Brief in Opposition — Steinberg v. Pennsylvania

IN THE E, ROSE: sc -.

e

Supreme Court of the Uhited-States-—

October Term, 1971.

Nos. 71-153 and 71-201.

McCLOSKEY & CO., INC. and McCORMICK.-

TAYLOR ASSOCIATES,

in No. 71-201,

| Petitioners,

FRANK M. STEINBERG,

in No. 71-153,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF

PENNSYLVANIA.

JOHN Rocers Carrot,

Special Assistant District Attorney,

JAMES D. Crawrorp,

Deputy District Attorney,

RicHarp A. SprAGvue,

First Assistant District Attorney,

ARLEN SPECTER,

District Attorney,

Counsel for Responaent.

Room 666, City Hall

Philadelphia, Pennsylvania 19107

Huntzinger Printing Corp., Appellate Printers, Camden, N. J. ESRD

ee

INDEX

PAGE

Statement of the Case ............................. 1

Reasons for Not Granting the Writ ................. 2

1. The Nature of the Investigating Grand Jury .... 2

2. The Reasons for the Classification .............. 3

3. The Pre-Trial Posture of es 4

NE RF ie ones ys se vicoeevcvessvevccosee, 5

TABLE OF CITATIONS

PENNSYLVANIA CASE:

Commonwealth v. Kilgallen, 379 Pa. 315, 108 A. 2d

TERRE, 7a eee ee 2

FEDERAL CASEs:

Coleman v. Alabama, 399 U.S. 1 ( __ . SAE Ae 3,4

Dandridge v. Williams, 397 U. S. 471 > ee 3

.

EAN EN OR OER TORREY BRERA RAEI 8

MN eT oS ee ae hal POT big eal ae Manes Aaa

STATEMENT OF THE CASE.

The Court of Common Pleas of Philadelphia quashed in-

dictments against these petitioners on the ground that they

had been denied preliminary hearings required by Rule

116 of the Pennsylvanie Rules of Criminal Procedure. The

Court consciously avoided the equal protection question by

holding petitioners entitled to preliminary hearings as a

matter of state law. The Pennsylvania Supreme Court re-

versed that state law decision and also observed that the

historical classification of methods of instituting criminal

proceedings in Pennsylvania, which allows indictment

without preliminary hearings, inter alia, in cases where the

Presentment of an investigating grand jury detailing the

evidence and naming the witnesses,’ is approved by the

convening court for submission to an indicting grand jury,

is a reasonable classification.

Analyzing the reasons for the classification and its his-

torical application, the Pennsylvania Supreme Court con-

cluded that there was a rational basis for the distinction

drawn and uniformly applied. That court also considered

the actual effects of the different procedures on the ability

of an accused to prepare his defense and found the ad-

vantage of a preliminary hearing illusory by comparison.

It remanded the cases for disposition of other undecided

pre-trial motions and trial. At that point these petitions

were filed.

There is presently pending before this Court, in addition

to the present petition, a petition of the Commonwealth of

Pennsylvania in Pennsylvania v. James C. McCloskey, Paul

J. Marzullo and Thomas Taylor as of October Term, 1971,

No. 71-374, to which petition answers have been filed in

this Court.

1“As the record now before us discloses, a presentment is a rather

complete summary of the grounds on which the investigating grand

jury making its recommendation, and contains descriptions of both

the physical evidence and the testimony which prompts its action.”

Pa. Supreme Court Opinion, p. 21, McCloskey petition, Page 66.

REASONS FOR NOT GRANTING THE WRIT.

1, The Nature of the Investigating Grand Jury.

The Philadelphia investigating grand jury of March

Term, 1969 sat for seventeen months. neard over four

hundred witnesses; produced &fteer. presentments which

generated over 2,400 indictments agains: forv-six inti.

viduals and nineteen firms, including city ofScials arc

others doing business with the City on a wide variecy of

charges. Some of these cases have Deer tried. sthets ere

pending. This grand jury had investigating functions oziv:

it did not indict. No investigating grand jun i

the law of Pennsylvania may return en indicomer:

Before a presentment is returned by suck a Penns lvaria

grand jury, a majority of its tweniv-three memiers mun

find “probable cause” to recommend indicurer: Tees :z

the same standard applied by the jucge et <

hearing. The grand jury hears testimony un

order to make its findings. It is controled actually Ov the

Court of Common Pleas, not by the pr<secutor. It cals its

witnesses as it chooses, not at the choice cf the fren -

attorney. All witnesses are sworn by the Court ex zz

opinion below makes clear, must be protected by the Court

The presentments which form ihe basis -f che rae.

ments are replete with detail. unliz :

dents fromm Pennsylvania precedents see Commmr-cerist

v. Kilgailen, 379 Pa. 315, 108 A. 24 725 2

jurisdictions where only conclusions cr skecchy details ere

supplied and names of witnesses, for examp.e. withheld

The variations of these substitute pre-tria! veticles serves

to vary the impact of the denial of 2

limit the precedential value of anv decision of ths Coun

and make the issues less clear than the: 212)

the petitions.

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2. The Reasons for the Classification.

ania requirements for impaneling an in-

d jury. stressed o+ the court below in judg-

Lessifcetion involved, make

DIOS cutors option in Penn-

inc.uding the federal.

1970. Such

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s. This underiebi+ impcrvar.t state interest

€ Us Of tne investigating grand jury

evidence Dut also to the sequel of avoiding pre-

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evidence based on sworn testimony and documents, finding

probable cause on the oath of a majority of twenty-three

grand jurors, then approved by the convening court which

has the power to review the grand jury’s transcript.

3. The Pre-Trial Posture of the Case.

The procedural point at which this decision occurs indi-

cates its lack of finality in this litigation. Other pending

motions’ and trial may yet dispose of these cases on non-

federal grounds and make this Court’s intervention un-

necessary, even at the conclusion of the trials. The pre-

trial posture also makes it impossible to assess the actual

impact of the absence of preliminary hearing upon the

potential trial.

The opinions of a majority of this Court in Coleman x.

Alabama, supra, indicated the appropriateness of such

pragmatic testing in determining the denial of counsel-

equal protection question in that case, but this record only

brings the cases to indictment. Post indictment discovery

procedures under the Pennsylvania rules and their appli-

cation to cases in which no preliminary hearing is h2ld are

an uncharted area in Pennsylvania law.’ The future of this

litigation could so alter its course that the measurable dif-

ference in pre-trial advantages may be arguably very slight

at the time the case comes to trial.

* See footnote 11 to Opinion of Pennsylvania Supreme Court; Stein-

berg Petition, page 17.

3 See footnote 28 to Opinion of Pennsylvania Supreme Court; Stein-

berg Petition, page 31.

CONCLUSION.

For the foregoing reasons, respondent respectfully sub-

mits that the Petitions should be denied.

Respectfully submitted,

JOHN ROGERS CARROLL,

Special Assistant District Attorney,

JAMES D. CRAWFORD,

Deputy District Attorney,

RICHARD A. SPRAGUE,

First Assistant District Attorney,

ARLEN SPECTER,

District Attorney,

Counsel for Respondent.