

reached a verdict. At around midnight on the fifth day,

when the Jury had again reported no verdict, the defense

moved to discharge the Jury on the ground that any verdict

thereafter would be a coerced verdict in view of the pro-

longed deliberations ; and that the Court should read to the

Jury § 428 of the New York Code of Criminal Procedure

(quoted at p. 27, infra), so that the Jury could learn that

they were permitted to report that they were deadlocked,

whereupen the Court in its discretion could discharge them ;

hoth of these requests were denied (4300-4302), and the next

evening the Jury at last brought in its verdict. Nowhere

in its instructions to the Jury had the Trial Court told them

anything about a Jury’s right to disagree on a verdict for

the case as a whole (4103 et seq.).

That petitioner’s guilt was far fre overwhelmingly

proved to the uncoerced satisfaction of the Jury is in-

dicated by the Jury’s disagreement on thirteen of the six-

teen counts and its acquittal of petitioner on one count.

These disagreement counts involved six of the seven acci-

dent case clients whom petitioner allegedly suborned; and

as to the seventh client, Lewis Rice, the conviction for at-

tempted subornation was accompanied by an acquittal on

the insurance company-grand larceny false representation

count involving that same ciient; the other conviction count

for subornation involved a physician, Dr. Simon G. Igra,

who had treated some of petitioner’s clients—it is note-

worthy that petitioner was not convicted under any of the

Counts relating respectively to those same clients them-

selves.

The evidently compromise character of this evidently

coerced verdict must be considered, furthermore, in the

light of the exceedingly dubious legality and constitutional-

ity of several aspects of the trial—we realize that not all

of these dubious items present Federal questions, but we

think the case as a whole cannot be meaningfully evaluated

in Federal terms without noting the entire miscellany of

unfair and improper procedures which were resorted to in

this trial to secure a conviction.

Tor brevity, we shall merely enumerate the errors which

we urged ir the two appeals below under each of the two

conviction counts:

As to the conviction for attempt to suborn Lewis Rice,

we urged (1) that Rice, himself an accomplice witness whose

testimony was 2a tissue of evasions (e.g., 92-101, 110-134,

145-164), was insufficiently corroborated under N.Y. Code

Crim. Proc. § 399* because none of the supposed corrobora-

tion—except certain typewriter testimony which was shat-

teringly impeached (witness McNally, 3140-3328)—-went to

the essential question of petitioner’s knowledge of the al-

leged falsity of the claim of loss of employment which peti-

tioner was charged with having suborningly attempted to in-

* Required corroboration of accomplice testimony.

—

duce Lewis Rice to assert before the Coordinating Commit-

tee; (2) that the Trial Court gave the Jury no instructions

to the effect that such alleged scienter of petitioner had to be

corroborated; (3) that the Trial Court erred in instructing

the Jury that Lewis Rice was not an accomplice as a matter

of law (4154-4155) ; (4) that the Trial Court in its instruc-

tions to the Jury had flatly misstated the testimony of the

witness Conrad, the People’s ‘‘star’’ witness on the Lewis

Rice charge, Conrad having said that the petitioner asked

Rice whether the latter ‘‘wowld tcoufy that he doesn’t re-

meyer whether he workea’’ for a certain employer (84-89),

whereas as the Court instrucied the Jury that Conrad said

petitioner had affirmatively asked Rice to testify that he had

worked for said employer and that petitioner had asked

Conrad himself to tell Rice to lie about this (4154-4155,

4177, 4192) ; (5) that it was a denial of Federal due process

for the Trial Court to refuse to compel disclosure of the

Coordinating Committee testimony of one Duriel Schlift-

man which the defense claimed would be exculpatory

(2542-2553, 2565-2566, 2570-2578); and (6) that it was

prejudicial error for the Trial Court to ailow intermingling

of the charges and the proofs under other counts of the

indictment with those under the Lewis Rice subornation

count (e.g., 4207).

As to the conviction for subornation of Dr. Igra (i.e., al-

legedly suborning false testimony before the Co-ordinating

Committee as to medical treatment of petitioner’s clients),

we urged (1) that Dr. Igra, an accomplice witness of de-

structively impeached credibility, was insufficiently cor-

roborated by legally or constitutionally admissible evidence

because the ‘‘corroboration’’ came from Dr. Igra’s wife,

herself an accomplice as a matter of law whom the Court

declined to treat as such (4164), and from miniphone re-

cordings which we discuss further infra; (2) that it was

prejudicial error to instruct the Jury that they could use

the testimony of Lewis Rice to convict the defendant under

the count involving Dr. Igra (4176-4177), there being no

conceivable justification for this incomprehensible inter-

mingling of the two situations which were wholly factually

distinct from each other; and (3) that evidence was ad-

mitted under an erroneous application of the theory of

‘‘prior consistent statement’’ (3035 et seq., 3059 et seq.).

In addition, we urged the above noted points as to coerced

and compromise verdict, plus the other Federal questions

recited supra in our ‘‘Questions Presented’’ herein.

Petitioner took the stand and testified in his own defense

at the trial, denying all the charges and remained unshaken

in all respects after cross examination (see, e.g., 3474 et seq.

re charges involving Dr. igra, and 3524-3529, 3536-3537

re charges involving Lewis Rice; tor petitioner’s entire

testimony, see 3461 et seq., 3468 et seq., 3559 et seq., 3821

et seq., 3828 et seq.). Petitioner introduced evidence of his

good character, by forty-one witnesses all of whom were

responsible persons of the highest type in community,

government or business affairs, including ten judges (3397

et seq., 3482 et seq.).

Petitioner also moved in the Appellate Division and re-

quested in his brief in that Court (Point VI, p. 149) that

the appeal be transferred to the Appellate Division of an-

other department on the ground that the Coordinating Com-

mittee was an instrumentality of the First Departmert and

had in effect initiated and actively participated in the crimi-

nal prosecution which was now to be reviewed by the First

Department. Such transfer was not granted. We repeated

these contentions before the Court of Appeals (Appellant’s

brief, Point IV, pp. 113 et seq.), where, again, relief was

denied.

The Appellate Division affirmed the conviction without

opinion. The Court of Appeals affirmed the judgment of

the Appellate Division without opinion. A motion is

before the Court of Appeals to amend the remittitur so

as to reflect that the Federal questions which we here raise

were considered and passed upon by that Court was granted

on April 22, 1965 (Appendix B hereto, infra). In order

that this Court may have before it a complete statement

of the points which we raised in the Court below, we are

printing in Appendix C, hereto, infra, the text of the Index

of our brief in that Court; substantially the same points

were raised in the Appellate Division.

