Petition for a Writ of Certiorari — micro_IA40385608_0097
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ORT U.S Supreme Court, U. S.
FILED
IN THE
Supreme Court of the United States
OctToBER TERM, 1974
No. 74-741
JESSE Ketcuvum, M.D., Petitioner,
v.
State oF NEw York, Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
NEW YORK COURT OF APPEALS
Roy Lucas
Suite 250
Federal Bar Building West
1819 H Street, N. W.
Washington, D. C. 20006
Attorney for Petitioner.
Puess or Byron S. Apams Printine, Inc., WasHincton, D. C.
Ss
INDEX
Page
CiraTion TO Opinions BELOW ..........22000% hikes 1
ES TLS Sal ta SE Te EOE TER TT TE eT ais 2
Questions PRESENTED FoR Review ...... Lee asereces 2
ee a er err fer ee a — 2
INDICTMENT ....... are eae dee ean ha kas eee 3
STATEMENT OF THE CASE .......0s0cese0eee8 ag eee
eR Te Oe Se es ahha swe ew OA oe
If. When and How the Federal Questions Were
Raised and Decided Below ...... MGtaigeuekee ae
Reasons For Grantixne Tne WRIT ..........2.00005- 14
Il. The Court Should Review Dr. Ketchum’s
Fourteenth Amendment Claim that he was
Denied Due Process because the Criminally
Negligent Homicide Statute, N.Y. PexaL Cope
$$ 15.05, 125.10, Never Before Applied in a
Medical Context, and the Indictment, provided
no Notice of the Conduct Charged, nor of
Specific Pre-Existing Professional Standards,
and there was no Evidence on Two Essential
Elements of the Offense ....... ais wanen anos
Il. The Court Should Review Dr. Ketelum’s Four-
teenth Amendment Claim that he was Denied a
Fair Trial beeause the Prosecution for Criminal
Negligence in Performing a Legal Abortion
Resulting in Death Was Permeated with Imn-
proprieties and Error which even the Court of
Appeals Recognized as Including ‘‘grievous
misconduct’? to be ‘strongly condemn[ed]’’...
ge re rae Vaweren cs
18
29
li Index Continued
Page
Aprenpix A--Opinions and Orders Below
Memorandum of the New York Conrt of Appeals,
People v. Jesse Ketchum, No. 419, October 22,
OPW sah eer wer dc hee ecnenictwaciil ecu la
e
Memorandum of the Supreme Court of New York,
Appellate Division, Fourth Department, People v.
Jesse Ketchum, — App. Div.2d —, 358 N.Y.S.2d
303 (4th Dep’t, June 27, 1974) .......0..0.0000. 2a
Judgment of the Supreme Court of New York, Erie
County, Dated October 26, 1973 ................ 2a
Arrendix B—Exeerpts from Reeord
Conclusions rom September 15, 1972, Report of the
December, 1971, Grant Jury of the Connty of Erie
Proposing Recommendations for Legislative
Action in the Public Interest Pursuant to Seetion
125.05.5 of the Criminal Procedure Laws and
Regulations for the State of New York ......... 3a
Excerpts from Transcript of Testimony of Milan M,
Vuiteh, M.D., for the Defendant ................ 4a
TABLE OF AUTHORITIES
ConstTITUTIONAL Provisions:
United States Constitution
OE - Oe «sc inn aay teksten eco ee passim
STATUTEs:
Pe BONE xh oars be Conc oa hekee si ccs 24
N.¥. Penal Code § 15.05. 0... on ccsccasnccecccnce, passim
DN. Pomnl Code €925083 20655 oo eicceek cece 4,5,17
ee, Pomel Code § 190.00: 5 ook ie cceskecn ee. 2, 3, 6, 27
N.Y. Public Health Law § 2801 ..................... 24
N.Y. Rey. Stat., pt. IV, ¢.1, Tit. 1, art. 1,§9 (1829)... 4
2
UB. Code, tithe 98, $1007 oo. oe ccc ccsnccnccceee
Index Continued ili
Page
{"ASES:
Ashton v. Kentucky, 584 U.S. 195 (1966) ........... 14,19
mrown v, Atwen, 92 U5. 322i (IBiG) og vccccccccurse 13
Chambers v. Mississippi, 410 U.S, 284 (1975). .2, 17, 29, 31
Coc ve Gerstein, v6 3 — 695 (S.D. Fla. 1973).... 16
Cole v. Arkansas, 333 U.S. 196 (1948) ........00-.00 27
Connally v. General Satan. Co., 269 U.S. 385
fer eee ee ee ery ee 15
Cool v. United States, 409 U.S. 100 (19735) 2.0.00... 17
Dep't of Motor Vehicles v. Rios, 410 U.S. 425 (1973)... 14
Doe v. Borten, 470 U.S. 179 (1972)... cc ccc nccsees passim
Donnelly v. DeChristoforo, 416 U.S. 637 (1974)
15, 17, 29, 30
Friendship Medical Center v. Chicago Bd. of Health,
—F.2d—(7th Cir., Oct. 350, 1974) (No. 74-1070)... 16
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ... 12, 15, 20
Grayned vy. City of Rockford, 408 U.S. 104 (1972).... 13
Griffin v. California, 380 U.S. 609 (1965) ............ 99
Hodgson vy. Anderson, 578 F. Supp. 1008 (D. Minn.),
appeal docketed sulk nem, Spannaus v. Hodgson,
43. U.S. Law Week 3139 (U.S., Sept. 9, 1974),
FA: PRED Sap sPena ue saeubawncakeaedae ee eon 16
Krulewiteh v. United States, 336 U.S. 440 (1949)..... 12
Lanzetta v. New Jersey, 506 U.S. 451 (1989) 22.2... 12,15
Napue v. Ilinois, 360 U.S. 264 (1959) ............... 12
Oliver, In te, Soa UB. Zot CUPGR) ace cccccecccecss 31
People v Dobbs F erry Medical Paviion, 69 Mise. 2d
886, 332 N.Y.S.2d 186 (Sup. Ct., Westch. Cnty,
1972), rev'd, 40 App. Div. 2d 324 (2d Dep't), aff'd
33 N.Y.2d 584, 347 N.Y.S.2d 452, 301 N.E.2d 435
PPE rere ire ree d, 9, 17, 20, 23
People v. Haney, 30 N.Y.2d 328, 835 NLY.S.2d 403, 284
ee Oe AEE oaks cies cet e kek euacuxt 15
Rabe v. Washineton, 405 U.S. 313 (1972) .......0... 2, 21
Robin v. Incorporated Village of Hempstead, 30 N.Y.2d
347, 354 N.Y.S.2d 129, 285 N.1.2d 285 (1979) Le d
Roe v. Wade, 410 U.S. 113 (1973) ..........00000. passim
Smith v. Goguen, 415 US. Sed hi eee OT TEET: 15, 14
Thompson v. Louisville, 362 U.S. 199 (1960)......... 26
United States v. Cohe n eau ry Co., 255 U.S. 81 (1921) 15
United States v. Vuiteh, 402 U.S. 62 0 0) Gee 31,33
Vachon vy. New Hampshire, 14 U.S. 478 (1974) 2... 26, § 28
iv Index Continued
Page
Vuiteh v. Hardy, 473 F.2d 1370 (4th Cir.), cert. denied,
- ade Ee a tC | a 33
Webb v. Texas, 409 U.S. 95 (1972). ................ ay ht
Word v. Poelker, 495 F.2d 1349 (Sth Cir. 1974) ...... 16
Orner AUTHORITIES:
Aischuler, Courtroom Misconduct by Proseutors and
Trial Judges, 50 Texas L.Rev. 629 2 | 18
Berger, Maternal Mortality Associated with Legal
Abortion in New York State: July 1, 1970—June
30, 1972, 43 Am. J. of Obst. & Gyn, 315 (1974).... 6
Nature and Consequences of Forensie Misconduct in
the Prosecution of a Criminal Case, Note, 54
Colum. L. Rev. 946 (1954) ..................... 18
Pakter, Two Years Experience in New York City With
the Liberalized Abortion Law—Progress and
Problems, 63 Am. J. Pub. Health 524 (1973).... 5
Prosecutorial Misconduct—Reeent Second Cireuit
Cases, Note, 2 Hofstra L. Rev. 385 i eee 18
Tietze, United States: Therapeutic Abortions, 1963-
1968, 59 Studies in Family Planning 5 (1970).... 4
Void-For-Vagueness Doctrine in the Supreme Court,
The, Note, 109 U. Pa. L. Rev. 67 CENOOE chun deck 15
IN THE
Supreme Court of the United States
OcroBeR Tera, 1974
Jesse Kercuum, M.D., Petitioner,
v.
