# Amicus Curiae Brief — Saul I. Birnbaum v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1969
- **Citation:** 394 U.S. 922

## Text

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SUPREME COURT. U. &
1968

JOHN F. DAVIS, CLERK

In THE

Supreme Court of the United States
Octroser Term, 1968

No. 792
—-
Sau I. Brenzavum,
Petitioner,
v.
Unitep States oF AMERICA,
Respondent.

BRIEF, AMICUS CURIAE, SUBMITTED, WITH THE
CONSENT OF THE SOLICITOR GENERAL, IN SUPPORT
OF THE ABOVE-CITED PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

Wituam J. vANDEN HEUVEL AND
Cartes G. MoerDLeR

Attorneys for Petitioners—Amicus Cu-
riae, St. Augustine’s Episcopal School,
The United Cerebral Palsy Association
of Nassau County, Inc., The Hillel
School of the Shore Area, The Brook-
lyn Philharmonia, Inc., and Pride of
Judea.

61 Broadway

New York, New York 10006

INDEX

Opinions Below

Jurisdiction

Questions Presented

Constitutional Provisions, Statutes and Rules Involved

Statement

A. The Circumstances Giving Rise to This Pro-
ceeding

B. The Issues Presented Meriting the Grant of
Certiorari

1. In each of their component parts the sentence
and the trial court’s actions in connection there-
with were invalid and in conflict with prior
decisions of this Court and other Circuits

(a) The invalid nature and form of the sen-
tence

(b) The resultant effects of such sentence

2. Viewed as a whole, the sentence and the events
flowing therefrom were not merely violative of
provisions of law, they violated elementary
principles of even-handed justice

C. The Remedy

ConcLusIon

Oh a a me ae as

PAGE

Arpenpix A—Letter dated December 22, 1967 from
-Dr. Sidney Marks, Executive Director, United
Cerebral Palsy Association of Nassau County, to _
Judge Irving Ben Cooper A-1

Apprnpix B—Letter dated December 21, 1967, from
Father W. G. Henson Jacobs, Principal of St.
Augustine’s Episcopal School, to Judge Irving Ben
Cooper B-1

Aprenpix C—Letter dated December 22, 1967, from
Rabbi Morris Schmidman, Dean of Hillel School
of the Shore Area, to Judge Irving Ben Cooper .... C-1

Lppenpix D—Letter dated December 22, 1967, from
Family Court Judge Maurice P-rnhardt, to vudge
Irving Ben Cooper D-1

Appenpix E—Letter dated December 23, 1967, from
Arthur Gottlieb, Vice President of the Menorah
Home and Hospital for the Aged and Infirm, to
Judge Irving Ben Cooper E-1

Aprenpix F—Letter dated November 13, 1967, from
Appellate Division Justice George Beldock, Presi-
dent of Brotherhood-In-Action, to Judge Cooper F-1

Cases:
Archer v. Snook (N.D. Ga. 1926) 32

Broadus v. United States, 317 F.2d 212 (5th Cir. 1963) 32

Buhler v. Pescor, 63 F. Supp. 632 (W.D. Mo. 1945) ...... 32

Butler v. District of Columbia, 346 F.2d 798 (D.C.
Cir. 1965) 24, 25, 33, 36, 37

PAGE

Campbell v. Alderhold, 36 F.2d 366 (N.D. Ga. 1929) ....31, 32
Communist Party v. Subversive Activities Control

Bd., 351 U.S. 115 (1956) 40
Corey v. United States, 375 U.S. 169 (1963) .......... 24, 27, 28
Douglas v. California, 372 U.S. 353 (1962) 29
Fay v. People of State of New York, 332 U.S. 261,

67 S.Ct. 1613, 91 L.Ed. 2043 (1947) 25, 39

Hassell v. United States, 287 F.2d 646 (9th Cir. 1961) 38
Hollandsworth v. United States, 34.F'.2d 423 (4th Cir. .
1929) 32

Machibroda v. United States, 368 U.S. 487, 32 S.Ct.
510, 7 L.Ed. 2d 483 (1962) 37

Marano v. United States, 374 F.2d 583 (1st Cir.
1967) 24, 29

McHugh v. United States, 230 F.2d 252 (1st Cir. 1956),
cert. denied 351 U.S. 966, 76 S.Ct. 1030, 100 L.Ed.

1486 31, 32
McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87

L.Ed. 819 (1948) ..... 25, 35, 39, 40
Nix v. James, 7 F.2d 590 (9th Cir. 1925) 31

North Carolina v. Pearce, 397 Fed. 253 (4th Cir. 1968),
cert. granted October 29, 1968 (No. 413, Oct. Term,

1968) 24, 29
Offutt v. United States, 348 U.S. 11 (1954) ................ 26, 40
Patton v. State of North Carolina, 381 Fed. 636 (4th

Cir. 196;'), cert. denied 390 U.S. 905 (1968) ............ 24, 29

People v. Price, 24 Ill. App. 2d 364, 164 N.E. 2d 528
(Ill. App. 1960) 37

Ee eet =

iv
PAGE

Reeves v. United States, 35 F.2d 323 (8th Cir. 1929)... 31

Saldana v. United States, 365 U.S. 646, 647 (1961) ....24, 25,

39, 40, 41

Scalia v. United States, 62 F.2d 220 (1st Cir. 1932) ... 31
Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2

L.Ed. 2d 579 (1958) 37

State v. Zolantakis, 70 Utah 296, 54 ALR 1463 (1927) 38

Thiel v. Southern Pac. Co., 328 U.S. 217 (1946) ........ 40
Thomas v. United States, 368 F.2d 941 (5th Cir.
1966) 24, 25, 30, 37
Toyosaburo Korematsu v. United States, 319 US. 432,
63 S.Ct. 1124, 87 L.Ed. 1497 (1943) 32, 43

United States v. Behrens, 375 U.S. 162 (1963) ...... 24, 27, 28
United States v. Birnbaum, 373 F.2d 250, 265, 268-69

(2d Cir. 1964) 20
United States v. Gilligan, 256 F.Supp. 244 (S.D.N.Y.
1966) . 30

United States v. Morse, 344 F.2d 27 (4th Cir. 1965) .... 32
United States v. Mulligan, 48 F.2d 93 (2d Cir. 1931) .... 32
United States v. Taylor, 278 F.2d 646 (9th Cir. 1961)... 37
United States v. Wiley, 267 F.2d 453 (7th Cir. 1959)

24, 25, 31, 33
United States v. Wiley, 278 F.2d 50t) (7th Cir. 1960) .31, 37

Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85

L.Ed. 820 (1940) 37
Weber v. State, 58 Ohio St. 616, 51 N.E. 116 (Ohio

Sup. Ct. 1898) 37
Weems v. United States, 217 U.S. 349 (1999) ................ 33

Worcester v. Commissioner of Internal Revenue, 370
F.2d 713 (1st Cir. 1966) 30

PAGE

Yates v. United States, 308 ¥.2d 737 (10th Cir.

1962) 32

Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2
L.Ed, 2d 837 (1958) ..... 25, 39

Constitutional Provisions:

United States Constitution

Fifth Amendment 4, 24
Sixth Amendment .. 4, 24
Kighth Amendment +

Rules:

Federa’ Rules of Criminal Procedure

Rule 35 2, 4, 20
Rule 38(b) 30
Rule «6 30

Statutes:

18 U.S.C. §1408(b) 28

18 U.S.C. §$4208(b) 4, 27

28 U.S.C. §1254(1) 2

Other Authorities:

ABA Project on Minimum Standards for Criminal
Justice, Advisory Committee on Sentencing and Re-
view, Standards Relating to Sentencing Alterna-
tives and Procedures, Section 2.3(e) (1967) ........ 26, 35

PROOF EB ry

RF PRES LT PLR Oe

TET ED PR Lee

PAGE

Canon 21 of the Canons of Judicial Ethics 33
Due Provess in Sentencing, 81 Harvard Law Rev. 821

(1968) 33, 34, 35
Herlands, When and How Should a Sentencing Judge

Use Probation, 35 F.R.D. 487, 497 (1964) ................ 26
The Judge-Made Supervisory Power of the Federal

Courts, 53 Geo. L. J. 1050 (1965) 39

The Supervisory Power of the Federal Courts, 76
Harv. L. Rev. 1656 (1963) 39

In THE

Supreme Court of the United States
Ocroser Term, 1968
No. 792
—

Savuu I. Brmnsavum,
Petitioner,
v.
Untrep States or AmeEnrtca,

Respondent.

sali

BRIEF, AMICUS CURIAE, SUBMITTED, WITH THE
CONSENT OF THE SOLICITOR GENERAL, IN SUPPORT
OF THE ABOVE-CITED PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

On December 3, 1968, Saul I. Birnbaum (Birnbaum)
petitioned this Court to issue a writ of certiorari to review
a judgment of the United States Court of Appeals for the
Second Cirenit entered October 4, 1968 in a consolidated
appeal entitled United States of America, Appellee, v. Saul
I, Birnbaum, Appellant (Docket Nos. 32063-32064).

With leave of the District Court and the Court of Ap-
peals, St. Augustine’s Episcopal School, The United Cere-
bral Palsy Association of Nassau County, Inc., The Hillel
School of the Shore Area, Pride of Judea and The Brook-
lyn Philharmonia, Inc., appeared below amicus curiae
in support of Birnbaum’s application and appeal. With

the consent of the Solicitor General of the United States,
they file this brief, amicus curiae, in support of Birnbaum’s
aforesaid petition.

Opinions Below

The opinion of the Court of Appeals for the Second
Circuit was issued on October 4, 1968, but is as yet unre-
ported. It is annexed to the Birnbaum petition as Ap-
pendix A. The orders of the United States District Court
for the Southern District of New York dated (1) Decem-
ber 6, 1967, denying Birnbaum’s motion to reduce and sus-
pend sentence pursuant to Rule 35 of the Federal Rules of
Criminal Procedure, (2) January 4, 1968, adhering to the
decision embodied in the earlier order, and (3) January 27,
1968, denying an order to show cause why a writ of coram
nobis or in the nature of coram nobis should not be granted,
are contained in the record certified to this Court and are
set forth at pages A-12 to A-13 of Appendix A to the Birn-
baum petition.

Jurisdiction

The judgment of the Court of Appeals was entered on
“October 4, 1968. On October 23, 1968, Mr. Justice Harlan
granted Birnbaum an extension to December 3, 1968, of his
time to file his petition. This brief is filed with the consent
of the Solicitor Genera! of the United States. The juris-
diction of this Court is invoked under 28 U.S.C. §1254(1).

Questions Presented

Are a defendant’s constitutional rights violated, or are
the standards established by this Court under its super-
visory powers to assure the fair administration of justice
violated :

(1) where probation was conditionally promised by the
trial court at the time of sentencing if the defendant em-
barked upon a specified program and where that judicial
promise was not kept alihough the defendant complied in
every respect with the trial court’s edict respecting such
program, and such compliance has never been challenged;
and

(2) where such sentence in the circumstances of this
case offends “civilized standards of procedure” and prin-
ciples of the “fair administration of justice” in that (i)
a defendant is, by the prospect of avoiding possible im-
prisonment, improperly enticed into embarking upon an
extra-judicial course which he has no legal obligation to
pursue and (ii) substantial and responsible segments of
the community are, by the inducement that the: can
thereby advance the public interest in the rehabilitation
of criminal offenders, invited by the Court into joining
in such program, only to find that, though rehubilitation
has been effected, the promise is not to be fulfilled for
reasons never specified, thereby compromising the integrity
of the judicial process.

Constitutional Provisions, Statutes and
Rules Involved

Involved here are the Fifth, Sixth and Eighth Amend-
ments to the Constitution of the United States; 18 U. S. C.
§4208(b), 72 Stat. 845; and Rule 35 of the Federal Rules
of Criminal Procedure, the texts of which are set forth
in the Appendix to the Birnbaum petition to this Court.
Additionally, there is involved the supervisory authority
of this Court over the administration of justice in the
federal courts.

Statement

Six charitable, social service and civic organizations ap-
pear amicus curiae in support of the Birnbaum petition.
They do so because the trial court (United States District
Court Judge Irving Ben Cooper) by its sentence of Birn-
baum invited them to become the vehicle for Birnbaum’s
rehabilitation. As found by the Court of Appeals, the
charities were, by Judge Cooper’s statements at sentencing
and his subsequent actions, led to believe that probation
was promised, if not already conditionally granted, pro-
vided only that the rehabilitation program proved success-
ful (A-8, esp. n. 5*). The standard established by Judge
Cooper to measure the success of the program was ex-
pressly stated to be a showing that Birnbaum had realigned
his sights and devoutly wished to give a hunk of nimself
and of his wealth to doing with constancy those acts which
would help his fellow Americans and at the same time en-
hance his personal well being immeasurably (A-3). Against

* References preceded by “A-” are to pages of Appendix A to
the Birnbaum petition, at which pages is set forth the opinion of
the Court of Appeals.

that standard, the charities, in recognition of their re-
sponsibility to society, initiated the program. They in-
volved Birnhaum in their activities and as increasingly he
demonstrated by his deeds that he devoutly wished to
meet the court’s standards his responsibilities were en-
larged, as was the charities’ reliance upon him in the dis-
charge of their functions. He gave of his wealth in full
measure. We are not here, however, simply because by so
doing he met that standard set by the court. Neither are
we here because for more than eighteen months he has
given so fully of his time, effort, energy and imagination,
although in so doing he has far exceeded that standard
set by the court. We appear as amicus curiae because by
his deeds Birnbaum has to this day continued to demon-
strate that he is prepared with constancy to perform, as
he has performed, those acts which will really help his
fellow Americans and thereby enhance his own well being
immeasurably. We appear as amicus curiae because we
know from continuing experiences over an eighteen month
period that Birnbaum has, indeed, realigned his sights and
because we are confident that he will continue to act as a
useful and constructive member of society not merely dur-
ing the term of his promised probation but for the re-
mainder of his life.