Reasons for Granting the Writ

1. In regard to the conviction on the count of attempted

subornation involving petitioner’s accident case client,

Lewis Rice—it being alleged that petitioner tried to suborn

Rice to testify falsely that he had lost certain employment

time—a vital segment in the proofs against petitioner will

now be noted in more detail than was convenient in our

Statement of the Case, supra. A prosecution witness named

Norman Baron conceded in cross examination that his

partner Daniel Schliftman could well have handled the

questioned employment of Lewis Rice (2396-2409). The

defense therefore wanted the Coordinating Committee tes-

timony of Schliftman for the purpose of further cross

examination of Baron (2543-2553, 2565-2566, 2570-2578).

The prosecutor adamantly refused to surrender this testi-

mony (which had been turned over to him by the Coordi-

nating Committee) on the bland ground that it was ‘‘se-

cret’’, and the Trial Court sustained the prosecutor in this

position( ibid). The denial of relief under the application

which was thereafter made by the defense before the Ap-

pellate Division during a recess of the trial allowed for that

purpose, did not touch the constitutional aspects of the

question, and it scarcely could have, because our constitu.

tional position which we are herein asserting is based upon

a decision of this Court which was not handed down until

after the instant trial. See Brady v. Maryland, 373 U.S. 83,

where it was held that a state prosecutor’s suppression of

exculpatory evidence is a denial of due process even where

such suppression is not discovered until after trial and

conviction. The issue as thus constitutionally formulated

was unavailingly presented to both of the appellate courts

below. It is submitted that this Court’s intercession is

needed in our case to vindicate the important principle of

Brady v. Maryland.

2. Since this case involves alleged misconduct on the

part of a lawyer, it was important that « proper and fair

line be preserved as between the disciplinary and the

criminal-prosecutive features of the situation. The within

indictment arose from an investigation by a Coordinating

Committee On Discipline which was the direct creation and

instrumentality of the Appellate Division, First Depart-

ment, of the Supreme Court of New York. In an affidavit

filed in said Appellate Division, First Department, by Henry

Wiener, Esq., sworn to March 1, 1962, as Chief Counsel of

the Coordinating Committee, it was averred:

‘‘The Co-ordinating Committee on Discipline, pur-

suant to an order of the Appellate Division of the

Supreme Court of the State of New York, First De-

partment, dated February 3, 1959 has been conduct-

ing an inquiry into the handling of personal injury

claims by attorneys and those essociated with or em-

ployed by them, and in connection therewith has been

conducting a specific inquiry into the practice of said

Myron M. Sparber with respect to the handling of

personal injury claims. During the course of said

inquiry the sworn testimony of some 70 witnesses

were taken, and it developed therein, in the judgment

of the Committee, that there were indicated viola-

tions of the Penal Law of the State of New York.

Pursuant to a standing order of the Appellate

Division of the Supreme Court, First Department,

dated December 30, 1959 the Coordinating Commit-

tee was directed, whenever it was apprised of or

obtained information indicating possible violations

of the penal law, to divulge the same to the District

Attorney of the County having jurisdiction of the

prosecution of such alleged violations, including the

turnover of minutes of the testimony of witnesses

taken in its preliminary inquiry. Accordingly, the

Co-ordinating Committee, pursuant to said order,

Aid turn over to the District Attorney of New York

County the minutes of a number of wituesses who

had testified before the Co-ordinating Committee in

the preliminary investigation of said Sparber so that

the District Attorney might determine which specific

sections of the penal law had been violated, an‘ take

appropriate action. Thereafter Sparber was in-

dicted * °°.”

Mr. Wiener’s affidavit further averred:

‘¢ * * * Tn the event that the name of Myron M. Spar-

ber is not stricken from the roll of attorneys as a

result of a felony conviction in the pending trial in

General Sessions, it is the intention of the Co-ordi-

nating Committee to ask leave of the Appellate

Division to institute a disciplinary proceeding alleg-

ing professional misconduct on the part of said

Sparber eee

As the above quoted affidavit of the Coordinating Com-

mittee’s Chief Counsel, Mr. Wiener, plainly stated, the

Committee saw fit in this particular case to propel the mat-

ter directly into the forum of criminal prosecution rather

than to conduct disciplinary proceedings in the first in-

stance. The indissolubly integral role, then, of the Co-

ordinating Committee in this entire criminal prosecution

from its very outset, creates the highly anomolous situation

in which, as we ventured to phrase it earlier, the Appellate

Division, First Department, called upon to exercise its stat-

utory appellate jurisdiction under § 517 of the N.Y. Code of

Criminal Procedure, sat as ‘‘Judge’’ in reviewing a judg-

ment of criminal conviction which that very Court (per its

own Official instrumentality, the Ceordinating Committee)

in effect instituted and actively fostered.

We moved in both of the Appellate Courts below, as seen,

that the appeal should be transferred to the Appellate

Division of another Department, but this was denied.

It is hardly necessary to cite authority for the principle

that due process requires an impartial tribunal. Jordan v.

Massachusetts, 225 U.S. 167; Tumey v. Ohio, 273 U.S. 510;

Fay v. New York, 532 U.S. 261 (‘‘before a tribunal not

biased by interest in the event’’). Cf. also, 10 A.L.R. 2d

1307 (‘‘Interest of Judge In An Official Or Representative

Capacity’’, ete.).

It is submitted that this situation, in which state courts

have acted as both prosecutor and judge, resulting in the

criminal conviction and the consequent disbarment of a

lawyer of prior unblemished reputation, merits this Court’s

attention and review.

3. On January 11, 1962, just prior to the commencement

of the trial under this indictment, petitioner’s present

counsel (Maurice Edelbaum, who was also defendant’s

counsel at the trial) made a motion before the Honorable

Joseph A. Sarafite, the Justice who had been assigned to

try this case, to disqualify himself. In support of this

motion counsel stated (Minutes of Jan. 11, 1962) :

‘‘Your Honor, I was not the original attorney in

this case. The defendant was represented by a

former Assistant District Attorney now practicing

law named Carl] Rubino * * * ”’ (p. 3).

‘‘He tells me—and I accept what he tells me—he

tells me that after he had retained Mr. Rubino, that

during some of the conferences with Mr. Rubino,

that he was told that he should plead guilty to a

felony ; and if he pled guilty to a felony in this case,

he could select whatever judge his lawyer or himself

decided to-plead guilty before. But that if he didu’t

plead guilty, he would be tried before your Honor.

And they said to him that in the atmosphere that

would be prevailing in your courtroom, that he would

undoubtedly be convicted, and that if he was con-

victed he would positively go to jail in your court-

room, regardless of his background, regardless of

anything, under this indictment.