State oF New York, Respondent.
—_—— -_
PETITION FOR WRIT OF CERTIORARI TO THE
NEW YORK COURT OF APPEALS
Petitioner, Jesse Ketchum, M.D., respectfully re-
quests this Court to issue a writ of certiorari to the
New York Court of Appeals to review its judgment in
the above-captioned ease.
CITATION TO OPINIONS BELOW
The memorandum opinion of the New York Court
of Appeals, issued October 23, 1974, and not yet re-
ported, is set out in the Appendix, infra, at la.
The memorandum of the Supreme Court of New
York, Appellate Division, Fourth Department, dated
2
June 27, 1974, is reported as People v. Ketchum, —
App. Div. 2d —, 358 N.Y.S.2d 353 (4th Dep't 1974),
and set out in the Appendix, infra, at 2a.
The unreported judgment of the Supreme Court of
New York, Erie County, dated October 26, 1973, en-
tered on a verdict of guilty, is set out in the Appendix,
infra, at 2a.
JURISDICTION
The Memorandum opinion of the New York Court
of Appeals was issued and filed October 23, 1974, and
constitutes the judgment of that Court (App. la).
No request for rehearing was made.
The jurisdiction of the Court is invoked under 28
U.S.C. § 1257(2) & (3). Cases supporting jurisdic-
tion include: Chambers vy. Mississippi, 410 U.S. 284
(1973); Webb v. Texas, 409 U.S. 95 (1972) (per
curiam); Rabe v. Washington, 405 U.S. 313 ( 1972)
(per curiam).
QUESTIONS PRESENTED FOR REVIEW
I. Whether Dr. Ketchiiin was denied due process,
in violation of the Fourteenth Amendment, where the
criminally negligent homicide statute, N.Y. Prenat
Cove §§ 15.05, 125.10, never before applied in a medical
context, and the indictment, provided neither notice of
the conduct charged nor specific pre-existing profes-
sionai standards, and there was no evidence on two
essential elements of the offense ?
II. Whether Dr. Ketchum was denied a fair trial]
in violation of the Fourteenth Amendment where his
prosecution for criminal negligence in performing a
legal abortion resulting in death was permeated with
3
impropricties and error which even the Court of Ap-
peals recognized as including **grievous misconduct”’
that was to be ‘strongly condemn] ed | **?
STATUTES INVOLVED
N.Y. Pexar Copit § 125.10, at 224 (MeKiiney 1967),
provides :
“A person is guilty of criminally negligent
homicide when, with criminal negligence, he
causes the death of another person.”
N.Y. Penan Cope § 15.05, at 21 (McKinney Supp.
1975-74), provides in pertinent part:
“4. ‘Criminal negligence.’ A person acts with
criminal negligence with respect to a result or to
a circumstance described by a statute defining an
offense wuen he fails to perceive a substantial and
unjustifiable risk that such result will oeceur or
that such circumstance exists. The risk must be
of such nature and degree that the failure to per-
ceive it constitutes a gross deviation from the
standard of care that a reasonable person would
observe in the situation.”
INDICTMENT
The provision of the indictment on which Dr.
Ketchum was convicted states:
“).. THE Graxp Jury or THE County or Enir,
by this indictment, accuse Jesse Kercuum of the
following crime:
“Criminally Negligent Ilomicide, in that he, the
said JESSE KETCHUM, on or about the 16th day of
June, 1971, in the County, with criminal negli-
genee, caused the death of Margaret Louise Smith
by his choice of a surgical procedure, to wit: <
vaginal hysterotomy, under all the circumstances
4
of this case and b, failing to eare for and provide
for her proper medical care, after that procedure
Was utilized.”’