By every objective criterion, Birnbaum has merited the
promised probation held out to him by the trial court. By
every objective criterion, Birnbaum has merited the con-
fidence of the charities as spokesman for society and they,
in turn, have the duty to remind the Court, if reminder be
necessary, that even handed justice compels that the prom-
ise of probation made to the charities and to Birnbaum
now be honored. In so doing the charities do not urge
that Birnbaum escape punishment for the crime of which
he stands convicted. Rather, they urge that the punish-

RRNA earth ie al ei Sega a RIN EEE VD Sr ois OR

6

ment be that which the trial court found at sentencing to
be appropriate under all the circumstances, namely the
promised probation.

A. The Circumstances Giving Rise to This Proceeding.

1. The Court’s involvement of the charities in its
program to rehabilitate Birnbaum.

The charities first became involved with Birnbaum and
with these proceedings in May, 1966.* New York State
Supreme Court Justice Louis B. Heller, long a leader in
the civic and community life of New York, then approached
United Cerebral Palsy Association, Brotherhood-In-Action
and Menorah Home & Hospital for the Aged and advised
them fully of the circumstances of Birnbaum’s. conviction
and of the precise text of Judge Cooper’s statements at
sentencing. Specifically he called to their attention Judge
Cooper’s remarks at sentencing that Birnbaum had “not
accepted the jury’s verdict and faced up to its import”;
that he protested his “innocence” and was “on the way to
appeal”; that Judge Cooper had expressly stated that in
his opinion Birabaum clearly was not “a callous, insensi-
tive human, one totally devoid of decent behavior”; that
“I [Judge Cooper] do not regard you as beyond recall”;
that Birnbaum certainly was not “beyond rehabilitation”;
but that, in view of his pending appeal, “now is not the
time to explore that phase”. Justice Heller called to the
charities’ attention and they expressly recall then noting
Judge Cooper’s ruling at sentencing that “[fJor the pres-
ent, then, in the light of your f[rJame of mind, let me
just add that if your conviction is sustained, this Court

* All of the factual statements herein were found, without chal-
lenge, to be correct by the Courts below and, indeed, they were
incorporated in substantial part in the opinion of the Court of
Appeals.

7

might, and I emphasize might, upon an impressively con-
vincing showing that you have realized, or rather realigned,
your sights and devoutly wish to give a hunk of yourself
as well as your wealth tc doing with constancy those acts
which will really help your fellow Americans and at the
same time enhance you{r] personal well being immeas-
urably, I say this Court might consider ... a program of
rehabilitation without confinement as provided for by 18
United States Code, Section 3651.” Alternatively, and “for

all these reasons”, a one year term of confinement would
issue.

Justice Heller told the charities that following sentenc-
ing he had met with Judge Cooper, that at Judge Cooper’s
suggestion he had agreed to act as Birnbaum’s “unofficial
probation officer” * and that the two Judges had agreed
on a basic pattern for Birnbaum’s rehabilitation along the
lines proposed by Judge Cooper at the sentencing. Justice
Heller added that, subject to the approval of those organ-
izations, he and Judge Cooper had agreed that Brother-
hood-In-Action, United Cerebral Palsy and Menorah Home
& Hospital for the Aged were appropriate organizations in

*'In the sentencing statement Judge Cooper had referred to
Justice Heller as one who had faith in Birnbaum and seemed
genuinely concerned about his fate. Birnbaum, accordingly, went
promptly after sentencing to Justice Heller to seek his advice
to how best to comply with the course thus charted by Judge

ooper.

After reviewing the minutes of sentencing, Justice Heller, in
turn met with Judge Cooper (with whom he had served on the
New York City Court of Special Sessions), and pointed out to him
that Birnbaum felt he required guidance in determining the means

for complying with Judge Cooper’s directive. Judge Cooper then
told Justice Heller:

“Well, if he doesn’t know, why don’t you guide him? You
have had a great deal of experience in charitable endeavors.

So why don’t you act as his unofficial probation officer and
show him the ropes.”

Justice Heller agreed to act in that capacity.

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BR bata Hain sce ll omen MY Se RRL OS ct RIL ell 9. Bie Ai acs re «

8

whose programs and activities Birnbaum should become
involved.

Against that background, Justice Heller specifically in-
quired whether, in light of those facts and particularly
Judge Cooper’s promised rehabilitation-probation pro-
gram, the charities would accept Birnbaum’s involvement
in their activities.

Following that report and inquiry, each of the charities
separately conducted lengthy personal interviews with
Birnbaum to determine, in the words of Presiding Jus-
tice George Beldock of the Appellate Division of the New
York State Supreme Court and founder of Brotherhood-
in-Action, “whether he [Birnbaum] could fit into the struc-
ture of ‘rehabilitation’ so poignantly expressed at the time
of sentence.” (See Appendix F hereto). The organizations
then agreed to accept Birnbaum and to involve him in
their activities, relying upon Judge Cooper’s statements at
sentencing. The organizations agreed thus to participate
because they viewed it to be their responsibility to the
Courts and society to partake in, as viewed by Justice
Beldock, an approach that was “a pioneering, novel and
humane one—truly in the best tradition of our new con-
cept of sentencing psychology.”

St. Augustine’s Episcopal School in the Bedford-Stuy-
vesant section of Brooklyn, Pride of Judea, Hillel School
and the Brooklyn Philharmonia became involved with Birn-
baum and these proceedings under slightly different cir-
cumstances. At or about the time Justice Heller was meet-
ing with the group of charities he and Judge Cooper had
agreed to invite to participate in Birnbaum’s rehabilitation,
Birnbaum sought out for himself these four additional
organizations, thereby to demonstrate that he approached

Natt nce LR SEI til lite

9

the opportunity offered him by Judge Cooper as a serious,
full-time and meaningful path to achieve the rehabilita-
tion which Judge Cooper had prescribed. Those organiza-
tions were similarly advised of Judge Cooper’s sentencing
statements, the charted program of rehabilitation-proba-
‘tion and, based thereon and following lengthy interviews
with Birnbaum, they too agreed to involve Birnbaum in
their activities. As hereinafter more fully appears, Justice
Heller was advised by Birnbaum of the additional activities
he had thus undertaken and Justice Heller reported
thereon and secured approval thereof from Judge Cooper.

2. The Rehabilitation-Probation Program. Having thus
committed themselves to become the vehicles for Birn-
baum’s rehabilitation, the organizations assigned to him
specific and, from their viewpoint, important tasks. They
did so, as observed by Justice Beldock on behalf of Brother-
hood-In-Action, against the background that the course
charted by Judge Cooper “presented somewhat of a chal-
lenge for me, for our cause and for society in general.”

The tasks assigned Birnbaum were many, varied and
time consuming, involving, over a period of some 18 months,
an average of two to three full working days each week.
Additionally, Birnbaum contributed $85,000 to the various
organizations, pledging an additional $25,000 to help meet
their pressing needs.*

(a) United Cerebral Palsy Association of Nassau County.
This organization provides teaching, rehebilitation and
medical services to Cerebral Palsy sufferers.

* Although not before this Court on this record, Birnbaum has
continued to give a major portion of his time, effort and imagina-
tion to these charities, as well as significant additional sums of
money.

10

Birnbaum’s activities while undergoing “rehabilitation”
through the aegis of the Association were, as appears from
Appendix A hereto, of such magnitude that they merited
his election as a Director of the Association with full knowl-
edge of all concerned as to the circumstances of his in-
volvement. Such activities were reported to Judge Cooper
in a letter addressed to him under date of December 22,
1967, by Dr. Sidney Marks, Executive Director of the As-
sociation (Appendia A hereto), a portion of whick appears
below* :

“

“Saul Birnbaum for more than a year has deeply
involved himself in our efforts in behalf of cerebral
palsied children and adults. Your admonition to Mr.
Birnbaum—opening, as it did, new and to him un-
known vistas of communal service—initiated a pro-
gram of rehabilitation for Mr. Birnbaum so effective,
imaginative and novel that it has commanded the re-
spect and enthusiastic endorsement of those of us wio
have come to know of it.

It is my sincere belief that the whole of the story cf
Mr. Birnbaum’s communal efforts have not been told
to your Honor. I, for instance, know that no one has
ever approached me nor anyone at the Center, to learn
from us those facts which I am sure your Honor
would want to know about Saul Birnbauwm’s endeavors
during the past year or more; the knowledge of which

* Each of letters from the several charitable and social services or-
ganizations referred to herein were directed to Judge Cooper follow-
ing his peremptory decision of December 6, 1967 that the sentence of
imprisonment be executed forthwith, and in connection with the
unsuccessful motion for reconsideration thereof. As herein more
fully appears, none of the organizations had then, or at any sub-
sequent point in time, been contacted by the official Court proba-
tion officer to whom Birnbaum had reported, nor, despite their
request therefor, were they ever afforded the opportunity to report
orally and in detail to the Court upon the rehabilitation program
in which they had thus become involved by the actions of the Court.

OR IN Cet RI ttn, PEARL DE DT

11

facts I am sure your Honor would consider important
in the making of a determination.

You have provided living proof, Sir, that there are
no obstacles which cannot be overcome to restore a
person as a resource to the community. I most re-
spectfully urge you to reconsider your most recent
decision [and] to permit the continuation of Mr, Birn-
baum’s rehabilitation process, to his and the commu-
nity’s immeasurable benefit. I ask your Honor to
consider what Saul Birnbaum has already done and
can do, for us.

No consideration of the effectiveness and the wisdom
of your Honor’s prescription for rehabilitation can be
complete unless it includes our experience with Mr.
Birnbaum at Cerebral Palsy. With his guidance,
through his foresight, imagination, and because of his
deep concern with cur problem, we are moving toward
our goal when the handicapped and their families will
have been relieved of one of the greatest sources of
their anguish.

When Saul Birnbaum first came to our center, he
met many of the parents whose daily lives are affected
by the pain and the suffering of their cerebral palsied
children. Birnbaum spoke to these parents, and quickly
recognized that the heaviness of their hearts and their
day-to-day anguish, however, terrible, was less than
their overwhelming concern for the future of their
handicapped children. Somehow, they felt, they could
cope with the present, and so long as they lived, some-
how provide for the care of their youngsters. But they
are overwhelmed by the contemplation of the future.
Too often we hear the heartbreaking question, ‘What
will happen to our children when we are gone? Who
will take care of them?’ The brutal fact is, Jadge
Cooper, that nowhere is there a full-time residential
care facility for the cerebral palsied.

Saul immediately suggested, fully committed, and
pledged himself to the establishment of a full-time resi-
dential and treatment center for palsied orphans. At

AR et BPTI iE 51 12 ss Se re Detlet that LnAAIS S tk A e rent aT mci net

12

ounce he set in motion the machinery to plan and build
the necessary 1esidential center for these tragedy-
stricken people. He has devoted countless hours to
this task. The program embraces a new center that
will provide for the social, medical and rehabilitative
needs of the palsied. So diligent has his work on this
experimental program been, that we are already close
to the start of construction.

We sincerely believe that this center will be a model
for the entire country. For the first time, the multi-
handicapped will face the future without fear of total
abandonment.

In addition to the residential center, Saul has de-
voted considerable time to the expansion of our medi-
cal wing. Cur Medical Center is a key portion of our
facilities. We are planning a major expansion of this
medical wing, with provisions for added staff and
patients.

Despite the many problems and tensions of this past
year, we have made significant advance in the area of
attaining financial security. Much of this progress has
been a result of Saul Birnbaum’s direct efforts. His
studies of the problem and his -ecommendations have
proven invaluable. The demauds upon Saul’s time
have been great; there have been frustrating and in-
numerable committee meetings, phone calls and con-
ferences, which only a charity can command and the
charitably-inclined can provide. Saul Birnbaum has
given unstintingly of himself in this endeavor. He
assumed the chairmanship of our Journal, which has
just come to a successful conclusion. The funds raised
through his efforts are making it more possible for us
to do our job at Cerebral Palsy.

I am sure that when your Honor reviews Birn-
baum’s massive effort in our behalf—the establish-
ment of the residential center, expansion of our
Medical Wing, creation of a program for endowment
funds, and his contribution of time and money to help

13

solve our financial problems, you will agree with me
that Mr. Birnbaum is a man not only of ability, but
of true compassion and dedication.

It would be impossible for me to recount all that
Saul Birnbaum has meant to us. The road, of our
cerebral palsied and their families, is a long and hard
one to travel, but the goal makes the difficult journey
worth while. I most sincerely ask that you help us by
exercising your judicial power with compassion, and
perinit Saul Birnbaum to continue his good work with
us.” (Emphasis supplied).