‘‘Subsequently, I told this to Mr. Clark,* and I

also told it, very informally, to your Honor’’ (pp.

3-4).

* The Assistant District Attorney.

‘‘Mr. Clark then informed me, some time ago,

when the case was on the calendar, that you would

not be the Judge who would try this case.

‘‘Of course you are familiar and I am familiar

with the fact thai in this County the District Attor-

ney selects the Judge before wnom the case is to be

tried. He told us that you would not be the Judge,

and the reason he gave me is that he said to me that

your Honor had informed him that because of the

strenuous cases that you had had in a row, that you

didn’t want a verv strenuous case again, and that

therefore this case would not be tried before you.

‘Of course, after I was told this case would not

be tried before you, I informed my client of that

fact, and he said to me, ‘I don’t believe it. You will

see that I will still be tried before Judge Sarafite as

I was promised by my prior lawyer, if I didn’t plead

guilty to this felony’ ’’ (pp. 4-5).

‘‘Last week Mr. Clark called me and said that he

was abandoning the motion to consolidate, and I said,

‘Where are we going to try this casz?’ He said, ‘We

will try it before any Judge whose calendar would

be free on that day to try the case.’ So I said, ‘Well,

Frark, tell me, do you mean Judge Sarafite?’ He

said, ‘If Judge Sarafite will be free on that day, he

will be tried before him.’ I said, ‘I thought you told

me that this case would not be tried before Judge

Sarafite.’ He said, ‘Yes, I told you that, but I can’t

help it; that is, I can’t do anything about it.’

‘*When I informed my client of this situation, he

told me, ‘‘I told you that I was right.’ He said, ‘I

am convinced that the District Attorney is making

Judge Sarafite the hatchet man, as Judge Mullen

was when he was on the bench, as I have been told

by other people.’ Well, I said, ‘t can’t help anything

about it at all. All I can do is present the facts

before Judge Sarafite and let him decide what should

be done.’

‘¢Your Honor, I think that in the context of what

has happened, that I am entitled to when a defend-

ant is on trial—and this defendant contemplates

taking the stand on his own defense—I am entitled

to a defendant free of any mental aberration because

of the feeling he has that the District Attorney has

selected the Judge to convict him; and I think in this

case I am entitled to have your Honor disqualify

yourself in this case’’ (pp. 5-6).

In replying (Minutes of January 11, 1962, pp. 6, ef seq.)

to the above quoted remarks of defense counsel, Assistant

District Attorney Clark, apparently in a moment of in-

judiciousness prompted by zeal, stated to Judge Sarafite

that in previous discussions which he [Mr. Clark] had had

wiih the defendant’s prior attorney, Carl Rubino, ‘‘I con-

vineed Mr. Rubiao that this defendant was guilty. Mr.

Rubino told me that he would not want to try this case ever,

and would persuade his defendant to plead guilty.”

The Assistant District Attorney further stated that he

had made no commitment to, and had not even had any

discussion with the defendant's prior attorney (Mr. Rubino)

about the question of which Judge should try this case. He

conceded that he had had a discussion along those lines

with the defendant’s new attorney (Mr. Edelbaum), but

such discussion had centered oniy around the question of

the crowded condition of the Court calendar. Mr. Clark

also denied that he ever stated at any .time that the de-

fendant would have to go to trial before Judge Sarafite

unless he pleaded guilty.

However, at page 14 of the Minutes (1/11/62) Mr. Clark

said: ‘‘...1...stateclearly . . . if the defendant wants

to plead now, I would have no objection to his selecting

any Judge before whom he wanted to plead.’’

Judge Sarafite stated, defense counsel assenting that

such was true, that the statements attributed to Mr. Clark

about the defendant’s having to be iried before Judge

Sarafite unless he pleaded guilty had never been brought

home or made known to Judge Sarafite. Defense counsel,

however, pointed out ‘‘it is inferentially being said now.”’

Defense counsel then further stated (pp. 16, 17):

‘‘Mr. Edelbaum: (ne thing was said here, that

I don’t think should have been said, and that was

said by Mr. Clark in your presence.

The Court: What is thet?

Mr. Edelbaum: That Mr. Rubino was convinced

of his guilt and was going to persuade him to plead

guilty. He shouldn’t have said that before your

Honor’”’ (p. 16).

‘“‘Mr. Edelbaum: And I say this, your Honor,

that Judges perhaps have a greater ability to dis-

regard certein things that are said than ordinary

jurors, but sail Judges are human beings, and the

remarks made by Mr. Clark of what Mr. Rubino felt

about this case, could understandingly prejudice

your Honor in this case’’ (p. 17).

Thereafter, at the request of defense counsel, Judge

Sarafite consented to hear a statement from the defendant

himself, which was as follows (pp. 20-21):

‘The Defendant: May it please your Honor, I just

want to indicate that not only did Mr. Rubino te!] me

that an atmosphere which would be created by you

would assuredly result in my conviction, and if con-

victed would assuredly resuit in my being imprisoned

despite no previous record, and my record in the

community, but at a conference held in the office of

Mr. Sol Gelb, at which time he represented Mr. Glass-

man my associate, I asked Mr. Geib in the presence

of Mr. Rubino if he believed, as Mr. Rubino did, con-

cerning what would happen if I went to trial before

your Honor. and Mr. Gelb reaffirmed Mr. Rubino’s

statement. It was thereafter that I retained Mr.

Edelbaum. After Mr. Edelbaum got into the picture

he called me up one Friday night, long distance from

Atlantic City, he had been to New York and had gone

back to Atlantic City to join his wife, and knowing

of my trepidation and fear, he told me quite jubi-

lantly that Frank Clark had to!d him that under no

circumstances would Judge Sarafite be the judge in

this case.

‘*With all due deference to your Honor, i was de-

lighted in view of the information -vhich I had re-

ceived from counsel, but nevertheless I asked Mr.

Edelbaum, ‘Are you sure; because 1 don’t know if

you can really rely on this.’ He said, ‘When Frank

Clark tells me something in the menner in which ] am

relating it to you, you can reiy on it 100 per cent.’

‘*Despite that, I stil! had trepidations. |] again

asked him, ‘Are you sure? Are you certain?’ ‘No

question about it, because I know Frank Ciark for

many years, altiiough I never tried a case with him.

A representation from Frank is as good as a guaran-

tee.’

‘-Then, of course, immediateiy after he got a call

from “rank Clark indicating you might be the Judge

if you were free. I reminded him of his guarantee,

and he said, ‘I don’t know. It’s not my fault. it bas

never happened to me before where a man went back

on his promise.’