STATEMENT OF THE CASE
I. FACTS
From 1828 until July 1, 1970, the practice of induced
abortion by a physician was illegal by statute in New
York State, except where necessary to save the life of
the pregnant woman.’ This was the case in the over-
whelming majority of American States during. that
time.” Authorities relied upon by this Court in Roe
v. Wade, 410 U.S. 113, 149 n. 44 (1973), estimated that
open legal abortion experience within hospitals and
clinics in the 1960’s was limited to perhaps 8,000 abor-
tious per year, as contrasted with about 4 million
births.*
In other words, abortion experienee was severely re-
stricted until July 1, 1970, when the New York legis-
lature passed a new law permitting elective abortion
to be a matter between physician and patient.
The 1970 law, N.Y. Prenat Cope § 125.05, at 168
(McKinney Supp. 1974-1975), changed this and pro-
vided:
‘>. ‘Justifiable abortional act.”. An abortional
ace 18 justifiable when committed upon a female
1 See N.Y. Rev. Stat., pt. IV, ¢. I, tit. IT, art. 1, § 9, at 661, and
id., tit. VI, § 21, at 694 (1829), cited in Roe v. Wade, 410 US. 113.
138 n.31 (1973).
* Roe v. Wade, 410 U.S, at 139 & nn. 33-36.
3 Tietze, United States: Therapeutic Abortions, 1963-1968, 59
Studies in Family Planning 5 (1970).
‘Td.
5
with her consent by a duly Jicensed physician .. .
Within twenty-four weeks from the commencement
of her pregnaney.”’
The law permitted a physician to perform an abor-
tion upon a patient prior to the 24th week. There was
no requirement that the physician do the procedure
in any particular kind of facility, such as a hospital
or surgicenter,
The official Commentary to the statute pointed out
that many States required hospitalization or resideney,
but that N.Y. Pexan Cope § 125.05 ‘“eontains neither
hospital nor residence requirements.’ Id. at 169,
Similarly, New York courts periodically referred to
this unambiguous fact:
“Abortions were legalized in New York State
in 1970 (Penal Code, § 125.05 [1.1970, ch. 127])
and outside New York City they may be performed
in doctor’s offices (Robin vy. Incorporated Vil. of
Hempstead, 30 N.Y .26 847, 334 N.Y.S.2d 129, 285
N.B.2d 285. People vy. Dobbs Ferry Medical
Pavillion, 40 App. Div. 2d 324, —, 340 N.YS.2d
108, 110 (2d Dep't). aff'd, 33: N.Y.2d 584, 347
N.Y.S.2d 452, 301 N.E.2d 435 (1973).
During the first two vears of legal abortion in New
York, approximately 402,000 abortion patients were
helped in New York City alone?
Against this background Dr. Jesse Ketchum. with
twenty-five vears experience (R TV :2460) "as a board-
*Pakter, Two Years Experience in New York City With the
Liberalized Abortion Law—Progress and Problems, 63 Am. J. Pub.
Health 524 (1973),
® All references are to the Record on Appeal in the New York
Court of Appeals, i.c., R 1:100 = Voiume I. page 190,
6
certified specialist in obstetries and gynecology, began
practicing in Buffalo, New York, in the professional
medical building at 50 High Street across the street
from Buffalo General Hospital (R IT:689, ©69).
Tn Buffalo Dr. Ketchum specialized in abortion prae-
tice. He received referrals from clergy, priests, min-
isters, and local physicians (R 1:578).
The climate in Buifale, however, was apparently not
favorable to open, legal abortion practice outside of
the hospital. Although abortion had been legal for a
week, Dr. Ketchum was raided at his office on July 6,
1970, by the same police officers who investigated this
‘ase a vear later. (R TLP:906, 908).
After the July 6, 1970, raid, Dr. Ketchum continued
his medieal practice. Then, on June 16, 1971, a patient
Margaret Louise Smith expired after an abortion, and
Dr. Ketehum was subsequently indicted for criminally
negligent homicide, N.Y. Pexar Cope $§ 15.05, 125.10.
This ease is the only known instanes un which a physi-
cian has been prosecuted in comiection with a death
from a legal abortion. There were 29 deaths from
446,052 legal abortions in New York State from July
1, 1970, to June 30, 19724 but no other physician was
prosecuted,
Also, this is the only prosecution of a physician un-
der the criminally negligent homicide statute since it
was passed. The eases have typically been brought
for drunken driving. See Amnotations to N.Y. PENAL
Cope §§ 15.05, 125.10.