(b) St. Augustine’s Episcopal School, this well-known in-
stitution, located in the heart of the Bedford-Stuyvesant sec-
tion of Brooklyn, educates mure than 300 Negro children
drawn primarily from ove of the nation’s most critical pov-
erty areas. There, Birnbaum helped in the development of
curriculum and community service programs, aided in the
reorganization of its school vamp facilities, pioneered in the
development of an intensive remedial reading program and
played the primary role in the maintenance and expansion
of the school’s facilities. Because of his labors and merit
and with full knowledge of his background and the cir-
cumstances under which he became involved in the works
of St. Augustine’s, Birnbaum was designated a member of
the School’s Board of Advisors, serving cn that Board with
the Brooklyn District Attorney and an Assistant Secretary
of State of the United States. More importantly, Birn-
baum merited by his deeds the designation as St. Augus-
tine’s “Man of the Year” for 1967, a particular honor for
a white man in a black community at a time when Bed-
ford-Stuyvesant, like other ghetto communities, was torn
by racial strife. The children of St. Augustine’s were so
advised (infra, p. 22) and they in turn conveyed the mes-
sage of hope to others in their community. Attached hereto

14

as Appendix B is a copy of a letter written on December 21,
1967, by Father Jacobs, the Principal of St. Augustine’s,
to Judge Cooper reporting on the rehabilitation of Birn-
baum and his continuing involvement in and importance to
St. Augustine’s and those it serves.*

(c) Hillel School. At the Hillel School, an institution de-
signed to provide a thorough Jewish education combined
with a full program of secular studies, Birnbaum reorgan-
ized the school’s financial structure, led efforts to meet the
school’s increasing enrollment, acted as Chairman of its
Endowment and Development Fund Program, assisted in
the construction of additional classroom facilities and se-
cured the development of a scholarship program to which
he made significant contributions. His devotion, in-
terest and industry led to his knowing election to the
School’s Board of Directors. Attached hereto as Appen-
dix C is a copy of the letter written to Judge Cooper on
December 22, 1967, by Rabbi Morris Schmidman, Dean of
the Hillel School.

-)

* As we have previously observed, each of the charities, by
reason of the trial court’s promise and Birnbaum’s meaningful
efforts, immersed him deeply in their activities and increasingly
relied upon him. That Birnbaum became and is a mainstay of
the charities is illustrated by the following excerpts from Father
Jacob’s above-mentioned letter to Judge Cooper:

“... We wanted you to know that we are distraught over the
decision [to now imprison Birnbaum despite his rehabilitation
aad the promised probation] and are praying that he may be
spared to continue his work. We are so desperately in need
of his advice and assistance: If we do not now conclude the
transaction for our new building, we will forever lose the
opportunity. We rely so heavily on Saul.

If you send him to prison, our school plans will collapse.
Our fond Lope of many years will again become a frustrating
hope instead of a reality.”

Birnbaum has to this day continued to aid St. Augustine’s in its
efforts to provide both the facilities and the teaching tools to meet
the ever-increasing educational needs of the Bedford-Stuyvesant
community.

Qww—-

. 5 Se eee eS
ND Re ew nike tn ta oI (tl Et Ton

15

(d) Pride of Judea. This organization is one designed
to meet urgent community needs in the areas of child and
family welfare, particularly in connection with emotionally
disturbed children. As soon as Birnbaum had beer ac-
cepted to become involved in the works of Pride of Judea,
the President of that organization, Judge Maurice Bern-
hardt of the New York State Family Court, designated
Birnbaum to its Professional Services Committee and as-
signed him the responsibility for development of a coor-
dinating council of all agencies providing assistance to
emotionally disturbed and retarded children. His efforts
also included the financing and establishment of a clinic
for the treatment of a condition known as “school phobia”,
a clinic which seeks to provide corrective treatment for
emotionally disturbed children and to condition them for
their return to the public school system. Birnbaum’s many
contributions to this organization were recognized by
the designation of the special classes for “school phobia”
in his honor, his being designated as guest of honor for
one of its major affairs and the suggestion by the Board
of Directors that he be a 1967 medal recipient. Attached
hereto as Appendix D is a copy of Judge Bernhardt’s
written report to Judge Cooper, dated December 22, 1997,
detailing Birnbaum’s continuing and massive efforts on
behalf of Pride of Judea under the rehabilitation program
and Judge Bernhardt’s views on the success thereof from
the viewpoint of society and Birnbaum. As stated by
Judge Bernhardt:

“With Mr. Birnbaum, it has been my experience
that no task is ever too small or too great for him to
tackle and he has devoted a major portion of his time
to us on a continuous basis. Our organization’s out-
standing men and women, have great regard for Mr.
Birnbaum and find him almost indispensable as a
leader and supporter of our very important service.

16

It would indeed be a tragedy for our children if
Mr. Birnbaum’s efforts were interrupted. His confine-
ment would remove one of our most ardent supporters
and deal a terrible blow to our programs. I do not
refer to Mr. Birnbaum’s financial generosity alone. I
refer to his active participation, guidance and wisdom
in helping us plan for the future.”

(e) Menorah Home & Hospital for the Aged. Through
its Brooklyn Center, this organization provides services to
the aged and offers housing and hospital facilities, psychi-
atric training and service programs. Following initial in-
doctrination in the works of the institution by Justice Hel-
ler, Birnbaum was assigned, among other functions, overall
fund-raising responsibilities and, through stint of effort,
Birnbaum raised three-fold the sum previously secured.
Birnbaum’s knowledge and technical ability in the nurs-
ing home field, as well as his expertise in the areas of
finance and administration, were employed by him on
Menorah’s behalf as part of the continuing rehabilitation-
probation program. Attached as Appendix E hereto is a
copy of the written report made to Judge Cooper, on
December 23, 1967, by Arthur Gottlieb, Vice President of
Menorah.

(f) The Brooklyn Philharmonia, Inc. is devoted to the
cultural development of underprivileged children. Shortly
after his introduction to its activities, Bimbaum sponsored,
planned and financially supported a concert for 1,500 under-
privileged children. His significant contributions in terms
of time, effort and moneys—including the development of
a program contemplating free music instruction for tal-
ented Sut underprivileged children—was recognized by his
appointment as a Director of the organization.

(g) Brotherhood-in-Action. As previously observed this
organization was founded over a quarter century ago by

sain SD nti tals AS Si ie te tls” Alen ERAT aR

17

Justice Beldock to foster, through various concrete pro-
grams, means for dealing with racial, religious and inter-
group tensions, and their underlying causes. Birnbaum
actively participatea in the organization’s work toward de-
velopment of low cost housing.

Perhaps the best summary of how the rehabilitation-pro-
bation program came to be initiated, the understanding of
the participants that it was a judicially sanctioned pro-
gram and that all of the participants therein clearly be-
lieved it had been successfully conducted from the view-
point of society as a whole, is stated in the letter writtea,
on November 13, 1967, to Judge Cooper by Justice Beldock,
a copy of which letter is annexed hereto as Appendix F.
As stated by Justice Beldock, an esteemed jurist and
humanitarian :

“His [Birnbaum’s] deep interest in our programs
and his willingness to serve and to contribute of his
time, effort and resources have been most gratifying.
Having observed his selfless zeal in our work and the
Sincere manner of his conduct and his endeavor to
serve his fellow man, I venture to predict that if per-
mitted he will continue throughout his lifetime to
take this type of genuine interest in causes such as
ours, and others, which seek to alleviate the suffer-
ing, the impoverished, the underprivileged and the
disadvantaged in our communities and in the nation.”

3. The “Unofficial Probation Officer’s” Report. The
foregoing discussion merely capsulizes the many, varied and
critically important efforts, in terms of time, imagination
and effort, expended by Birnbaum over a period of 18
months as part of the program launched by Judge Cooper.
On the average of several times a month, Birnbaum re-
ported to Justice Heller upon his activities, keeping him
apprised of his efforts to comply with Judge Cooper’s
directive. |

18

After the commencement of the program outlined above,
Justice Heller again met with Judge Cooper and reported
in substance: “As the unofficial probation officer of Birn-
baum, I would like to inform you that Birnbaum has be-
come actively and financially identified with the three
organizations we talked about and [is] putting his heart
and soul into all their activities.” Justice Heller also ad-
vised Judge Cooper of Birnbaum’s further efforts to dis-
charge the mandate by involving himself wholeheartedly
with further charitable activities through the vehicle of
St. Augustine’s and the other above-mentioned organiza-
tions, to the extent that he had become a maiustay of each
of those organizations. Judge Cooper replied: “That’s
good, that’s fine.”

On November 13, 1967, Justice Heller wrote to Judge
Cooper as follows:

“T respectfully submit this letter in the hope that it
will be of assistance to you in connection with the
defendant’s present application before you [Birn-
baum’s first application for reduction in sentence
pursuant to Rule 35 of the Fed. Rules of Crim. Proc.].

I am familiar with the statements made by you at
the time the defendant was sentenced. Mindful of the
perceptive and wise remarks you then uttered, I under-
took, as a friend, to help guide the defendant toward
a path of service and dedication to the community and
his fellow man. I introduced him to the leaders of
three (3) outstanding communal and charitable en-
deavors, but nct without first explaining to these men
the nature of his conviction, and of your statement.
These gentlemen, after meeting and talking with him
at great length on several occasions, eventually agreed
to invite him to participate in the charitable activities
with which they: were identified.

I know that Judge Rifkind will explain in detail
Birnbaum’s work with these organizations as well as

19

other charities with which he became associated on
his own. I might add that this was the only extent of
my participation in this rather unusual experience at
helping rehabilitate a man whese life in the past (as
you so properly assessed it) had been involved solely
with making money.

In carefully reviewing the whole picture, I am con-
vinced that he has undertaken, and is indeed accom-
plishing, a remarkable job. If permitted to continue
with these involvements, he should prove a useful,
dedicated and humanitarian servant of our society.

. .. [quoted textual matter omitted]

In summary, I would say that the defendant’s activ-
ities, since he was sentenced, clearly indicate a genu-
ine attempt on his part to rehabilitate himself along
the lines suggested. You will have before you sufficient
‘predictive data’ to guide you in your difficult decision.
I bespeak for the defendant your gifted intuition, in-
sight and imagination in evaluating the redemptive
qualities now no longer ‘latent’ but patently observable
in the activities of the defendant, and I urge you to
consider suspending his sentence.”

4. The Second Circuit Decision Affirming the Convic-
tion. While the above-mentioned program of rehabilita-
tion and “probation” of Birnbaum in conjunction with the
charitable and social service organizations was in progress,
Birnbaum proceeded to perfect his appeal, as Judge Cooper
knew he wouid. David W. Peck, formerly Presiding Jus-
tice of the Appellate Division of the New York State
Supreme Court and formerly President of the State Bar
Association, represented Birnbaum. As detailed in the
Birnbaum petition (Pet. p. 11*), Mr. Peck vigorously

* References preceded by “Pet.” are to pages of the Birnbaum
petition to this Court. Mr. Peck charged that Judge Cooper had
“turned advocate for the prosecution” and he characterized the
charge to the jury as “egregiously unbalanced”, “pious in expression

Be Ce ST LO SS eS

_ Wei citlhy a

20

challenged Judge Cooper’s conduct of the trial. On
February 10, 1967, some 10 months after commence-
ment of the probation-rehabilitation program, the Second
Circuit affirmed Birnbaum’s conviction, Chief Judge Lum-
bard dissenting and charging that the trial judge had, as
charged by Mr. Peck, abused his power, had stepped out
of his role as the trial judge and had been carried away
by his advocacy and made arguments which went beyond
those of the prosecution. United States v. Birnbaum, 373
F.2d 250, 265, 268-69. (2d Cir. 1964)*

5. The Proceedings to Reduce Sentence and Confirm
Probation. Following the denial of certiorari, 389 U.S.
837 (1967), Birnbaum moved, pursuant to Rule 35 of the
Federal Rules of Criminal Procedure, to reduce and sus-
pend the sentence based upon his total compliance with the
program charted by Judge Cooper. Despite their requests
therefor, the charitable, civic and social service organiza-
tions in whose activities Birnbaum had become involved
were denied the opportunity to be heard orally or to be
interviewed by the probation officer of the Court, However,
as previously observed, upon reargument of the Rule 35
application each of the organizations advised J udge Cooper
in writing that, pursuant to the program he had initiated,
they had involved Birnbaum fully and deeply in their ac-

and pernicious in emphasis”, “virulently prejudicial”, “obviously
improper and prejudicial”, “calamitous” and “grievously wrong”.
Mr. Peck maintained further that Judge Cooper “took off in ex-
temperaneous expression, gesturing and raising his voice as he
did”, that the charge contained “the vice of barbed implication”
and that one particular aspect of the charge—when Judge Cooper
gave his own “suggestion” that defendant “was up to his ears in
graft and corruption”—could scarcely have been worse”, “[y] et,

if possible, the court made it worse .. >. ”

* Even the majority was constrained to observe that “we might
not have expressed ourselves or ordered our charge as did the trial
judge”, supra, 373 F.2d 250, 265.

21

tivities, that he had zealously pursued the tasks assigned
him (and then some) and that in their view the goal sought
to be achieved—rehabilitation—had been realized.

The showing thus made that Birnbaum had in fact “re-
aligned his sights” and had “given a hunk” of himself
and of his wealth “to doing with constancy those acts”
prescribed by the Court was not and has never been re-
butted or challenged. The Government opposed the appli-
cation, however, op the ground that had Birnbaum con-
tinued to refuse to admit his guilt, emphasizing that
Birnbaum’s failure (as demonstrated by the appellate argu-
ments of his counsel) to appreciate the way the judge had
conducted the trial evidenced his bad character. Without
explanation, Judge Cooper directed forthwith execution
of the sentence, ignoring entirely the promised probation
and expressly omitting to find at any time that the rehabili-
tation and nrobation process he had initiated, and Birn-
baum’s conduct in connection therewith, had in any way
failed to meet the mark.