‘‘The point -I am trying to make is that now not

only is my confidence in some way disturbed in the

type of trial that I will get or in the type of treatment

I will get, if God forbid there should be a conviction,

but I am also quite apprehensive concerning any

statement that any District Attorney will make to me.

It is going to be very difficult for me in view of this

past history to rely upon anything that is told to me

by the Court, by the District Attorney, or even by my

own counsel.

‘That is what I wanted you to hear.’’ (pp. 20-21)

Near the end of the aforesaid motion proceedings oc-

curred the following colloquy between defense counsel and

Assistant District Attorney Clark (22):

‘‘Mr. Clark: Judge, I want to make one statement.

At no time did I ever use any language to Mr. Edel-

baum ‘Under no circumstances would Judge Sarafite

ever try this case’, or did I ever give a guarantee.

Mr. Edelbaum: Of course he didn’t guarantee and

he didn’t use that language, but he did say to me, and

I don’t think that Mr. Clark denies that, that you

were not going to try this case.

Mr. Clark: What do you mean?

Mr. Edelbaum: That Judge Sarafite was not going

to try the case. You told me that, Frank Clark.

Mr. Clark: I didn’t use that language.

Mr. Edelbaum: I disagree with you. Now I am

offended.’’ (p. 22)

The foregoing inevitably focuses attention upon the pecu-

liar power, apparently enjoyed by the District Attarney of

New York County for many years, in effect to select the

General Sessions Court* Judge who should try a particular

criminal case. 7» a moment we shall examine the legal

background—or rather the ostensible ‘‘legal’’ background—

of this strange power of the District Attorney of New York

County, but first we would mention that the above quoted

and described motion proceeding for the disqualification of

Judge Sarafite in the instant case illustrates vividly how

this power of the District Attorney may be used to whipsaw

a defendant into pleading guilty lest he be dragooned by the

prosecutor before a ‘‘hanging judge’’. As seen, Assistant

District Attorney Clark was still plying the whipsaw in the

very motion proceedings in question, Mr. Clark having said

““T * * * state clearly * * * if the defendant wants to plead

now, I would have no objection to his selecting any judge

before whom he wanted to plead’’ (minutes of January 11,

1962, p. 14). And the event proved just how destructively

slashing the whipsaw could be. The unhappy fact is that

petitioner Sparber was tried by a Judge whose bias weaves

through this tria

’ ada

What is the ‘‘legal’’ basis for the extraordinary whipsaw

power which the District Attorney of New York County

exercised in this case? The entire situation is revealingly

disclosed in Gleason v. Mullen, 204 Mise. 450, 121 N.Y.S.

2d 605 (S. Ct. N.Y. Co. 1953—Eder, J.):

‘‘Tt has been tne traditional practice for the dis-

trict attorney of New York County to prepare the

trial calendar in the Court of General Sessions and

to assign cases for trial to the various parts of the

* Now the Supreme Court.

** Detailed demonstration of this bias is beyond the scope of this

Petition. We would make the demonstration in a brief on the

merits.

court. This has also been the practice with regard

to the County Court in Kings county. McDonald v.

Goldstein, 273 App. Div. 649, 79 N.Y.S. 2d 690. This

calendar practice has been performed and discharged

by the district attorney without any express statu-

tory authority conferred upon him. It is now claimed

by petitioner that such action by the prosecutor is

illegal and that the preparation and control of the

trial calendar is vested exclusively in the court and

cannot be delegated to another and if done it is un-

lawful and ineffective.

‘‘As this court views the matter the petitioner’s

application is devoid of merit and legal stability.

‘*Section 55-a of the Code of Criminal Procedure,

vests in the Court of General Sessions the power to

make rules and regulations regarding its government

and practice, and provides:

‘The court of general sessions of the county of

New York shall have power at all times to make

rules and regulations for its government and con-

duct and for the practice therein, and to enforce

the same by imprisonment for contempt, or by fine,

or by both.’

‘‘Pursuant to and within these legislatively de-

clared powers the court promulgated the following

rule governing its conduct and practice: ™

‘Rule V.

‘Moving ac ‘se for trial.

‘The district attorney oz the county of New York

is authorized to move for trial prison or bail cases,

including homicide and protracted cases, in any

trial part of the court.’

‘*As the court apprehends the petitioner’s premise

it is that this constitutes a delegation of judicial

power to the district attorney and hence his desig-

nation of petitioner’s indictment for trial is illegal

and should be prohibited.

‘‘There is no substance to this claim. It is very

clear that in authorizing the district attorney to so

act the court was merely utilizing him in a ministerial

capacity “or clerical service and was in no sense

transferring or abdicating its jurisdiction, functions

and powers; these the court fully retained. The

court’s control over the calendar continued and re-

mained unimpaired. It could recall, suspend and re-

voke the rule at its pleasure.

‘“‘The modern tendency, and, indeed, it has also

been so in the past, is for the courts to relieve them-

selves of ministerial or administrative work which is

intertwined with their strictly judicial functions and

to have such work performed by others to whom it

may be assigned. It is recognized that unless this pro-

cedure is employed the work of the court in pur-

suance of its strictly judicial functions will be and

does become impeded and retarded and may become

impossible of proper and speedy performance and it

has been stated that this may result in the wheels of

government becoming clogged. with resulting chaos,

Ray v. Parker, 15 Cal. 2d 275, 291, 101 P. 2d 665, 673.

‘‘To assign to others such type of work is not a

delegation of judicial power as that term is under-

stood and applied in law. Ray v. Parker, supra. It is

but employment of an aid in the performance and dis-

charge of the judicial function.

‘‘Tn final aspect, in applying for the order of pro-

hibition sought, petitioner’s basa! apprehension ap-

pears to be that if the practice is sustained of per-

mitting the district attorney to prepare and control

the trial calendar and to make the assignment of

cases for trial to a particuiar part of the court and

to designate the case for trial before a particular

judge, a defendant is placed at a disadvantage and is

deprived of a fair and impartial trial and impedes

the true administration of justice; that, seemingly,

there is an inescapable feeling that the trial judge

will favor the prosecutor and the People to the prej-

udice of the defendant. It is an absurd view.

‘*As to the defendant’s guilt or innocence the deci-

sion is made by the jury and not by the trial judge

so that the claim that the district attorney obtains

an advantage on the issue of guiit or innocence is

purely a fallacious one, and destitute of merit.

‘‘The court, after careful consideration of the peti-

‘ioner’s contentions, is unable to perceive that the

practice assailed ic improper or illegal in any man-

ner; it is a proper and lega! practice and in no way

violates any statutory or constitutional provision or

in any way invades or infringes upon any statutory

or constitutional rights ef the petitioner as defen-

dant in the eyiminal action against him.’’