7 Berger, Maternal Mortality Associated with Legal Abortion in
New York State—July 1, 1970-June 50, 1972-43 Am. J. of Obst.
& Gyn. 315 (1974).
7
Margaret Louise Smith came with her common law
husband, Billy Ray Elienburg, from Ypsilanti, Mich-
igan, to Buffalo, New York. on the morning of June
16, 1971. Her abortion procedure was performed by
Dr. Ketchum some time after 10 o0’¢lock acm. (R
1:416).
One of Dr. Ketchum's assistants, Judith Hassett
Nicosia, testified that ‘nothing was abnormal” (R
1:512) when she checked on the patient around noon,
On a subsequent routine check, however, she spoke
to the patient and saw that there was “bleeding enough
to worry me and to summon the doctor.” (R 1:516).
Dr. Ketchum “went immediately into the room with
Margaret Smith. (d.). He responded “instantane-
ously”? when summoned. (R 1564).
Nonetheless, the patient's condition became such that
Dr. Ketchum asked that the reseue squad be summoned
to take her to the Buffalo General Ilospital across the
street. (R1:527). This was done, but the patient un-
fortunately expired and was pronounced dead on
arrival.
By 5:45 pan. Lt. Leo J. Donovan, Chief of Homicide.
who had raided Dr. Ketchum the year before, was at
the doctor's office with four other officers, (R ITT :901,
909). No Miranda warnings were given. (Id. at 902),
The officers ‘secured’ the offiees (id. at 850). took
various charts and other items (Id. at 597-598), photo-
graphed the treatment room (Id. at 966), and ques-
tioned Dr. Ketchum. (Jd. at 658, 670, 675, 675, 910,
954, 964).
That evening an autopsy was performed, with Lt.
Donovan present. (R1:261).
A grand jury investigation and indietment followed.
8
At the trial Dr. Netchum defended, through counsei
and expert testimony, on several grounds.
First, the statute and indictment provided no fair
notice of the conduct charged. As defined, criminally
negligent homicide entails failure to perceive “a sub-
stantial and unjustifiable risk,’ N.Y. Pexan Cope
§ 15.05(4), that death will oceur, and a “gross devia-
tion’? from a reasonable standard of care.
The indictment provided little further illumination.
It charged Dr. Ketchum with performing a ‘vaginal
hysterotomy”? which was not the procedure shown by
the autopsy at all, as appears more fully hereinafter.
The indictment also used the term: ‘under all the
circumstances of this case.’ What circumstances?
This provided the defense with u.terly no warning
whether fault was to be charged in regard to anesthesia,
oxygen use, laboratory tests, intravenous liquids, or
any other aspect of the clinic, Dr. Ketchum's practice,
or his staff. A bill of partienlars had been of no
aid also.
Details of the proseeution’s prima facie case did not
begin to emerge clearly until the trial, and these eon-
tinued to vary throughout the proceedings. They
showed a very sharp dispute as to what happened the
day the patient expired.
Apparently, the prosecution theorized that the pa-
tient had been more than 12 weeks pregnant (R 1:58),
that a vaginal hysterotomy procedure (Id. at 55) had
been performed, that such a procedure was not stand-
ard in the loeal medieal community (7d. at 61), that
there were not but should have been blood or blood
derivatives in Dr. Ketchum’s clinie (/d. at 60), that
during the operation there was a tear in the cervix
9
which was only partially sutured and from which the
patient did bleed (/d. at 60), that Dr. Ketchum did
not adequateiy locate the source of bleeding, that the
patient expired as a conseqnence, and that the sum
total came to criminally negligent homicide,
The defense was straightforward.
Counsel repeatedly attempted to ascertain the de-
tailed basis of the criminal charges, all to no avail, as
appears in the next section.
Expert testimony and medical texts were introduced
to show that the medical procedure was not a “vaginal
hysterotomy,’’ but a simple D&C. (R III :1478,
11:1059, I1:755-756). As appears, the prosecution
charged the wrong operative procedure,
Defense counsel repeatedly showed that there were
no preexisting definite legal standards regarding the
performance of abortions in New York in 1971. In-
deed, the New York Court of Appeals heid the only
set of regulations unconstitutionally vague in People
V. Dobbs Ferry Medical Pavillion, 33 N.Y. 24 O84, 347
N.Y.S, 2d 452, 301 N.E. 2d 435 ( 1973), before the trial
of this case.