From that determination Birnbaum sought review in
the District Court for the Southern District of New York
by way of motion for a writ of error coram nobis, or in
the nature of coram nobis. The charitable and social ser-
vice agencies sought and were granted leave to intervene
in that proceeding and to submit a petition and memo-
randum, amicus curiae, in support of Birnbaum’s applica-
tion. They did so not only because they are and were
mindful of Birnbaum’s efforts on behalf of the youth,
the aged and infirm which those organizations serve and
which have come to depend upon Birnbaum, but, more
importantly, because they believed that the public interest
was grievously affected where, as here, an injustice had
been worked, to them, to a society which has been asked
to accept and to aid in programs of rehabilitation of

criminal offenders, and to the integrity of the judicial
process. Thus, as stated in the petition filed in the Dis-
trict Court by Father Jacobs, the Principal of St. Augus-
tine’s Episcopal School:

“It is our view that Judge Cooper’s determination
works an injustice not only upon Birnbaum, but im-
punes the integrity of the Court, undermines confi-
dence in the judicial process and does irreparable
harm to the children, the aged, the underprivileged
and the infirm for whom Birnbaum labored under the
auspices of Judge Cooper. To illustrate, Saul I. Birn-
baum merited by his deeds the designation as St.
Augustine’s ‘Man of the Year’ for 1967 and the chil-
dren of St. Augustine’s were so advised and they, in
turn, doubtless conveyed that message to others in the
Bedford-Stuyvesant community. At a time when the
President of the United States, the Attorney General,
the Judiciary and others cry out for respect for the
law, is it not truly a tragedy for us to be compelled
now to tell our children that the ‘Man of the Year’
of 1967 must go to jail because the Court has arbi-
trarily and capriciously reneged upon its promise and
direction.

To some it may sound trite to say that ‘The true
administration of justice is the firmest pillar of de-
mocracy.’ To the youth, to the aged and to the infirm
who have been and are being immeasurably helped
by Saul Birnbaum’s efforts that statement still has
meaning. We seek leave to appear amicus curiae be-
cause it is our fundamental goal to continue to give
meaning to that phrase.”

On January 27, 1968, District Judge Inzer B. Wyatt
denied Birnbaum’s application for the issuance of a writ
of error coram nobis, holding that there was “nothing that
I can see that I can properly do” and that “this may be
an instance to illustrate the desirability of appellate re-
view of criminal sentences.”

ee ae = ee

23

Birnbaum appealed from that decision. The several
charitable and social service organizations sought and were
granted leave by the Court of Appeals to intervene amicus
curiae. Eight morths after argument of the appeal the
Court of Appeals affirmed, observing, inter alia:

“The question before us for decision is not whether
this court or another sentencing judge might have
reacted differently to the request for modification of
the sentence. Absent an abuse of discretion, Judge
Cooper’s determination must stand and cannot be dis-
turbed on appeal.” (A-11)

B. The Issues Presented Meriting the Grant of Certiorari.

From the viewpoint of the charities our grievance is
not with the mere form of the sentence. Rather our
complaint is directed to the propriety of the totality of
circumstances of this case, commencing with the form of
the sentence, then to the affirmative burden it imposed
upon the defendant, then to the conditional promise it
contained and, finally, to the circumstances under which
that promise was dishonored. In their totality such cir-
cumstances challenge the integrity of the judicial process.
Taken separately, they are both invalid and inherently un-
fair. Such invalidity and unfairness prejudiced not only the
defendant but the charities who, by the Court’s actions,
became inexorably intertwined therein. By the Court’s
actions the charities were asked to and did become the
vehicle for a Court-sanctioned program of rehabilitation
—probation. They accepted Birnbaum, as they were in-
vited to do, they involved him deeply in their activities
and programs and they came to rely upon him; all the
while believing that if they succeeded in affecting his re-
habilitation formal probation would follow. Rehabilitation
was affected, but without rhyme or reason the promise
was not honored.

Se ad ee Ea Se eG Ee SO eee

In searching for an explanation for what has here
transpired we have looked first for some legal basis to
sustain the trial court’s actions and, as appears below,
it is lacking. We then have looked for some equitable
basis and it too is lacking. The inescapable conclusion
to which we then are forced is that the totality of ciz-
cumstances mandates invocation of the supervisory power
of this court to secure the ever-handed justice which here
was lacking. Saldana v. United States, 365 U.S. 646, 647
(1961).

1. In each of their component parts the sentence and
the trial court’s actions in connection therewith were in-
valid and in conflict with prior decisions of this Court and
otner Circuits, Initially, this case raises fundamental
questions respecting criminal sentence; its office, its
form, its very nature, its relationship to the right of counsel
adequately to represent a criminal defendant, its use to
affect the inherent right of appellate review and, ne-zes-
sarily, the public interest in the integrity of the judicial
process. In their resolution of such questions the Courts
below have reached conclusions which on several separate
grounds are directly at variance with prior decisions of
this Conrt,* the Courts of other Cireuits**, the Fifth and

* See esp. United States v. Rehrens, 375 U.S. 162 (1963) ; Corey
v. United States, 375 U.S. 169 (1963). It should also be noted
that this case presents tie other facet of an issue as to which
this Court recently granted certiorari because of the importance
of the question thus presented. North Carolina v. Pearce, 397
F.2d 253 (4th Cir. 1968) cert. granted October 29, 1968 (No. 413,
Oct. Term, 1968).

** See esp. Fitton v. State of North Carolina, 381 Fed. 636
(4th Cir. 1967), cert. denied 390 U.S. 905 (1968) ; Marano v. United
States, 374 F.2d 583 (1st Cir. 1967); Thomas v. United States,
368 F.2d 941 (5th Cir. 1966) ; Butler v. District of Columbia, 346
F.2d 798 (D.C. Cir. 1965) ; United States v. Wiley, 267 F.2d 453
(7th Cir. 1959) and 278 F.2d 500 (7th Cir. 1960).

Sixth Amendments to the Constitution of the United States,
and the “fundamental principles of fairness” which, when
vicviated, compel invocation of the supervisory power of
this Court to assure the fair administration of justice.*

hus preiised, the effects that flowed from such sen-
tence were equally tainted and, as hereinafter more fully
appears, in conflict with numerous decisions of other Cir-
cuits, To illustrate, the sentence here imposed by its terms
invited a defendant faced with imprisonment to under-
take (as found by the Court of Appeals) a “calculated risk”
that by embarking upon a course he otherwise had no
legal obligation to pursue—a program under which,
while on bail pending determination of his appeal, he
would give a “hunk of himself and of his wealth” to speci-
fied charities--he might thereby, if his appeal proved
unsuccessful, avoid imprisonment** ; the program judicially
prescribed though seemingly specific as to its terms was,
as events demonstrated, to be judged by the sentencing
court against such wholly subjective and undisclosed stand-
ards as to be capricioust; the vagaries of the subjective
standards thus utilized permitted, if not compelled, the
sentencing court to judge compliance based not merely
upon the defendant’s actions under the program but by the
vigor with which his couns# pressed the inherent right of
appellate review and the critical comments of the appellate
court; and, finally, the Court enticed » number of highly
reputable charitable and social service organizations to

* See Saldana v. United States, supra, 365 U.S. 646, 647; Yates
v. United States, 356 U.S. 363, 366 (1958) ; Fay v. People of State
of New York, 332 U.S. 261, 287 (1947) ; McNabb v. United States,
318 U.S. 332, 341, 349 (1943).

** See Thomas v. United States, supra; United States v. Wiley,
supra.

t See Butler v. District of Columbia, supra.

te

a bain. Aas ers vata a i at ide 8 APE BS ons

26

join in the charted program of rehabilitation and “proba-
tion” in the clearly proper but, nonetheless, misleading
expectation that if the program were successfully under-
taken it would be continued.

Manifestly, the vices of such sentencing—sentencing: that
is invalid both in its inception and in its resultant effects
—are many, affecting the rights ~f defendants, the adminis-
tration of justice and the public interest. Birnbaum’s peti-
tion to this Court demonstrates the respects in which such
sentencing adversely and improperly affects the rights of
criminal defendants. Our concern is not so limited. “Our
concern”, in the words of Justice Frankfurter, “is with
the fair administration of justice” (Offutt v. United States,
348 U.S. 11, 17 (1954)) and here the reason for concern
stems from the fact that if the public is to b2 involved in
obviously desirable programs of rehabilitation of criminal
offenders® (or for that matter in any other judicially sanc-
tioned programs) it clearly is entitled te scrupulously fair
and candid treatment, particularly from the courts.

Here, such scrupulously fair treatment was lacking. As
found by the Court of Appeals (A-8, es. N. 5) the charities
were led to believe and believed that the trial court had
initiated a program under which the charities were to

* As recently observed by the Advisory Committee on Sentenc-
ing And Review, “sentences which do not involve imprisonment are
more likely to be effective in the vast majority of cases”, as wo'l
as less expensive, and thus are to be preferred. ABA Project on
Minimum Standards for Criminal Justice, Advisory Committee on
Sentencing and Review, Standards Relating to Sentencing Alter-
natives and Procedures, Section 2.3(e), pp. 72-73 (1967). See also
Herlands, When and How Should a Sentencing Judge Use Proba-
tion, 35 F.R.D. 487, 497 (1964). Public involvement in the spon-
sorship, and certainly in the support, of such programs f re-
habilitation and probation is plainly critical, particularly if, as
recommended, such programs are to be the rule rather than the
exception.

Soe Las ey ea a A Sl ORL is. 325 Se

27

supervise the rehabilitation of Birnbaum and, if such re-
habilitation efforts were successful, probation rather than
imprisonment would follow. That such was not a naive and
untutored viewpoint is demonstrated by the fact that three
experienced jurists—Justices Beldock, Heller and Bern-
hardt—reached the same conclusion. At no point in these
proceedings has anyone, least of all the trial court, prop-
erly found that Birnbaum failed to meet the mark set for
him by Judge Cooper or that he failed in any proper man-
ner to realign his sights. If left thus misled, the charities,
and we submit the public generally, will be compelled to
conclude that they have been ill-used and that the integrity
of the judicial promise and process is, to say the least,
suspect.

(a) The invalid nature and form of the sentence. The
Birnbaum petition to this Court sets forth in detail (Pet.
17-35) and we shall not repeat the arguments there made
that tentative sentences are invalid, except where the Court
expressly invokes 18 U.S.C. §4208(b) with its attendant
safeguards. United States v. Behrens, 375 U.S. 162, 165
(1963) ; Corey v. United States, 375 U.S. 169, 173 (1963).

The Court of Appeals found that the “for the present”
sentence here imposed was a tentative one, holding that
under the terms of the sentence “. . . Judge Cooper un-
ambiguously reserved the power to reassess the situation
and decide whether, after Birnbaum’s conviction had be-
come final, probation would be inappropriate in light of
all relevant factors, including that of appellant’s behavior
while his appeal was pending” (A-9). Such tentative sen-
tence failed, however, to accord Birnbaum the option,
necessarily inherent in 4208(b) sentences, to appeal either
following the tentative sentence or after the entry of the
Snal sentence. That omission not only viclated the prin-

a eee

~~ ite

R rr

ciples enunciated in Behrens and Corey, it was the vice
from which were spawned the injustices which bring us
here.

By its terms the sentence compelled Birnbaum to ap-
peal forthwith and simultaneously to embark upon the
rehabilitation-probation course charted by the court. To
illustrate, the trial court advised Birnbaum that it would
not finalize probation until after (1) he had success-
fully embarked upon the charted rehabilitation program and
(2) the appeal had been determined. Similarly the program
was not in any way limited as to its duration, except by
the action of the Court of Appeals in determining the ap-
peal. Moreover, as found by the Court of Appeals, the
trial court by its sentence gave, Birnbaum, as it gave to
the charities (including the three above-mentioned jurists),
the firm impression that should he appeal and should that
appeal prove unavailing, he nonetheless need not face im-
prisonment if he pursued the specified path.

Here, then, there was imposed precisely the kind of
unlawful tentative sentence—one free of any safeguards—
abjured by this Court in Behrens and Corey. Thus, the de-
fendant was placed in an untenable position in his pursuit
of appellate review. If, as here, he pursued vigorously his
inherent right of review, the actions of his counsel and of
the appellate court would necessarily have an effect upon
the trial court at the time of final sentence should the ap-
peal fail*. Alternatively, the defendant and his counsel

* As held by this Court in Corey. the option as to when to
appeal from a tentative sentence under 18 U.S.C. §1408(b) finds
justification in the fact that if the defendant were compelled
to appeal forthwith, he “might think, rightly or wrongly, that
the trial courts knowledge that an appeal had already been taken
might adversely influence the court’s discretion in imposing final
sentence.” 375 U.S. at 175.