It thus appears that the awesome power of the District

Attorney of New York County to whipsaw criminal defen-

dants in the manner that occurred in our case does not even

rest upon any explicit statutory authority, but upon a rule

of court adopted purportedly under a general statute au-

thorizing the former Court of General Sessions to make

‘‘rules and regulations.’’ Indeed it is even doubtful whether

the court rule mentioned in the Gleason case was ever in-

tended to give the District Attorney this whipsaw power

either in law or in practica! effect, for the language of the

rule is far from unambiguously establishing such power in

the District Attorney, and Mr. Justice Eder’s opinion above

quoted strives mightily to avoid the idea that the District

Attorney does have any such power which would be beyond

judicial supervision and control. The fact remains that

this power has traditionally been asserted and used without

interference, as illustrated in our case.

Justice Eder’s opinion in Gleason v. Mullen, supra, im-

plicity recognizes that such a whipsaw power in the District

Attorney is not to be acknowledged, but is rather to be ex-

plained (rationalized might be the bette: word) as remain-

ing subject at all times to some theoretical type of judicial

which in practice just never seems to be exercised.

control

We shall not undertake an extensive analysis of the rea-

soning in Gleason v. Mullen, but we think it is not unfair

to say that the reasoning of that decision is far from being

a model of persuasiveness. It is hardly convincing to tell

a defendant who sees the District Attorney’s whipsaw

coming at him that everything is alright because the Court

‘‘could recall, suspend and revoke the rule at its pleasure.’’

It is scarcely any more consoling to a defendant in such a

plight to be told that all that is happening to him is that he

is participating in ‘‘the modern tendency * * * for the

courts to relieve themselves of ministerial or administra-

tive work * * * ’’. Nor do we think that many defendants

would be reassured, in this situation, by the knowledge that

they are helping ‘‘the wheels of government [from] be-

coming clogged, with resulting chaos.’’ And if such a de-

fendant entertained a last-ditch hope of enlightenment from

reading the judicial precedents cited in Gleason v. Mullen

he would be doomed to disillusionment, because the case of

McDonald v. Goldsteim, 273 App. Div. 649, 79 N.Y.S. 2d

690 (2nc Dept. 1948), affirming 191 Misc. 863, 83 N.Y.S. 2d

620 (cited in Gleason), rejected a similar claim of power

by the District At*urney of Kings County to control the

criminal dockets of the County Court of Kings County;*

and the case of Ray v. Parker, 15 Cal. 2d 275, 291, 101 P. 2d

665, 673 (cited in Gleason) involved the scarcely pertinent

topic of state milk control legislation in California.

The decision in Gleason v. Mullen has never been fol-

lowed, as far as we can find, by any other Court. We sub-

mit that the case well merits this oblivion.

Nevertheless, the Petitioner Sparber was denied due pro-

cess of law by the conduct of the District Attorney in fore-

ing him to choose between a plea of guilty and a trial before

the Honorable Judge Sarafite. He was also denied due

process of law by the refusal of that Judge to disqualify

himself.

4. In view of this Court’s decision of April 5, 1965

in Melvin C. Jenkius v. United States (Oct. Term, 1964,

No. 761), we respectfully urge that the circumstances of our

case involve coercion of a jury verdict in violation of the

due process clause. Petitioner was denied a fair trial by

the Trial Court’s abuse of discretion in declining to in-

struct the Jury under §428 N.Y. Code of Criminal Proce-

dure, and in declining to discharge the Jury as being dead-

locked. The said §428 provides, in pertinent part:

‘‘After the Jury have retired to consider of their

verdict, they can be discharged before they have

agreed thereon * * *

* Silver v. Gassman, 12 M. 2d 58, 171 N.Y.S. 2d 314, 317 (S. Ct.

Kings Co. 1957), Affirmed 6 A.D. 2d 277 (2nd Dept. 1958).

2. When after the lapse of such time as shall seem

reasouable to the Court, they shall declare themselves

unable to agree upon a verdict; * * * ’’.

As noted earlier, the defense fruitlessly requested the

Court to read to the Jury the above quoted statute, after the

Jury had been deliberating for several days in this case,

and had still been unable to come to an agreement. The

Court declined to do so.

We have found no decided case under the above statute

which deals either with the question of a defendant’s right

to such an instruction, or with the question of the review-

ability, on appeal, of the trial court’s exercise of discretion

in either declining to give such an instruction or in declining

to discharge the Jury under the authority of the statute.

We submit, however, that on principle neither of these

branches of a trial court’s discretion in a criminal case

should be held to be absolutely unreviewable under any and

all circumstances and regardless of the compelling circum-

stances disclosed upon the record of a particular criminal

_trial. See the recent Annotation on this subject in 93 A.L.R.

2d 627.

We, therefore, respectfully urge this Court to grant re-

view herein, on the ground that the petitioner was denied

a fair trial by an impartial and uncoerced jury in that the

trial court not only manifestly and grossly abused its dis-

cretion in not discharging the Jury after its inability to

reach a verdict had become so plain (i.e., after so unprece-

dently protracted a deliberation), but in any event on the

ground that it was error to refuse the express request of

the defense to inform the Jury of the provisions of ¢ 428

of the Code of Criminal Procedure in that thereby the co-

ercive impact of the situation upon the Jury was effectively

maintained since the Jury was given no opportunity to

know that the law provided an alternative avenue of action

for them whereby they could free themselves (and the de-

fendant) from such coercive impact.

When it is borne in mind, moreover, that the Jury in

this case acquitted the petitioner on Count 16 (the grand

larceny count which was directly companion with the sub-

ornation charges involving the same Lewis Rice and the

same alleged transaction), and when this circumstance is

considered along with the Jury’s inability to agree on a

verdict as to all except one other of the sixteen counts in

the indictment, a situation emerges which is strongly indica-

tive of a ‘‘compromise verdict’’ of the sort which is for-

bidden by both State and Federal constitutional standards.

N.Y. Code of Criminal Procedure, § 465, par 4 (‘‘When

the verdict has been decided by lot, or by any means other

than a fair expression of opinion on the part of all the

jurors’’); People v. Saitta, 170 App. Div. 665, 156 N.Y.S.

675 (1st Dept. 1915). See also Hyde v. United States, 225

US. 347; 53 Am. Jur. 714 (Trial, § 1033).