Estimations of the patient’s pregnancy ranged from
12 to 20 weeks, according to the witness, and testimony
showed the uncertainties in niaking such estimates.
(R T1T:1488, 1502, 11 :1041).
By expert testimony and eross-examination of prose-
cution witnesses, defense counse] sought to establish
that this had been a case of uncontrollable bleeding
caused by amniotie fluid embolism. The medical de-
tails of this defense go beyond the scope of this Peti-
tion, but, briefly, such a cause of death is uncommon,
10
although not rare, and is beyond the physician’s con-
trol. (R 111:1693-1700, I11:1500).
In lay terms, amnictic fluid is the waterlike sub-
stance in the sac which hokis the fetus. If this fiuid
gets into the woman’s bloodstream, it goes to the hings
and usually causes the blood to cease clotting. Death
by uncontrollable bleeding over minutes or hours is
the result (R LI1:1693-1696).
Two experts with background experience concern-
ing amniotic fluid embelism testified that this was a
eause of death here. (Ro ILT:1700, 1500). This was
the logical explanation put forth by the defense, but
which did not prevail.
Dr. Ketchum is at liberty on $10,000.00 bail pending
disposition of this Petition. The sentence imposed was
three years at Attica State Prison.
Il. WHEN AND HOW THE FEDERAL QUESTIONS WERE RAISED
AND DECIDED BELOW
Defense counsel raised a Fourteenth Amendment
elaim of Jack of notice in the statute and indictment
throughout the proceedings below. Objections to indi-
vidual and cumulative deprivations of a fair trial were
also raised repeatedly and ruled upon adversely.
The affidavit of counsel supporting the first Motion
to Dismiss Indictment (R TV :2489-2540) stated:
**96) This indictment does nothing to inform us
of what particular actions or instances of
inaction on the part of the accused are being
deemed criminal by the State.’ (Id. at
2498).
The trial judge denied this aspect of the motion with
one conclusory paragraph. (Jd. at 2773).
1l
A second Motion to Dismiss Indictment (R IV :2780-
2795), more specifically argued:
(a) The indictment and corresponding Bill
of Particulars violate the defendant's rights to due
process of law;
“(b) The indictmen: is defective in that the
statutes defining the crime charged are unconstitu-
tional or otherwise invalid ...’? (Id. at 2780)
The supporting affidavit carefully analyzed the wn-
constitutional indefiniteness of the statute, indictment,
and bill of particulars, repeatedly suggesting that Four-
teenth Amendment standards were not being met. (Id.
at 2781-2795, © T(a)-(f), 15-18, 23, 26, 27, 30, 31, 34.
30, 06, 37, 38, 39, 40, 52, 53, 54, ), O60, 58, 59, 60).
Again the trial judge denied the motion stating
simply: [D]Jue deliberation having been had
thereon, the motion of the defendant is denied in all
respects.”” (RLV :2798).
Thmediately before the trial, defense counsel re-
newed the above metions, and they were denied. (R
T:38). A defense «quest for a definition of a prima
facie ease was der de (R151).
During the tria, cfense counsel objected to the mis-
conduct and rulings which are the subject of this
appeal. Reeord citations appear, infra, where each
point is outlined. Appendix B. lufra, contains see-
tions of the testimony cf particular portance to tke
Federal constitutional and fair trial issues presented
by this Petition.
At the close of the evidence, defense counsel renewed
all motions, including those for a mistrial. (R IV:
2138). These were again denied. (Id. at 2148).
12
Objections to the prosecutor’s inflammatory summa-
tion and further motions for mistrial were made at the
end of summation. (R IV :2353). These were denied.
(1d. at 2354).
Requests to charge and objections to the charge were
all denied. (R IV:2413).
On the intermediate appeal to the Supreme Court,
Appellate Division, Dr. Ketchum challenged the crimi-
nally negligent homicide statute as unconstitutionally
applied to him. Brief for Defendant-Appellant, pp.