— ea Se

tte SBA Ath hate YB AO dea

29

could mute their advocacy on appeal, thereby prejudicing
the appeal while preserving the “favor” of the trial court.
As appears from the arguments set forth in the Birnbaum
petition to this Court, which we will not repeat, such a
dilemma may not properly be posed, for to do so would in-
hibit both the unfettered right of appellate review* and
would make a mockery of the right to counsel on appeal.**

It is, of course, true that the technica! arguments set forth
above relate in sbstantial part to the validity of the sen-
tence from the viewpoint of Birnbaum. However, in light of
the predicament in which the charities have here found
themselves, we feel obliged to point out these infirmities in
the public interest lest they be permitted again to occur.
Moreover, although the charities benefited tangibly from
Birnbaum’s time and efforts (and they, in turn, flowed from
the sentence) such benefits pale in significance when com-
pared with the harm that has here been done; harm to the
administration of justice and the public interest. The
charities (and their constituencies, vast segments of which
are aware of what has here transpired) have, with reason,
now come to suspect the sanctity of the judicial promise
and even the integrity of the judicial process. To them
sentencing is not a game and the judicial promise (even a

*See North Carolina v. Pearce, 397 F.2d 253 (4th Cir. 1968)
cert. granted Oct. 29, 1968 (No. 413, Oct. Term 1968) ; Patton v.
North Carolina, 381 F.2d 636 (4th Cir. 1967) ; Morano v. United
States, 374 F.2d 583 (1st Cir. 1967). Those cases, including
Pearce which now is before this Court, hold that the right of
appellate review shall not be hampered by the possibility that a
successful appeal may result in an increased sentence on remand.
This case, of course, poses the same question in respect of an
unsuccessful appeal.

** See Douglas v. California, 372 U.S. 353 (1963). Obviously,
the right to counsel on appeal is meaningless if such counsel is to
be shackled in his advocacy by being barred from vigorously
asserting any claim, however helpful to his client, that sway dis-
please the trial judge.

tale spigot Dont lh sab TAP ELO a etic ail sy Alda haePs A Cap LS i lente 4 ONS ca it ae BAO Te ap es a NS mk

conditional one) is not to be viewed as a “calculated risk”
with the prospect that it will be measured by the morals
of the marketplace—perhaps honored, perhaps not. Hence
our deep concern with what has here transpired, in all of
its aspects, and our comment thereon as amicus curtae.

(b) The resultant effects of such sentence. It is, per-
haps, not surprising that with an invalid sentence as the
predicate, the events that followed were equally tainted.

First, at a time when Birnbaum would have been free to
pursue whatever course he chose, while on bail pending
appeal (Fed. Rules of Crim. Proc., Rules 38(b), 46), that
freedom here became the subject of restraint. Birnbaum
was, in the words of the Court of Appeals, offered a “faint
glimmer of hope” that by undertaking a “calculated risk”
he might “persuade the sentencing judge that he should not
suffer confinement.” (A-9, 10). Even if viewed in the light
thus suggested by the Court of Appeals, the fact remains
that Birnbaum had no choice, bearing in mind “[t]he un-
equal position of the judge and the accused, one with the
power to commit to prison and the other determined to
avoid prison .. .” United States v. Gilligan, 256 F.Supp.
244, 254 (S.D.N.Y. 1966). See Worcester v. Commissioner
of Internal Revenue, 370 F.2d 713, 718 (1st Cir. 1966).
Thus viewed, Birnbaum was enticed to embark upon a pro-
gram under which, by the giving of a “hunk of himself and
of his wealth” to charity, he might in the eyes of the Court
then be entitled to probation. However, if thus viewed, the
decisions below conflict with the holdings of other Circuits
that the discretionary sentencing power of the trial court,
howsoever sought to be justified, may not be used as a way
to pressure a defendant to follow a certain course of action
by punishing him with a more severe sentence if he does
not. Thomas v. United States, 368 F.2d 941 (5th Cir. 1966) ;

2 elt 8G ea ETSI 8s A OR a RC SARL Sey lL LOE dd

31

United States v. Wiley, 278 F.2d 500 (7th Cir. 1960). Here
that course of action was a program under which defendant
would give a “hunk of himself and of his wealth” to speci-
fied charities and the alternative would be the trial court’s
refusal to consider the availability of probation, even
though it had already found the defendant a fit subject for
such rehabilitation. Additionally, the decisions below if
thus viewed conflict with the holding of the Seventh Cir-
cuit that such pre-conditions upon judicial consideration of
the availability of probation are invalid. United States v.
Wiley, 267 F.2d 453 (7th Cir. 1959).

The prejudice incurred by Birnbaum by reason of a
sentence that was invalid in inception and in pursu-
ing the course there charted by the trial court could only
be justified (if at all justifiable) upon either of two
grounds. First, as we suggested below, the circumstances
taken as a whole might be viewed as probation, for
indeed there were here present, insofar as Birnbaum
and the charities were concerned, all of the indicia of pro-
bation.* Second, it might be viewed as a conditional prom-

*In the proceedings below we urged that, in practical effect,
Birnbaum had been placed on probation at the time of and by
virtue of the sentence. That view, as found by the Court of Ap-
peals, was the one the charities (and the experienced jurists who
acted for them) had held from the outset of the program. The
Probation Act is, of course, a remedial statute and must be liberally
construed. E.g.: Scalia v. United States, 62 F.2d 220, 223 (1st Cir.
1932) ; Reeves v. United States, 35 F.2d 323, 325 (8th Cir. 1929) ;
Niz v. James, 7 F.2d 590, 592 (9th Cir. 1925). Liberal construc-
tion of the Probation Act permits the status of probation to exist
under the Act even though the technical requirements of the Act
have not been met. F.g.: McHugh v. United States, 230 F.2d 252
(1st Cir. 1956), cert. denied 351 U.S. 966-76 ; Campbell v. Alderhold,
36 F.2d 366 (N.D. Ga., 1929). Although all of the technicalities of
the Act have not here been met, the statements made by the Court at
sentencing and thereafter amounted to an invocation of the Act.
Thus, in every practical respect, the relationship of the Court to Birn-
baum since sentencing met or surpassed the qualifications of proba-

32

ise on the part of the Court that if Birnbaum successfully
pursued the path of rehabilitation he would be placed on

tion as established by the Act. First, the Court approved a particular
course of action for Birnbaum to follow and led him to believe that
if he followed that course he would not be required to go to prison
to serve out his sentence. Second, the Court used the power given
it by the Act to force Birnbaum to adopt a stated course of con-
duct; by emphasizing its power to send Birnbaum to prison on the
one hand or, to give him liberty on the other, the Court was able
to dictate Birnbaum’s conduct for upwards of eighteen months.
Third, Birnbaum was under the same pressures and restrictions
that he would have been under had an official probation order
issued; there was no doubt that the simple choice was to follow
the charted course or face the prospect of imprisonment. Fourth,
Birnbaum’s activities were supervised by an officer of the judicial
system (albeit a judge rather than a court probation officer) who
in turn maintained contact with the defendant and the sentencing
court, and, in addition, by seven responsible public agencies (two
of whom supervised Birnbaum’s activities through the eyes of
judges who also were, to say the least, experienced and expert).
Fifth, the conditions imposed on Birnbaum were not only affirma-
tive, but of immense proportions. Certainly such conditions ex-
ceeded the norm (e.g., refrain from further violations of law, work
regularly, behave); they called for specific conduct in terms of
time, effort and monetary expenditures. The only missing ingredi-
ent for formal probation thus was a formal court order.- However,
as McHugh and Campbell make clear, such an order is not indis-
pensable, it can be nrovided nunc pro tunc. See also United States
v. Mulligan, 48 F.2d 93, 94 (2d Cir. 1931) ; Buhler v. Pescor, 63 F.
Supp. 632, 638 (W.D. Mo. 1945); Archer v. Snook (N.D. Ga.
1965), Cf., United States v. Morse, 344 F.2d 27, 29 n. 1 (4th Cir.

A fortiori, if probation was in effect it could not be revoked
under the Act absent a clear showing that the conditions prescribed
had been violated. Hollandsworth v. United States, 34 F.2d 423,
428 (4th Cir. 1929). See also Broadus v. United States, 317 F.2d
212, 213 (Sth Cir. 1963) ; Yates v. United States, 308 F.2d 737, 739
(10th Cir. 1962). Here no one has contended, nor could they, that
any such violation occurred. Of course, probation is in itself a
form of punishment. E.g.: Toyosaburo Korematsu v. United States,
319 U.S. 432, 434-35, 63 S. Ct. 1124, 87 L. Ed. 1497, 1498-99.
(1943). Neither the charities nor even Birnbaum urge that he
escape punishment. Rather, they here seek, as they sought below,
that the punishment fixed be that specified at sentencing—proba-
tion.

A ne er hacen tne hades Tak bleed rie aaa

33

probation should his appeal fail.* Howsoever viewed, the in-
disputable fact remains (as found by the Court of Appeals)
that the trial court knowingly permitted (if not encour-
aged) the charities to embark with Birnbaum upon the
program of rehabilitation and the charities were led to
believe and believed that, if that program were successful
in terms of rehabilitating Birnbaum, probation would
either be finalized or formalized. Again, those were nct
merely the judgments of persons unskilled in the law; in-
cluded were the judgments of three experienced jurists
_ based upon the statements made by the trial court at the
time of and following sentencing.

Second, having thus initiated a program of rehabilitation
(whether one of probation or one intended to satisfy con-
ditionally promised probation) even-handed justice dic-

* Any other construction would place the trial court in an un-
thinkable posture. Thus, it could not fairly be suggested that the
course outlined at sentencing was a judicially meaningless one, ex-
cept that it might be “good for Birnbaum’s soul”. Such an approach
would violate the proscription of Canon 21 of the Canons of Judicial
Ethics, that: “ ... Though vested with discretion in the imposi-
tion of mild or severe sentencing he [, the Judge,] shoxld not
compel persons brought before him to submit to some humiliating
act or discipline of his own devising, without authority of law,
because he thinks it will have a beneficial corrective influence”
Cf. Weems v. United States, 217 U.S. 349 (1909). Neither can
it be suggested that the course outlined amounted, at best, to a
“faint glimmer of hope”, a “calculated risk” on the part of Birn.
baum that, following determination of the appeal, Judge Cooper,
who (in the words of the Court of Appeals) had “unambiguously
reserved the power to reassess the situation”, might or might not
in imposing final sentence then grant probation. All of the evils
of tentative sentencing would then be magnified. The trial court
would thereby be imposing an unwarranted and inappropriate
condition upon the grant of probation. United States v. Wiley,
267 F.2d 453, 455 (7th Cir. 1959). Cf. Due Process in Sentencing,
81 Harvard Law Rev. 821, 843 (1968). Moreover, if thus viewed,
the triai court would have been engaging in the same kind of sub-
jective sentencing as was found to be without basis in law in
Butler v. District of Columbia, 346 F.2d 798 (D.C. Cir. 1965).

—" Si Lak . AP Ae ie RNR De is Cane ah eA

34

tated that the trial court either grant probation upon
completion of the program or clearly state a proper basis
for not doing so. Neither event here occurred.

The record discloses that in decreeing imprisonment
rather than probation (both on the original application
for the reduction of sentence and upon reargument) Judge
Cooper denied the application of the charities to be heard
orally, that they were never interviewed or in any way
contacted by the court’s probation officer and that Birn-
baum, himself, was denied the opportunity for allocution.
Nonetheless, the record is clear (and undisputed) that
Birnbaum’s rehabilitation was a success in precisely the
terms specified by the court and that he had realigned his
sights. The record also discloses that the government, al-
though opposing probation and arguing for imprisonment,
never challenged the merits or success of the rehabilitation
program; rather it confined itself to the fact that the argu-
ments of Birnbaum’s counsel upon appeal evidenced Birn-
baum’s bad character and his unappreciativeness of the
opportunity afforded him by the Court. No finding was
at any time made by Judge Cooper tha Birnbaum had
failed to meet the mark set for him, or the respects in
which he had thus failed. Judge Coope: simply held that,
after due deliberation, he felt that Birnbaum should be
imprisoned.

In light of the circumstance of this case, such action
is, we submit, a denial of due process (Due Process in Sen-
tencing, supra, 81 Harvard Law Rev. at 845) or, at least,
a violation of the standards for the fair administration of
justice sufficient to call for the invocation of the supervisory
power of this Court. Manifestly, unless the defendant un-
derstands the nature of and reasons for the sentence which
he is about to serve it has little useful impact upon him and

' jreianeatew.

35

consequently leads only to cynicism. ABA Project on Mini-
mum Standards for Criminal Justice, Sentencing Alterna-
tives and Procedures, supra at pp. 270-272; Due Process
in Sentencing, supra, 81 Harvard Law Rev. at 843-44. Fur-
thermore, where as here, the public has been invited to join
the Court in the sponsorship of a program of rehabilita-
tion, it is, at the very least, entitled to the scrupulously
fair treatment and candor of such findings.*

As stated in the reports which the charities gave to Justice
Heller and which he transmitted to Judge Vooper and as
stated in the writings from the charities to Judge Cooper,
it was and is the unanimous view of the charities that
Birnbaum met the mark set for him (and then some), that
he realigned his sights and that the rehabilitation program
was a complete success. No one has ever disputed that
showing, because they could not do so. A fortiori Judge
Cooper’s actions must have been based upon some event
or consideration other than that which he outlined in his
sentence and which served as the basis for the charities
undertaking the role they did. If that undisclosed event
or subjective consideration related to the circumstances

* Indeed, that such lack of findings is not merely a disservice
to the criminal defendant and to the public generally, but is also
a disiinct disservice to the judicial system is readily illustrated
here. In the proceedings, arguments and decisions below, counsel
and the courts were compelled to engage in conjecture in an effort
to explain the actions of the trial court. Thus, the Court of Ap-
peals was compelled to speculate that, although “Birnbaum may
indeed have devoted much time and effort and have contributed
large sums to charities”, “i]t appeared that in the judge’s eyes
appellant did not make ‘the impressively convincing showing’ that
the Judge felt was necessary before he could grant probation”
and that “the Judge did not seem to feel that the best interest of
the public would be served by granting appellant probation”.
(A. 9, 10). Manifestly a record which compels resort to such
conjecture is not merely inappropriate, it offends “civilized stand-
ards of procedure”. Cf. McNabb v. United States, 318 U.S. 332,
340 (1943).