And at the very least, upon a trial record which, like the

instant one, so strongly imports the likelihood of a jury

‘‘compromise’’ in a setting of inconsistent verdicts, the

principle should be applied that the record should be closely

examined for injustice. See Manley v. United States, 283

F. 2d 211, 222 (C.A. 6, 1956) ;

‘¢ * * * when an obviously inconsistent verdict as to

different Counts * * * is returned by the jury, both

the Trial Court and the reviewing court should be

extraordinarily careful to scrutinize the record for

the ascertainment of any prejudicial error.’’

5. Petitioner was denied a fair trial and his rights

of due process of law, and he was also denied his coa-

stitutional rights of counsel, through the admission in evi-

dence of testimony and of alleged transcripts of deceitfully

staged and electronically eavesdropped conversations. Pe-

titioner was prejudiced by these items because they all

formed part of an unconstitutional design by the prosecu-

tion working in conjunction with the Coordinating Com-

mittee secretly and deceitfully to place petitioner in posi-

tions in which he might unknowingly incriminate himself.

These tactics were improper and unconstitutional because

petitioner was a prime suspect of criminal investigation

at the time in question and he was therefore entitled to his

constitutional rights of counsel and due process under

Massiah v. United States, 377 U.S. 201 and Escobedo v.

Illinois, 378 U.S. 478.

The tactics of secretly and deceitfully trying to make the

within petitioner incriminate himself included the follow-

ing:

(a) Staged conversations between petitioner and Dr.

and Mrs. Igra, in petitioner’s office, which were planned

and carried out under the instructions of the District At-

torney and after the doctor and bis wife were collaborating

with the prosecution (1108-1112, 1326-1327). These staged

conversations made possible testimony in this trial which

indisputably must have lessened petitioner’s chance for an

acquittal.

(b) In evaluating the overall due process quality of the

prosecution’s tactics in resorting to deceit and trickery

through the complaisance of Dr. Igra, it is pertinent to

refer to Dr. Igra’s having been equipped with a miniphone

for his staged interview with Richard Levy, a client of peti-

tioner (1355, 2843-2879, 3037 et seq.). One of the People’s

arguments in support of the admissibility of this item on

the theory of ‘‘prior consistent statement’’ was that Levy

was the ‘‘agent’’ of petitioner. The Igra-Levy miniphone

recording, like the testimony of the alleged conversations

between petitioner and Dr. and Mrs. Igra, must surely have

lessened the petitioner’s chances for an acquittal.

client Calvin Rodgers, under Counts One, Two and Fif-

teen (as to all of which the Jury disagreed) the People in-

troduced in evidence, over defense objections, a profusion

of evidence base! on recordings of alleged telephone con-

versations with both petitioner and the latter’s office

associate Mervin Glassman, done with the consent of

Rodgers after he had started cooperating with the police

(215-217, 257-283, 297, 302, 308, 317, 392-397, 408-409, 412-

416, 423-428, 449-451, 458-497, 504-518, 527-537, 542-567).

Although the Jury disagreed on the counts involving Cal-

vin Rodgers, all of this testimony received under the con-

spiracy count was specifially allowed by the Court to be

used by the Jury, it will be recalled, to convict petitioner

under any and all of the substantive counts. And the Rodg-

ers telephone conversations in which he was acting as a

police agent with the express design of getting petitioner

to incriminate himself could not have failed, once again, to

lessen petitioner’s chance for acyuittal under the indict-

ment as a whole.

(d) Perhaps the single most striking instance of these

police tactics aimed at tricking petitioner into incrimi-

nating himself occurred in connectican with his client Leon

R. Cohen, who was involved in Counts One, Three, Four

and Fourteen of the indictment as to all of which counts

the Jury disagreed. On April 16, 1960, Cohen was sent

to petitioner’s office by Assistant District Attorney Clark

to stage another of these deceitful conversational scenes

(623). The prosecutor had Cohen accompanied by a police-

woman, Ruth Smith, who posed as Cohen’s wife (625-629,

913-916). Leon Cohen and ‘‘Mrs. Cohen’’ engaged peti-

tioner in a conversation concerning which both of them

testified in this trial (see pages cited supra in this para-

graph). This conversation, again, must indubitably have

lessened petitioner’s chance for an acquittal under any and

all of the counts of the indictment despite the Jury dis-

agreement on the Leon Cohen counts, because of the Court’s

astounding authorization to the Jury to consider the con-

spiracy proofs as grounds for conviction under all of the

substantive counts. Indeed, see specifically the Court’s

charge at 4176-4177, telling the Jury that the policewoman

Ruth Smith’s testimony could be used as ‘‘corroboration’’

of any or all of the counts charging subornation or at-

tempted subornation.

In these circumstances, there comes into play the rule

of the Massiah and Escobedo cases, supra. The admission

in evidence of the above-described proofs of staged and

eavesdropped conversations worked a denial of petitioner’s

constitutional right to counsel and due process.

6. In the event of the granting of certiorari we respect-

fully reserve the issues as to the Fourth Amendment search

and seizure aspects of the branch of the case discussed

under our item no. 5, supra, in these ‘‘ Reasons For Grant-

ing The Writ’’.

CONCLUSION

It is respectfully submitted that this petition for a

writ of certiorari should be granted.

Respectfully submitted,

Maurice Epe.saum

Attorney for Petitioner

Myron M. Sparber

Pes sa et cremate haat

APPENDIX A

Judgment and remittitur of the Court of Appeals of

the State of New York herein sought to be reviewed.

COURT OF APPEALS

Srate or New YORK, ss:

Pueas in the Court of Appeals, held at

Court of Appeals Hall, in the City of

Albany, on the 11th day of March in

the year of our Lord one thousand

nine hundred and sixty-five, before

the Judges of said Court.

WITNEss,

The Hon. Cuarues S. Desmonp,

Chief Judge, Presiding.

Raymonp J. Cannon, Clerk.

Remittitur March 11, 1965.

No. 168

The People &c.,

Respondent,

vs.

Myron Sparber,

Appellant.

Be IT REMEMBERED, That on the 20th day of April in the

year of our Lord one thousand nine hundred and sixty-four,

Appendix A

Myron Sparber, the appellant in this cause, came here unto

the Court o* Appeals, by Maurice Edelbaum, xis attorney,

and filed in the said Court a Notice of Appeal and return

thereto from the judgment of the Appellate Division of the

Supreme Court in and for the First Judicial Department.

And The People &c., the respondent in said cause, after-

wards appeared in said Court of Appeals by Frank S.

Hogan, District Attorney.

Which said Notice of Appeal and the return thereto, filed

as aforesaid, are hereunto annexed.

Wuerevupon, The said Court of Appeals having heard

this cause argued by Mr. Maurice Edelbaum, of counsel for

the appellant, and by Malvina H. Guggenheim, of counsel

for the respondent, and after due deliberation had thereon,

did order and adjudge that the judgment of the Appellate

Division of the Supreme Court appealed from herein be

and the same hereby is affirmed.