4-18, People v. Ketchum, — App. Div. 24 —, 358
N.Y.S,. 2d 353 (4th Dep't 1974). Reliance was placed
on numerous Fourteenth Amendment due process
cases from this Court. E. g., Giaecio vy. Pen nsylvania,
382 U.S. 399 (1966) ; Lanzetta v. New Jerse y, 806 U.S.
451 (1939).
Similarly, Dr. Ketchum argued to the Appellate Di-
Vision that his constitutional right to a fair trial had
been violated, citing numerous examples, including the
cross-examination of his chief expert witness, Dr.
Milan Vuitch, and the prosecutorial misconduct oecur-
ring on summation. Brief for Defendan -Appcellant,
pp. 18-36, People v. Ketchum, supra. Again, reliance
was placed on important fair trial—due process deci-
sions from this Court. FE. g., Napue v. Illinois, 360
U.S. 264 (1959) ; Kralewitch v. United Siutes, 336 U.S.
440 (1949).
Nonetheless, the Appellate Division affirmed with-
out opinion, (App. A at 2a).
Leave was granted to appeal to the New York Court
of Appeals, where Dr. Ketchum reiterated and
strengthened his Federal constitutional arguments.
13
Further cases on lack of notice in the application of
indefinite statutes were cited. E. g., Smith v. Goguen,
415 U.S. £66 (1974) ; Grayned v. City of Rockford, 408
U.S. 104 (1972).
Similarly, Dr. Ketchum brought in the Fourteenth
Amendment fair trial decisions cited above. The prose-
cution, it should be noted, .lied heavily on Donnelly
Vv. DeChristoforo, 416 U.S. 637 (2974), which was a
straightforward Fourteenth Amendment due process—
fair trial case.
The opinion of the New York Court of Appeals,
while not extended, (App. A at la), must have deter-
mined both sects of Fourteenth Amendment due process
issues,
This was a case where decision of each Federal ques-
tion ‘‘was necessary to the determination of the cause,
and... the judgment as rendered could not have been
given without it.” Brown vy. Atwell, 92 U.S. 327, 329
(1876).
The New York Court of Appeals expressly held that
“the misconduct does not reflect a pattern throughout
the trial...’ People v. Ketchum, 35 N.Y. 2d —, 360
N.Y.S. 2d —, — N.E. 2d — (Oct. 23, 1974) (No. 419),
This holding must entail a conclusion that the trial as
a whole was not so unfair as to abridge the Fourteenth
Amendment due process right to a fair trial. The point
was briefed and argued.
Similarly, the New York Court of Appeals was
squarely faced with a constitutional challenge to the
application of the criminally negligent homicide stat-
ute, N. Y. Pena Copr §§ 15.05, 125.10. The State
argued that People v. Hancy, 30 N.Y. 2d 328, 333
N.Y.S. 2d 403, 284 N.E. 2d 564 (1972), foreclosed this
14
issue. Bricf for Respondent, pp. 22-24, People v.
Ketchum, supra. The New York Court of Appeals
apparently agreed, finding sufficient proof of guilt,
which would not be pertinent if the statute as applied
were regarded as constitutionally suspect.
If the constitutional basis of the New York Court
of Appeals decision should appear unclear, it would be
proper for this Cowt to grant the petition for eer-
tiorari, vacate the judgment, continue bail, and remand
for a more specifie constitutional determination, as
was done in Dep’t of Motor Vehicles vy. Rios, 410 U.S.
425 (1973) (per curiam). Such a course may be more
particularly warranted where, as here, there is no pos-
sibility of an independent and adequate state ground.
REASONS FOR GRANTING THE WRIT
The Court should review this case for three principal
reasons.
Lack of Notice of Pre-Existing Legal Standards
First, the New York Courts upheld the convietion
for criminally negligent homicide, although that stat-
ute had never before been applied in a medical context,
the indictment and statute provided grossly insufficient
notice of the conduct charged, there were no clearly
defined pre-existing standards of medical practice in
the abortion area, and there was no evidence on two
essential elements of the offense,
The lack of fair notice and vagueness in the New
York criminally negligent homicide statute affect im-
portant privaey and due process rights and raise sub-
stantial Federal constitutional questions at least as
serious as those involved in numerous previous deci-
sions by this Court. F. 9., Smith v. Goguen, 415 U.S.