<> Su Se SS a a ot aS gs os

36

surroundime Hinibaum’s appeal, then, as more fully ap-
pears: from Hiribaum’s petition to this Court, it is a pat-
ently improper consideration. If that subjective consid-
eratiom treanseeniied the normal and proper bounds of re-
habilitatiom ((whith normal and proper bounds here were
met),. tliem, liie ill such wholly subjective standards, it is
without: assis im law. Butler vy. District of Columbia, 346
F.2st: 73 (AC. (Cir. 1965). Whatever undisclosed consid-
eratiom mupy livre ‘have influenced the trial court’s actions,
the fact reenmims that those entrusted with the administra-
tion: of ttintt ctharted program unanimously viewed it to
have beren ssmecessfully complied with and no contrary show-
ing has: evear ieeen:made.

2.. Viewexil us a whole, the sentence and the events flow-
ing theretinom were not merely violative of provisions of
law, they mudiiated elementary principles of even-handed
justice.. Tn ttie foregoing discussion we have focused briefly
on partimmilar aspects of the sentence which, to our mind
at: least,. risee serious questions as to the essential validity
of the seartteuee and the events it set into motion. How-
eVer,. as wee jpreviously observed our concern is not with
the form atf ‘the sentence; it is instead with the totality
of the circumstances of this case. As we view it, albeit in
retraspest,, tiie circumstances of sentencing were legally
tainted fixom start to finiss What emerges, nonetheless,
is that: a distinct promise w.s here conveyed not merely to
Birnbaum, litt to those who by the trial court’s actions
ware invite tto lend themselves to aid in affecting the
court's: stttteil desire to secure the rehabilitation of Birn-
baum. If its, iim ‘the final analysis, that notion of judicial
commitmeantt ‘to ‘formally place Birnbaum on probation (if
what tlie court «asked be done was in fact done) that we
seele heree top mve honored.

37

Under circumstances such as here obtained the public,
if not Birnbaum, is plainly entitled to enforce the sanctity
of the judicial promise and the inviolate nature of «'emental
standards of judicial fairness. See e.g. Machibroda v.
United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed. 2d 483
(1962) ; Shelton v. United States, 356 U.S. 26, 78 S. Ct. 563,
2 L.Ed. 2d 579 (1958); Walker v. Johnston, 312 U.S. 275,
61 S.Ct. 574, 85 L. Ed. 830 (1940) ; United States v. Taylor,
303 F.2d 165 (5th Cir. 1962); People v. Price, 24 Ill. App.
2d 364, 164 N.E. 2d 528 (Ill. App. 1960); Weber v. State,
58 Ohio St. 616, 51 N.E. 116 (Ohio Sup. Ct. 1898).* As
stated by the Supreme Court of Utah:

*The Court of Appeals rejected the concept of conditional
promise upon two grounds. First, it concluded that “Ta] careful
reading of Judge Cooper’s statement, however, reveals no condi-
tional promise that appellant’s infprisonment sentence would be
suspended but only a suggestion that probation remained a feasi-
ble possibility”. That position is untenable for the reasons previ-
ously stated, and for the further reason that the Court’s subsequent
conduct in twice givire its imprimatur of approval to the specific
program embarked upon by Birnbaum and the charities demon-
strated that more than a mere exercise was here intended. It also
is untenable because, though the word “might” was repeatedly
used, that word, in context, could have no proper meaning other
than that probation would follow if Birnbaum pursued the charted
path. Clearly that was the meaning ascribed to it by the charities
and the experienced jurists acting for them. It would be a whim-
sical and thus an invalid sentence (Butler v. District of Columbia,
supra) if it were to be construed, as suggested by the Court of
Appeals, as meaning that the trial court “might” or that it just
“might not” grant probation, irrespective of what Birnbaum did.
Moreover, any construction other than that of conditional promise
would raise the question as to whether the trial court acted law-
fully in enticing Birnbaum to expend the time and effort he did
during a period when he was to be free of restraint pending appeal.
Use of the discretiouary sentencing power of the trial court, as a
way to pressure a defendant to follow a certain course of action
by punishing him with a more severe sentence if he does not, has
been condemned as an abuse of the trial court judge’s discretion.
Thomas v. United States, 368 F.2d 941 (5th Cir., 1966); United
States v. Wiley, 278 F.2d 500 (7th Cir., 1960). Here, however, a

38

“Tf those who are to be reformed cannot implicitly
rely on promises or orders contained in the suspen-
sion of sentences then we.may well expect the law to
fail in its purpose. Rvformation can certainly best be
accomplished by fair, consistent, and straightforward
treatment of the person sought to be reformed.” State
v. Zolantakis, 70 Utah 296, 259 p. 1044, 1046, 54 ALR
1463 (1927).

Where, as here, the public is enlisted to aid in a judicially
sanctioned program it is similarly entitled te such “fair,
consistent, and straightforward treatiuent”. Moreover, that
the sanctity of judicial promise is to be given the widest
possible latitude and, indeed, that the defendant need not
even be the one directly benefited by the promise is now
clear. Hassell v. United States, 287 F.2d 646 (9th Cir.
1961). Here not only Birnbaum but the charities unques-
tionably believed that a promise had been made to them;
the charities welcomed the opportunity to be of aid to the
Court and to avail themselves of Birnbaum’s assistance;
they invited Birnbaum to become immersed in their pro-
grams and problems and, pleased by his effective help, they

way, apparently, was sought to be found (through use of the con-
ditional term “might”) to avoid that problem.

Second, the Court of Appeals found that an enforceable condi-
tional promise was not stated because “ .. . Birnbaum did not
lose any basic rights by following the advice of Judge Cooper”.
As previously observed, that view is untenable for various reasons,
if only the faet that by following the advice Birnbaum gave up
the basic right to emain free of restraint pending appeal and,
in addition, gave time, effort and money to entities and under cir-
cumstances not of his own choosing. Moreover, as viewed by the
charities such an argument is disengenuous. Certainly, the charities
benefited tangibly from Birnbaum’s efforts; but their respect (and
that of the many they serve) for the integrity of the judicial proc-
ess, their regard for the sanctity of the judicial promise and their
willingness again to be thus used is the true standard of measure-
ment, and against that standard the administration of justice and
the public interest paid a shocking price. To them and to society,
at least, the fair administration of justice must mean something
more than a “calculated risk” that right “might” be done.

39

permitted many of their future programs to be planned
in reliance upon his continued participation therein as the
Court had led them to believe would be the case. Elemen-
tary principles of justice and fairness mandate that the
reliance thus placed in the honor of the Court be now en-
forced by this Court in the exercise of its supervisory
power.

_C. The Remedy.

It is now well settled that this Court has such super-
visory control of the District Courts as is necessary to
the administration of criminal justice in the federal
courts. E.g.: Saldana v. United States, supra; Yates v.
United States, 356 U. S. 363, 366 (1958); Fay v. People of
State of New York, 332 U. S. 261, 287 (1947); McNabb v.
United States, 318 U. S. 332, 340, 341 (1943).

It is equally well settled that, as to the scope of such

power, “[t]he sole common denominator of its usage is a

desire to maintain and develop standards of fair play in
the federal courts more exacting than the minimum con-
stitutional requirements of due process.” The Judge-Made
Supervisory Power of the Federal Courts, 53 Geo. L. J.
1050 (1965). Stated otherwise, but to the same effect,
“[s]o long as the ‘error’ violates the Court’s standards
for conducting judicial proceedings, reversal will usually
follow even though the effect on the particular litigant
may have been inconsequential or non-existent. Where
there was prejudice to the litigant, he is relieved of the
need to demonstrate it; where there was none, he becomes
the beneficiary of a gratuitous reversal of an unfavorable
verdict [or decision] because the judicial proceeding hap-
pened to be improperly conducted.” The Supervisory
Power of the Federal Courts, 76 Harv. L. Rev. 1656, 1657
(1963).

Soi hate ht

With the “fair administration of justice”,* “fastidious
regard for the honor of ‘the administration of justice” **
and the maintenance of “civilized standards of proce-
dure” as the sole standards for invocation of the power,
this Court has unhesitatingly exercised that power when-
ever elementary considerations of fairness seemed to call
for its invocation.

Thus, in Thiel v. Southern Pac. Co., 328 U. S. 217 (1946),
the power was invoked to reverse the trial court where the
sole vice was the method of jury selection and wholly with-
out regard to whether petitioner was in any way prejudiced
thereby. In Offutt v. United States, supra, this Court held
that where the trial judge had engaged in partisan or other-
wise unbecoming judicial behavior, supervisory power should
be invoked to order a new trial before another judge, Jus-
tice Frankfurter stating: “The question with which are
concerned is not the reprehensibility of petitioner’s con-
duct and the consequences he should suffer. Our concern
is with the fair administration of justice.” 348 U.S. at 17.

Supervisory power to assure even-handed justice was in-
voked by this Court in Saldana v. United States, supra,
under somewhat similar circumstances to those here
present—i.e. where a promise was at least implicitly madett

* Offutt v. United States, 348 U. S. 11, 17 (1954).

** Communist Party v. Subversive Activities Control Bd., 351
U. S. 115, 124 (1956).

t McNabb v. United States, supra 318 U. S. 382, 340.

tt Significantly, the trial judge did not there unequivocally
promise the lesser sentence but merely inquired of counsel for
defendant: “Would you like to have me make it five years on cach
Count and to run concurrently and waive time right now?” That
such statement did not constitute an unequivocal promise is also
demonstrated by the fact that the trial judge, at the government’s
request, deferred imposition of sentence until after the co-defen-

41

of a lesser sentence, only to be dishonored thereafter.
There, defendant pleaded guilty to two counts of a five
count .arcotics indictment. At sentencing, the trial court
Stated that it would impose a five year sentence. However,
upon the Government’s objection to the imposition of
sentence at that time (since a co-defendant was scheduled
to stand trial within a few days), the trial court withheld
sentencing, but reassured defendant that the Court would
keep its word and impose the five year sentence. The trial
of the co-defendant did not proceed and another judge
was assigned to impose the sentence. Upon hearing about
the earlier proceedings, the second judge decided not to
accept the guilty plea because, in his judgment, it smacked
of plea bargaining and indicated that he would not econ-
sider himself bound by the first judge’s statement. Counsel
for defendant requested that the case be re-assigned to
the first judge and that application was denied. There-
upon, the defendant stood trial and was ecnvicted and
sentenced by the second judge to twenty years. The Ninth
Cireuit affirmed. This Court granted certiorari and set
aside the sentence holding:

“During oral argument in this Court the Solicitor
General suggested that the combination of circum-
stances in this case, beginning with one judge’s clearly
expressed intention to impose a five-year sentence, and
ending with another judge’s imposition of a twenty-
year sentence under the indictment, was not consistent
with that regularity and fairness which should charac-
terize the administration of criminal justice in the
federal courts. In light of the Solicitor General’s sug-

dant had been tried, thereby, arguably reserving to himself the
right then to re-assess the situation, Thus viewed, the circum-
stances of Saldana are strikingly similar to those of this case as
viewed by the Courts below.

42

gestion, and upon an independent examination of the
record, we have concluded that a due regard for the
fair administration of justice requires that the con-
victions under counts 3, 4, and 5 of the indictment
be set aside.” 365 U.S. at 647.

The circumstances of this case compel invocation of this
Court’s supervisory power. Here a tentative and invalid
sentence was imposed and from that vice there were
spawned practices which were equaliy invalid and offensive,
not merely to the defendant, but to the administration of
justice and to the public at large. Whatever else may be
said, the trial court dangled before Birnbaum (and others)
the promise, if not the fact, of probation to persuade
Birnbaum (and others) to follow a desired path; Birn-
baum (and others) followed that path with the knowledge
and acquiescence of the trial court; the promise then was
affirmed and reaffirmed by the trial court; and the trial
court then whimsically ignored its promise without afford-
ing the third parties—the charitable and social service
organizations—which it had involved in this program an
opportunity to be heard and without ever determining
that Birnbaum had in any way, shape or form failed to
meet his obligation. It cannot seriously be contended that
such conduct is consistent with the fair administration of
justice, that it honors the administration of justice, that
it is consistent with the maintenance of civilized standards
of procedure and that it will enhance respect for the law.
Without more, invocation of the Court’s supervisory power
to reverse the order of commitment and to formalize the
probation is mandated. In that regard we should, again
observe that such a direction would not peisut the defen-
dant to escape punishment. Probation is in itself a form
of punishment, particularly where, as here, it calls for

43

the defendant to perform affirmative acts to demonstrate
his continued good conduct and to affect his rehabilita-
tion. E.g. Toyosaburo Korematsu v. United States, supra,
319 U.S. 423, 434-35. Hence our plea for a direction that
the punishment here to be imposed be that which was com-
mitted by the trial court at sentencing and which the trial
court then expressly indicated, under the circumstances of
this case, was the appropriate punishment for this defen-
dant, namely probation.

