# Brief in Opposition — Steinberg v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0103%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition - **Published:** January 1, 1971 - **Citation:** 404 U.S. 1000 ## Text 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 +e we. act that - GSes SO AOVE.ODEC SECEUSE OF tne ver fa t t : . yes - oe we ‘oe -e -- eee teen of or. 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Odi fs ne prosecution is alcavit Of ar interested party, the ormation is largely mies require a an exception defendant is a 4 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0103%3A2. Public record. Not legal advice.