And it was also further ordered, that the records afore-

said, and the proceedings in this Court, be remitted to the

Supreme Court of the State of New York, there to be pro-

ceeded upon according to law.

THEREFORE, it is considered that the said judgment be

affirmed, as aforesaid.

And hereupon, as well the Notice of Appeal and return

thereto aforesaid as the judgment of the Court of Appeals

aforesaid, by it given in the premises, are by the said Court

of Appeals remitted into the Supreme Court of the State

of New York before the Justices thereof, according to the

Appendix A

form of the statute in such case made and provided, to be

enforced according to law, and which record now remains in

the said Supreme Court, before the Justices thereof, &e.

Raymonp J. CANNON

Clerk of the Court of Appeais

of the State of New York

Court or APPEALS, CLERK °s OFFICE,

Albany, March 11, 1965.

I Heresy Certiry, that the preceding record con-

tains a correct transcript of the proceedings in

said cause in the Court of Appeals, with

the papers originally filed therein, attached

thereto.

[Sea]

Raymonp J. CANNON

Ylerk.

LIE 5 LN 7 PLETE OME ROLI CLES, BOUL in An Fav ou Pa ATR yo TEI RL ARENT Wn Be

APPENDIX B

Order granting motion to amend remittitur of Court

of Appeals.

b Mo. No. 378

—

The People Etc.,

Respondent,

vs.

Myron M. Sparber,

Appellant.

by.

Motion to amend the remittitur granted; the return of the

remittitur requested and, when returned, it will be amended

by adding thereto the following:

‘‘Upon the appeal herein there was presented and neces-

sarily passed upon an alleged denial of a fair trial in viola-

tion of constitutional process guaranteed by the fourteenth

amendment to the Constitution of the United States by the

refusal of the Trial Court to compel disclosure of certain

testimony given before the Coordinating Committee on

Discipline of the First Department which denial amounted

to a suppression of testimony which the defendant claimed

would prove exculpatory; by the trial judge’s refusal to

disqualify himself from the trial; by the District Attorney’s

control over the trial calendar and by the admission into

evidence of testimony and recordings made between the

defendant and his former associates and certain witnesses

and by the review in the Appellate Division since the crim-

2 BaP oe ahi Neeare sa te srnnn taneins” HRiaien |

[

Appendix B

inal prosecution had followed an investigation initiated by

the Coordinating Committee on Discipline which was in

effect the initiation of prosecution by the Appellate Divi-

sion, First Department, and, as such, disqualified that court

from reviewing the matter on appeal. The Court of Appeals

held that the appellant’s constitutional rights had not been

violated.”’

Raymond J. Cannon

Cierk, Court of Appeals

Albany, N. Y.

4/22/65

APPENDIX C

Copy of index of petitioner’s printed brief in the

Court of Appeals, showing points there raised, includ-

ing Federal questions.

“INDEX

Statement Under Rule 5531, C.P.L.R. ............

Statement of the Case Under Rule 5528(a)(3),

Ree EE ko +o aig AERA Kees Bee tl VEC es

abo

Summary of the Indictment and the Jury

IE 5555 0s GAs Cae ob ea eee yal

The Unusually and Perhaps Uniquely Pro-

longed Deliberations of the Jury; Introduc-

tory Suggestions As to the Reasons For The

Jury’s Difficulty in Agreeing On A Verdict

The Testimony And The Trial Proceedings

(Not Set Forth In This Statement of the

Case Because Fully Treated In the Argu-

WE I aio evoke chs ds ae See uk ease

ARGUMENT:

Potnt I—The judgment of conviction under Count

Ten (attempt to suborn Lewis Rice) should be

reversed because—

(A) there was insufficient legal evidence of

guilt for submission to the jury;

(B) the verdict is a compromise verdict of

the type which the law forbids (Code Cr. Pr.

§465) ;

prove the requisite corroboration of defendant’s

scienter of the falsity of the testimony of Lewis

Rice allegedly attempted to be suborned;

PAGE

ed aD le OR 6

Appendiaz C

(D) the defendant was denied a fair trial by

the charge to the jury that Rice was not an ac-

complice as a matter of law; and as a matter of

law the accomplice testiriony of Rice was insuffi-

ciently corroborated (Code Cr. Pr. §399) ;

(E) the defendant was denied a fair trial by

the Court’s prejudicially inaccurate description,

in its charge to the jury, of the testimony of the

witness Conrad;

(F) the defendant was denied a fair trial by

rulings as to the admission and exclusion of tes-

timony ;

(G) the defendant was denied a fair trial by

the Court’s refusal to compel disclosure of the

coordinating committee testimony of Daniel

Schliftman, whereby the Court sustained the

People’s suppression of testimony which the

defense claimed would prove excuipatory, and

thereby denying to the defendant due process of

law in violation of the Fourteenth Amendment

of the Federal Constitution ;

(H) the defendant was denied a fair trial by

the unqualified instruction to the jury that proofs

under the conspiracy count could be used to con-

vict under any or all substantive counts of sub-

ornation or attempted subornation ;

(1) the defendant was denied a fair trial as

to Count Ten by reason of prejudice arising

from the submission to the tury, and from the

trial, of all of the charges of the indictment as

a whole, and for all of the reasons advanced

under other points of this brief wherein it is

urged that the defendant was denied a fair trial

PAGE

Appendta C

eg Bee

Testimony of Lewis Rice .......... SeuweeiKe

Testimony of Eagle Supply Co. Bookkeeper

NS eae cect svar or nnsbackbasese

OS Sb oes ew Cee ee aeaeeneaeeesens

Curtailment of Cross Examination (Rice) and

Denial of Defense Requests for Discovery

(Schliftman-Baron) .....................

The Typewriter Testimony ................

Testimony of A. Alfred Conrad, Hsq. .......

The Defendant on the Stand ................

Motions to Dismiss (the Defense Emphasis

of the Issue of Lack of Corroboration) ....

The Court’s Charge to the Jury: The ‘‘Ho-

mogenization’’ of the Multi-Count Proofs ..

Exceptions to the Charge ..................