CONCLUSION

FOR EACH OF THE FOREGOING REASONS, IT IS
RESPECTFULLY URGED THAT FUNDAMENTAL
FAIRNESS, THE INTEGRITY OF THE JUDICIAL SYS.
TEM AND EVEN-HANDED JUSTICE DICTATE THAT

'A WRIT OF CERTIORARI ISSUE TO REVIEW THE
DECISION OF THE SECOND CIRCUIT AND THAT
PETITIONER BIRS@AUM’S PROBATION SHOULD
UPON REVIEW BE FORMALIZED.

December 11, 1968.
Respectfully submitted,

Wru1uaM J. vanven Hevven anp
CxHartes G. Morrpier
Attorneys for Petitioners—Amicus
Curiae, St. Augustine’s Episcopal
School, et al.
61 Broadway
New York, New York 10006

ee
~

APPENDICES

A-1

APPENDIX A

[Letter dated December 22, 1967 from Dr. Sidney
Marks, Executive Director, United Cerebral Palsy Asso-
ciation of Nassau County, to Judge Irving Ben
Cooper]:

“Dear Judge Cvoper:

I take the liberty of writing to you to express my
deep concern for Saul Birnbaum.

I have just learned that your Honor has denied Mr.
Birnbaum’s application to suspend the service of his
sentence. I feel that those of us with whom Mr. Birn-
baum has worked during the past year and a half have
somewhat been remiss in adequately apprizing your
Honor of the nature of Mr. Birnbaum’s endeavors in
our behalf and the character of the man himself as I
have come to understand him.

I am fully aware that Mr. Birnbaum has been con-
victed of a crime. E. swever, I very strongly feel that
his confinement in prison would severely retard his
personal rehabilitation and resuli in serious loss to
those of us intimately involved in the rehabilitation
of the thousands of young human beings who need our
help.

We in Cerebral Palsy deal with rehabilitation—with
trying to equip and prepare the handicapped for at
least limited usefulness to themselves and society. Be-
cause we believe in the concept that to make life :nean-
ingful is as important as—indeed in many instances
more important than—life itself, we dedicate ourselves
to the backbreak and the heartbreak of our work to
salvage the body, train the mind, and bolster the
spirit of the multi-handicapped.

A-2

Hail Birnbaum for more than a year has deeply in-
volte Ihimself in our efforts in behalf of ceretral pal-
swell children and adults. Your admenition to Mr.
EKirmibaum—opening, as it did, new and to him un-
Kownum vistas of communal service—initiated a pro-
gram of rehabilitation for Mr. Birnbaum so effective,
mmupmative and novel that it has commanded the re-
sqeatt cand enthusiastic endorsement of those of us who
leaue come to know of it.

[kt its my sincere belief that the whole of the story of
Wir. Birnbaum’s communal efforts have not been told
tip ysour Honor. I, for stance, know that no one has
anor approached me nor anyone at the Center, to learn
fram ws those facts which I am sure your Honor
wmuld want to know about Saul Birnbaum’s endeavors
diunmy ‘the past year or more; the knowledge of which
fradts Iam sure your Honor would consider important
tm ithe making of a determination.

You lhave provided living proof, Sir, that there are
mo aibstacles which cannot be overcome to restore a
meson as a resource to the community. I most re-
syrantiully urge you to reconsider your most recent
denwsiom [and to permit the continuation of Mr. Birn-
irauni's rehabilitation process, to his and the commu-
mthjs iammeasurable benefit. I ask your Honor to
committer what Saul Birnbaum has already done and
can can dn, for us.

Woconsideration of the effectiveness and the wisdom
aff your HInnor’s prescription for rehabilitation can be
ammpyilete unless it includes our experience with Mr.
Hirmmibaum at Cerebral Palsy. With his guidance,
tthrough this foresight, imagination, and because of his
dizep concern with our problem, we are moving toward
our groal when the handicapped and their families will
lieve teen rrelieved of one of the greatest sources of

Wien Saul Birnbaum first came to our center, he
mutt many of +’ e parents whose daily lives are affected

ENS” LST RAE

DRERETE RO:

PTO IR TENE

tein 4d Bie Sohdatiag ih lak hse sw

A-3

by the pain and the suffering of their cerebral palsied
children. Birnbaum spoke te these parents, and quickly
recognized that the heaviness of their hearts and their
day-to-day anguish, however, terrible, was less than
their overwhelming concern for the future of their
handicapped children. Somehow, they felt they could
cope with the present, and so long as they lived, some-
how provide fur the care of their youngsters. But they
are overwhelmed by the contemplation of the future.
Too often we hear the heartbreaking question, ‘What
will happen to our children when we are gone? Who
will take care of them?’ The brutal fact is, Judge
Cooper, that nowhere is there a full-time residential
eare facility for the cerebral palsied.

Saul immediately sugg:sted, fully committed, and
pledged himself to the establishment of a full-time resi-
dential and treatment center for palsied orphans. At
once he set in motion the machinery to plan and build
the necessary residential center for these tragedy-
stricken people. He has devoted countless hours to
this task. The program embraces a new center that
will provide for the social, medical and rehabilitative
needs of the palsied. So diligent has his work on this
experimental program been, that we are already close
to the start of construction.

We sincerely veiieve that this center will be a model
for the entire country. For the first time, the multi-
handicapped will face the future without fear of total
abandonment.

In addition to the residential center, Saul has de-
voted considerable time to the expansion of our medi-
cal wing. Our Medical Center is a key portion of our
facilities. We are planning a major expansion of this
medical wing, with provisions for added staff and
patients.

Despite the many problems and tensions of this past
year, we have made significant advance in the area of

A-4

attaining financial security. Much of this progress has
been a result of Saul Birnbaum’s direct efforts. His
studies ef the problem and his recommendations have
proven invaluable. The demands upon Saul’s time
have been great; there have been frustrating and in- —
numerable committee meetings, phone calls and con-
ferences, which only a charity can command and the
charitably-inclined can provide. Saul Birnbaum has
given unstintingly of himself in this endcavor. He
assumed the chairmanship of our Journal, which has
just come to a successful conclusion. The funds raised
through his efforts are making it more possible for us
to do our job at Cerebral Palsy.

I am sure that when your Honor reviews Birn-
baum’s massive effort in our behalf—the establish-
ment of the residential center, expansion of our
Medical Wing, creation of a program for endowment
funds, and his contribution of time and money to help
solve our financial problems, you will agree with me
that Mr. Birnbaum is a man not only of ability, but
of true compassion and dedication.

It would be impossible for me to recount all that
Saul Birnbaum has meant to us. The road, of our
cerebral palsied and their families, is a long and hard
one to travel, but the goal makes the difficult journey
worth while. I most sincerely ask that you help us by
exercising your judicial power with compassion, and
permit Saul Birnbaum to continue his good work with
us.” (Emphasis supplied).

EOS SR IRIE SEAS :

B-1

APPENDIX B

[Letter, dated December 21, 1967 » by Father W. G.
Henson Jacobs, Principal of St. Augustine’s Episcopal
School, to Judge Irving Ben Cooper ]

“Dear Judge Cooper: “

~~

It is with a heavy heart that I write to you in behalf
of our very dear friend, inspirational leader and di-
rector—Saul Birnbaum. I write to you as Principal of
St. Augustine’s and the Past President of the Protes-
tant Council of Brooklyn.

Our school—located in Bedford Stuyvesant—is now
offering quality education for hundreds of Negro
children. From the depths of poverty, from the brink
of hopelessness, many of these youngsters have been
encouraged to pursue their education and rise to fine
careers and lives.

Children with ability are given the opportunity to ,
learn, which they never would except for this school.
They are given the chance that frequently they never
would have.

To these ends, St. Augustine’s has dedicated itself.
We are recognized as an excellent school, doing a very
significant job in a community that truly needs help of
this type.

Against this setting and during a period of very
great stress at our school, we met Saul Birnbaum. It
was approximately a year and one half ago, when Saul
visited our school—then located in the YMCA at 55
Hanson Place. He exhibited an unusual awareness of
the social and educational problems that confronted
youngsters from our environment.

That first day, he visited with virtually every teacher
in our school. He spent a number of hours in the class-
rooms. He chatted with our students, young and old.

B-2

He asked them about their reading their interests and
their studies. At the outset, I was greatly impressed
with his desire to probe—to understand—and to assist
us.
At the end of his visit, Saul said, “I want to be of
kelp. What can I do?”

With this offer—a new chapter began in the history
of our school. Judge Cooper, you must know of the
events that have transpired, because only then can you
evaluate the tremendous time, energy and guidance that
Saul has given and may continue to give to us. He isa
charitable man. But beyond mere charity, he is a so-
cially conscious man whe is giving without stinting of
his time and energy.

Our foremost problem at that time—as it is today—
was to plan a permanent home for our school. When
we were founded, we were located in our church build-
ing at Marcy and Lafayette Aver-ues. As the commu-
nity learned of our work, the demands for entrance
grew so rapidly, that we were forced to take temporary —
quarters at the YMCA. Here, too, the size of our stu-
dent body has continued to grow.

Saul saw our church quarters and the YMCA facili-
ties. And he advised us that the ‘Y’ quarters—while
excellent in terms of mass transportation—were poorly
laid out, difficult to supervise and not suitable for
expansion.

He set forth a plan, by which we would start to
scour our neighborhood for a suitable building of our
own. It was evident to us that his background as a
realtor and financier would be of immense value to us
and our children.

The problem became still more acute a few months
later when we were notified that the State of New York
was acquiring the YMCA building for use as a nar-
cotics rehabilitation center.

We held a number of emergency meetings with
Saul. He advised us to seek permission to complete the

B-3

school term at the YMCA without interruption. He
then created a “team” of professionals—architect, at-
torney and himself—that joined with a group of parents
and teachers from the school, to hasten our search and
evaluation concerning’the new building.

A number of potential sites were considered. Saul
visited each and every one of them with me. At first
we found a catering hall that appeared suitable. But
the renovations and mortgage charges appeared far
beyond the scope of our income. We visited abandoned

commercial buildings and a theatre that was placed on —

the market.

Saul spent days—literally days—in driving through
Bedford-Stuyvesant with me. He was quick to spot
massive defects in the buildings that we contemplated,
many of which I could not see. Yet he did not permit
us to panic. The YMCA situation ended and we moved
to temporary quarters once again. Despite this, our
enroliment was high. The educational environment in
this space is poor, but through Saul’s encouragement,
we notified the parents and the children alike that this
would be a stop-gap situation—that we would soon have
our own facilities.

Several weeks ago, we located a large building that
is being used by the Arion Club on Bushwick Avenue
in Brooklyn. Saul visited the building a number of
times. Once with an architect, who has prepared plans
for a complete modernization of the structure. (Paren-
thetically—this was the second full set of plans that
Saul had prepared. A prior set was devised for another
building, which proved to lack many of the ingredients
we required).

The following week, Saul took a builder to the struc-
ture—impressed upon him that this was a vital job for
the school—and had this builder provide us with a
rough cost analysis and opinion concerning the build-
ing.

B-4

Saul also met with our parents’ group, and outlined
a course of procedure for us to follow in acquiring the
property, and erecting an appropriate structure
thereon.

Negotiations are presently under way. With Saul’s
active guidance and participation, we hope to bring this
project to a successful conclusion in the near future.

We will have a building that is well located and suit-
able for the purpose of our school. It has a large gym-
nasium-auditorium ; sufficient rooms for classrooms to
accommodate 400 students; good kitchen and other
facilities. We plan to establish a pre-school nursery
class too.

Without a doubt, if Saul Birnt um had not been
helping us during these trying times, we would not be
at the noint where our future seems secure. He has
been a tower of strength and has used his time unspar-
ingly in our behalf. :

But let me diseuss other aspects, too, of his work.
At the very beginning of our relationship, he asked if
there were any very needy, yet extremely talented
children at our school—children whe really required
financial aid to continue. He met with a number of
them and established an annual scholarship. The Am-
sterdam News singled out this award for attention.

Saul also exerted efforts to try to create a school
dropout program, under which we would take in a num.
ber of school dropouts for special educational training.
At the same time, they would be assisted by us in get-
ting part time jobs, so that they would work and study
at the same time. He put us in contact with a number
of people and we are in the process of seeking to de-
velop this program with the help of Federal Poverty
funds.

Saul helped us with our camp. As you may know,
we operate a summer camp for poverty children. These
are youngsters who have never seen the beauty of the
countryside green. We give them a summer of fun at

B-5

our own carp. Saul met with the camp committee a
number of times. He is currently outlining a program
by which we will expand our service by contacting other
camping groups in an effort to have them take addi-
tional children from our school at their camps. We can-
not devote full time to the camping program, and Saul
thinks we may be able to interest other groups devoted
exclusively to camping operations, to help us increase
the numbers of youngsters that receive summer vaca-
tions without charge.

Our Board of Directors was so impressed with Saul’s
efforts that we voted him our “Man of the Year”. This
award was presented to him at our graduation cere-
monies this past June. At that time, Saul presented
medals to the outstanding students and delivered a very
touching speech to our children. His name and his ac-
tivities serve as symbols of promise to our students,
teachers and parents.

Saul also arranged for the Brooklyn Philharmonia
tc provide hundreds of free tickets to our children for
their children’s concert series. You would have been
thrilled to see the looks of joy and excitement on the
faces of our children.

The list is endless. Any charitable organization that
can have the unusual talents of a Saul Birnbaum to help
it, has a vast reservoir of strength.

We feel that your honor would want to know this.
We wanted you to know that we are distraught over the
decision and are praying that he may be spared to con-
tinue his work. We are so desperately in need of his
advice and assistance. If we do not now conclude the
transaction for our new building, we will forever lose
the opportunity. We rely so heavily upon Saul.

If you send him to prison, our school plans will
collapse. Our fond hope of many years will again
become a frustrating hope instead of reality.

B-6

We pray that through this letter you will come to
understand his role with us.

I implore you to meet with me. I would be pleased
to discuss this situation with you at very great length.
Our entire community has a very real and heartfelt con-
cern for our friend, Saul Birnbaum.

With humility and with hope, I remain,

Very truly yours,

The Rev. W. G. Henson Jacobs”
(Emphasis supplied)

C-1

APPENDIX C

[Letter, dated December 22, 1967, from Rabbi
Morris Schmidman, Dean of Hillel School of the Shore

Area, to Judge Irving Ben Cooper]

“Dear Judge Cooper:

I fervently pray that you will give your compas-
sionate consideration to this must heartfelt plea on be-
half of Saul Birnbaum.

When you recommended that he apply himself to
works of charity, you bestowed upon our school a
unique biessing. The insight that you so graciously
made manifest b, this directive was a noble expression
of eur prophetic tradition of righteousness, charity and
compassion,

Has he failed to heed your admonition? Was his
work for our school too begrudging? Did he not make
the efforts and sacrifices which would vindicate him in
your blessed judgment?

Your Honor, I beg you to consider the faithfulness
with which your suggestion has been followed and the
eternal good that has resulted from it. The Hillel
School, founded seventeen years ago, is an educational
institution dedicated to our American culture and Jew-
ish heritage. I am the Dean of the School and am re-
sponsible for its day-to-day functions and administra-
tion. I know intimately that were it not for the dedi-
cated help of Saul Birnbaum in this past year, the ex-
istence of this school would have been in serious
jeopardy.

Our school is not large, except in spirit. We have a
vision of youngsters growing to manhood as fine citi-
zens with religious convictions. They will be good men
and women, good fathers and mothers, good neighbors
and citizens. We have not completed every stage of this
journey, but we labor to accomplish this ideal.

AA Se RET ih sit A lt SE WDA ths Pit La NPA mm RE at Cie A i abate EBA ak tnt Eck otha Sle

C-2

Saul Birnbaum is really and truly helping us in
these endexvors. It is not easy to speak of Saul Birn-
baum’s work for us in conventional terms. Let me first
give you my impression of Saul. His humility is pro-
found and sincere. His bearing is modest. But we im-
mediately become aware that we have in our midst a
remarkable person. With his insight and concern he
quietly forces us to think differently of our efforts. His
gentle and self-effacing manner and his earnestness,
convince me that his efforts on behalf of the school mir-
ror the attributes of good citizenship in their noblest
quality. He is a dutiful son to his mother, now old and
helpless. You may well ask, is this really a teue judg-
ment? I art convinced by instinct and by personal as-
sociation that Saul Birnbaum is now motivated by the
essence of the charity that you described in your April
decision. It moved him deeply and made him truly a
nart of us.

When he first came here he asked me many ques-
tions. He told me that what he had seen and heard at
the Hillel School moved him to lend his full support
and effort. This he has done, and done so completely
and sincerely that he has now become a vital part of
our future.

For Saul Birnbaum our small school looms very large
indeed. He concerned himself immediately with the
safety and comfort of our student body. He spent days
in the study of our physical structure. Saul insisted
that important construction work be instituted on new
classrooms and improvements to the library. We have
now undertaken this work.

Hebrew day schools are tragically underfinanced. I
should not confine it to our Hillel school. TI guess it is
generally true. Business has certainly never been my
strong point. I was therefore happy when Saul Birn-
baum looked into our financial picture. Saul met with
me and our Board, which he joined as a member. He
accepted the chairmanship of our development pro-

C3

gram, starting with his own generosity. It was not a
i ip in name only. It was work and plans and

aggravation and understanding for untold hours. We

are finally moving in the right direction, to solvency.

He was concerned with our dinner and our other
fund raising efforts and led the way with his advice and
participation on a regular basis.

Saul Birnbaum is not only concerned with our pres-
ent program, he is also the big hope for the future for
myself and our students.

I cannot conceal my deep emotion and disappoint-
ment on the reflection that this man whose mind has lit
up our future and who has spent so much time in loving
concern for our Hillel school might be taken away from
us. He came to us with a contrite spirit and a willing
heart and hand. I have great fear that all the good you
have done to motivate him in behalf of charity work
may be destroyed by the sentence. He has tried and ac-
complished much in a truly sincere effort. Let him stay
with us, I beg of you.

Judge Cooper, I feel a special intimacy with you on
this because we have already received so much help by
what you did. I also feel that nothing but harm can be
achieved by execution of the sentence.

We would be filled with deep gratitude if you, with
your great understanding, would reconsider the sen-
tence of Saul Birnbaum and let him continue to be with
us. Let his wonderful talents continue to work for us
and help us build a future for our youth. I shall deem
it a privilege to sit with you and discuss this matter fur-
ther.

With your help we hope to continue to be a bright
-eacon to our youth and successfully travel the road to
more enlightening contributions to society.

Sineerely yours,
Morzts Scawpman

Rabbi and Dean”
(Emphasis supplied)

a A ne aa ae ia Le tt «Le AOL SS Rl lel

Le LTT LER LAL ae! NEEM GET Stent ety et eee

D-1

APPENDIX D

[Letter, dated December 22, 1967, from Family Court
Judge (now Supreme Court Justice-elect) Maurice
Bernhardi, President of the Pride of Judea Children’s
Services, to Judge Irving Ben Cooper]

“Dear Judge,

I am the President of the Pride of Judea Children’s
Services, an agency that has served the children of our
city for over 50 years.

I write to tell you of my warm feelings toward
Saul I. Birnbaum, a most valued and respected member
of our Board. He is a kind, compassionate and gener-
ous human being. I say this to you, with full awareness
of the circumstances which have brought Mr. Birnbaum
to his present plight.

He has met with me in my chambers and has come to
many conferences at the Pride. I am profoundly im-
pressed with his deep dedication and devotion to our
work. He has developed an understanding of the
urgency of mental health problems and is filled with
compassion for the families and children whom we
serve.

With Mr. Birnbaum, it has been my experience that
no task is ever too small or too great for him to tackle
and he has devoted a major portion of his time to us
on a continuous basis. Our organization’s outstanding
men and women, have great regard for Mr. Birnbaum
and find him almost indespensible as a leader and sup-
porter of our very important service.

It would indeed be a tragedy for our children if
Mr. Birnbaum’s efforts were interrupted. His confine-
ment would remove one of our most ardent supporters
and deal a terrible blow to our programs. I do not refer
to Mr. Birnbaum’s financial generosity alone. I refer

PR aR TAR 8 LT LS RNC 6 Itt i i St COCR ALL RB TEI Pa MAI es 8 ibe DET L Sc Tee a EE Io

D-2

to his active participation, guidance and wisdom in
helping us plan for the future.

One case in point, is Saul’s creation of our special
“School Phobia Program”. Many months ago Saul
visited the Pride Building, he met with the staff, and
observed the scores of deeply disturbed and troubled
children struggling to find their way back through the
deep shadows of mental illness.

Saul was visibly impressed by one very real and
growing problem. There are thousands of children
-who; for one reason or another develop a phobia to
school. Their fear is so intense that they refuse to
attend school; many seek to hurt themselves and in-
flict serious physical damage to their bodies to avoid
school attendance.

Long perieds of time shucin and their troubles
-worsen. The. child is suspended from the Public School
‘ system and before long become trapped by a very
serious emotional problem compounded by a total lack
of education.

‘Saul was deeply touched. He asked what could he
do for these schoo! phobic children. He wanted to help.
And help he did. He established a new program for
these children at the Pride of Judea. This unique pro-
gram in conjunction with the Pride of Judea Clinic and
School encourages the disturbed child to resume his
studies under carefully supervised, warm and under-
standing surroundings. Specially trained teachers offer
him a helping hand, enabling the child to find his way
out of tiie darkness. We dedicated these speciai classes
to Saul and named the program after him.

Because of Saul’s help the children receive individual
therapy and small personalized classroom experience.
After ‘a long period of this intensive therapy some of
the children are aiready able to attend Public School,
accompanied by their “Pride” teacher for about 1 hour
a week.

men AE COR DSS tO aE ®

D-3

It would be a great loss to the Pride of Judea as well
as to these children and their parents if this wonderful
program were curtailed.

Throughout the long history of our agency, men like
Saul Birnbaum have given of their time and energy to
build this wonderful institution. Saul is certainly alll
ing on in this great tradition.

Pride was organized as an orphan. home, but since
1959 we provide the full spectrum of psychiatric ser-
vices for children and their families.

Our annual budget is $640,000 and we provide these
services: 1) Child Guidance Clinic, which is concerned
with the diagnosis: treatment and prevention of emo-
tional problems in children and their families.

Our case load’ is enormous arid our waiting period
is about 114 to 2 years.: To cope with this situation the
_ Pride expanded its range and extent of services and in-
stituted a rapid intake system; family treatment; group
psychotherapy; joint counselling; play therapy; indi-
vidual psychotherapy; individual counselling; group
counselling; family interviewing. Mr. Birnbaum’s ef-
forts in these areas enabled us to expand these pro-
grams rapidly.

We have professiona! affiliations with Columbia
University and New York University Schools of Social
Work and with Yeshiva University Schools of Special
Education. All three assign students for study train-
ing at the Pride.

This important recognition of our high standards
permits us to actively participate in the training of
graduate students and to help create a reservoir of pro-
fessional talent for future staff.

2) The Pride School and Treatment Center for
Seriously Emotionally Disturbed Children is a day
school which is treatment and research oriented.

The children in our school come from all neighbor-
hoods. They are representatives of 500,000 such chil-

D-4

dren in the United States. For every child in the school
there are thousands waiting in their homes.

Judge Cooper you can help us. We need Saul Birn-
baum and his ever present aid and advice. We need his
dedication and ability. The children also look to ycu
for your help. Saul Birnbaum’s conjinement would pro-
foundly affect all those who desperately need his help.
I feel so strongly about this man, that I implore you
to reconsider. I would gladly put aside all of my com-
mitments and meet with you any time at your conven-
ience for further discussion of this problem.

Sincerely,
How. Maurice BerNHARDT

President”
(Emphasis supplied).

E-1

APPENDIX E

[Letter, dated December 23, 1967, from Arthur
Gottlieb, Vice President of the Menorah Home and
Hospital for the Aged and Infirm, to Judge Irving Ben .&§
Cooper ]

“Dear Judge Cooper:

I am writing this letter as a vice president and di-
rector of the Menorah Home and Hospital For The
Aged and Infirm.

In April 1966, Supreme Court Justice Louis Heller
introduced me to Saul Birnbaum with the hope that
some very significant philanthropic effort could be de- ‘
veloped in behalf of Menorah.

The Home is one of the country’s truly outstanding
centers for the aged—providing pioneering efforts
through its day center, its psychiatric clinic for the
aged, its hospital and its residence. A total of 1,000 ‘
aged persons receive help at Menorah. The Home was
founded in 1909 and has been a leader in developing
new concepts in care for the aged.

Menorah has been hailed by Presidents, Governors
and Mayors and works closely in training and research
programs with various universities. The home is held
in high regard in professional and philanthropic circles.

As you well know, raising sufficient funds for the
home is one of the major problems confronting this in-
stitution as every other such facility. Each year a great
effort must be undertaken to meet the increasing costs
of labor, supplies, renovations and new facilities.

This year, Menorah planned and executed its most
successful dinner and journal in its long history. One
of the main reasons was the superb efforts of Saul
Birnbaum. |

Initially, Saul visited the home and studied its opera-
tions. He spoke to our residents and to our staff. He

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familiarized himself with our problems and programs
and plunged into a continuing effort to help our aged.

Saul accepted our invitation to become chairman of
our journal committee. This entails a very large re-
sponsibility. Ana he shouldered that responsibility.
Saul attended a series of approximately 25 meetings
and cocktail parties and organized a successful fund
drive for Menorah through our 1967 Journal.

He helped plan the journal format and ad blanks.
He prepared lists of new names of possible contribu-
tors. [hese names ran into thousands. They covered
virtually every field of endeavor from labor union
leaders to manufacturers, from stock brokers to
attorneys. :

He then helped create a large committee of people
who participated in the fund drive. He worked closely
with them as chairman.

Saul personally contacted hundreds of individuals.
He met with many of them and wrote to them. He
called and cajoled and succeeded in raising a very large
sum of money for the home. He used his personal con-
tacts to enlarge the home’s group of supporters.

His advice was invaluable and our future drives will
undoubtedly benefit greatly from the new directions
. and enthusiasm which he gave to us as well as from the
great number of new supporters whom he brought to us.

Two valuable concepts were encouraged and devel-
_ oped by him during his association with Menorah.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0515%3A2. Public record. Not legal advice.