(A and (B)—Sufficiency of the Evidence For

Submiss'ou to the Jury, and Compromise

WHR, chan kcoen £05 canbe deresenssaances

CII asa inochi ck a es Gores sok

(E)—The Court’s Inaccurate Description to

the Jury of the Testimony of the Witness

SN Bibs ci csu ag cele hecee cheeses

(F) and (G)—Errors in Admission and Exclu-

sion of Testimony, Curtailment of the De-

fense Proofs, and Refusal to Compel Dis-

closure of the Coordinating Testimony of

TE, NE 8 Ska AR a se ceeded

WAS ia WO Se WEEE Ti nad. SORE

Appendiz C

(H) and (1)—The Prejudicial Intermingling,

in the Trial Proofs and in the Instructions

to the Jury, of the Charges and the Proofs

Under Other Counts of the Indictment with

Those Under Count 10 ..................

Pornt II—The judgment of conviction under Count

Five (subornation of Dr. Simon G. Igra) should

be reversed because—

(A) there was insufficient legal evidence of

In particular, the applicable requirements as to

corroboration of accomplice testimony were not

met;

(B) further as to the requirement of corrobo-

ration, the Court erroneously refused to instruct

the jury that witnesses (without whose uncor-

roborated testimony the defendant could not

have been convicted) were accomplices as a mat-

ter of law;

the Court’s instructions to the jury which ex-

pressly allowed tke jury to convict under Count

Five on the basis of evidence received under

other substantive counts plus hearsay evidence

received under the conspiracy count, there being

not one word in the instructions as to the need

to segregate such hearsay in deciding upon the

substantive counts;

(D) the defendant was denied a fair trial by

the admission of inadmissible hearsay on the

theory of ‘‘prior consistent statement.’’ This

ground is respectfully believed to involve error

PAGE

10a

Appendia C

so plain and so prejudicial as to constitute, in

itself and without more, absolute cause for

reversal ;

(E) the verdict was a compromise verdict of

the type which the law forbids ................

Introductory to Point IT ...................

The Testimony of Dr. Igra ......... asbenaiats

Dr. Igra’s Cross-examination ...............

The Testimony of Mrs. Igra ................

The Recall of Mrs. Igra on the Theory of

‘Prior Consistent Statement’ ...........

The Admission of the Levy-Igra Recording

on the Theory of ‘‘Prior Consistent State-

CE ak tad ard dadanesd dnawsaewksucues

| ere ee rare er ree eee Te

The Defense Motions as to Count 5.........

The Court’s Instructions to the Jury on the

Charges in the Indictment Concerning Dr.

Igra; Exceptions to the Charge ..........

The Accident Case Clients Under Count Five

(1) Richard Levy (Accident Case Client

eS a rrr

(2) The ‘‘Three Cohens’’ (Accident Case

Clients Under Count Five) ..........

(3) Anna Sellheim and Paul Zona (Accident

Case Clients Under Count 5) ........

PAGE

Sate Nee

lla

Appendia C

The Defendant Was Denied a Fair Trial by

the Erroneous Admission, on the Theory of

‘‘Prior Consistent Statement,’’ of Testi-

mony by Mrs. Igra to a Conversation With

Her Husband, and a Miniphone Recording

of a Conversation Between Dr. Igra and

Richard Levy, All Not in the Presence of

ie I os snk nc Si cekebeenesees

The Accomplice Status of Mrs. Igra (and Fur-

ther as to Lewis Rice’s Accomplice Status

In Its Effects on the Trial of Count Five) ..

The Compromise Character of the Verdict

MIO 5 ica hon Cos eee sid csi sass

Porst IIJ—(A) The defendant was denied a fair

trial as to both of the conviction counts by the

illegal intermingling of conspiracy and substan-

tive proofs which included hearsay that was in-

admissible even under the conspiracy count

alone?

(B) This prejudice was aggravated when it

is considered that the jury disagreed on the con-

spiracy count, so that the mass of conspiracy

hearsay which was allowed to infect the substan-

tive proofs turns out to have been itself of dubi-

ously just pertinency in the case as a whole ...

Pornt [V—The defendant was denied a fair trial

and due process of law at his trial, and he has

also been denied a fair due process forum of

Appellate review in the Court below because:

(1) This entire criminal prosecution has in

effect been initiated and fostered by instrumen-

talities of the judicial branch of the government

PAGE

104

107

109

128

A ppendiz C

of this State, the Coordinating Committee being

an official instrumentality of the Court below,

and said committee having acted since April

1960 in this case as an initiating and actively

participating arm of the prosecutor’s office. The

Court below was called upon to review the judg-

ment of conviction which is the product of the

official acts of the Court’s own official instru-

mentality. The judicial branch of the govern-

ment of this State has thus far been in the posi-

tion of both prosecutor and judge in this case.

(2) The defendant has been pursued in this

case with an official relentlessness amounting to

unconstitutional oppressiveness. The prosecutor

used his power of control over the Trial Calen-

dar in an unconstitutional manner so as to con-

front the defendant with the unjust alternative

of pleading guilty or of being forced to trial

before a hostile judge. The defense motion for

disqualification of the Trial Judge should have

been granted. The hostility and bias of that

judge were shown in the trial and in the sen-

I oak ah ee ois Sd ha eee cehaands

Introductory to Point IV ...................

The Coerdinating Committee’s Sponsorship

ee rr re

The Prosecutor’s Selection of a Hostile and

MEE SEU PD obs vc cece cea ccacees

PAGE

SEL AR AOE INE IE RN etc te Ne

13a

Appendix C

PAGE

Point V—The averments in the indictment that

Dr. Igra (Count 5) and Lewis Rice (Count 10)

were duly administered an oath before the Co-

ordinating Committee, avyerments which are es-

sential to the validity of the charges of suborna-

tion or attempted subornation, are of no legal

force or effect because no constitutienal, statu-

tory or otaer valid legal authority existed for

the administration of said oaths ...... Riswaieess 128

Pornt VI—The defendant was denied a fair trial

by the Court’s abuse of discretion in declining

to instruct the Jury under §428 Code Cr. Proc.

and in declining to discharge the Jury as being

ih iso Seki ek eee desk andiaes 133

Pornt VII—The defendant was denied a fair trial

by the way in which the Court marshalled the

NS eo eo a deeb eneaenue 134

Point VIII—The defendant was denied a fair trial

and his rights of due process of law, and he was

also denied his constitutional rights of counsel,

through the admission in evidence of testimony

and of alleged transcripts of deceitfully staged

and electronically eavesdropped conversations.

The defendant was prejudiced by these items

because they all formed part of an unconstitu-

tional design by the prosecution working in con-

junction with the Coordinating Committee se-

cretly and deceitfully to place the defendant in

positions in which he might unknowingly in-

criminate himself. These tactics were improper

and unconstitutional because the defendant was

a prime suspect of criminal investigation at

the times in question and he was therefore en-

titled to his constitutional rights of counsel and

epee rrr ere rrr err rere 135

a ele wir kee + ee Ae 140”’

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.