566 (1974) ; Ashton v. Kentucky, 384 U.S. 195 (1966) ;
15
Giaccio Vv. Pennsylvania 382 U.S. 399 (1966) ; Lanzetta
v. New Jorsey, 306 U.S. 451 (1939) ; Connally vy. Gen-
eral Coustruction Co., 260 US, 385 (1926); United
States v. Cohen Grocery Co, 255 U.S. 81 (1921) ; see
generally Note, The Void-for-Vagueness Doctrine in
the Supreme Court, 109 U. Pa. L. Rev. 67 (1960).
The criminal negligence statute, historically applied
only in automobile accident cases, speaks of failfure]
to perceive a substantial and unjustifiable risk’? and of
“gross deviation from the standard of care that a rea-
sonable person would observe in the situation.”? N.Y.
PrNxAL Cope § 15.05. There is no reference to medical
standards and how these standards are to be deter-
uuned. That is the crux of this case. Unable to rely
on pre-existing published jegislative standards, the
prosecution attempted to develop proof during the trial
of supposed medical standards in an area where there
had been very little medical experience to be incorpo-
ated er post facto into the eriminal code by the jury
as it deliberated,
As more fully appeas hereinafter, the case resulted
ina flagrant Fourteenth Amendment due process viola-
tion because, as a matter of law, the statute, indictment,
and testimony showed an elementary lack of fair notice
and absence of pre-existing legal standards, Further,
there was utterly no competent evidence on two essen-
tial elements of the offense as ultimately defined during
the trial by the proseeution,
Impact on Roe v. Wade and Doe v. Bolton
Second, the conviction in this case must be over-
turned in order to prevent the emergence of unreasou-
ably restrictive local standards in communities hostile
to abortion and concomitant prosecutorial cireumven-
16
tion of Roe v. Wade, 410 U.S. 113 (1973), and Doe v.
Bolton, 410 U.S. 179 (1973).
Abortion, like any other medical procedure, carries
with it some risk of complications, and even death.
The risk, however, is and has been found by this Court
to be minimal. As Roe noted, [mortality rates for
women undergoing early abortions, where the proce-
dure is legal, appear to be as low as or lower than tie
rates for normal childbirth.’’ 410 U.S. at 149, n. 44.
Roe also pointed out that ‘tany interest of the State
in protecting the woman from an inherently hazardous
procedure, except when it would be equally dangerous
for her to forego it, has largely disappeared.’’? 410
U.S. at 149.
The Roe and Doe opinions stressed that the State
could not impose a hospital or licensed facility require-
ment on the performance at least of first trimester
abortions, Roc, 410 U.S, at 163; Doe, 410 US, at 194-
195; accord, Word v. Poclher, 495 F.2d 1349, 1351-1352
(8th Cir. 1974) ; Friendship Medical Center v. Chicago
Bd. of Wealth, — F.2d — (ith Cir, Ovt. 30, 1974) (No.
74-1070) 5 Hodgson v. Anderson 378 F. Supp. 1008, 1017
(D, Minn.) (three-judge court), appeal dochketed sub
nom, Spannaus Vv. [lodgson, 43 US. Law Week 21239
(U.S., Sept. 9, 1974) (No, 74-254); Coe v. Gerstein,
376 FY. Supp. 695, 696 (S.D, Fla. 1973) (three-judge
court).
With respect to early second trimester abortions, a
State may but has no obligation to “adopr standards
for licensing ali facilities where abortions may be per-
formed so long as those standards are legitimately re-
lated to the objective the State seeks to aecomplish.”’
Doe, 410 U.S. at 195.
17
However, the State of New York chose not to adopt
any such standards. N.Y. Penan Cope § A052. Que
effort to impose standards on abortion facilities was
ruled out as unconstitutionally vague in People vy.
Dobbs Ferry Medical Pavillion, 83 N.Y. %d 584, 347
N.Y.S. 2d 452, 301 N.E. 2d 435 (1973), prior to this
trial, Physicians were according!s free in 1971 to per-
form first or seeond trimester abortions in their hos-
pitals, clinics, or offices, according to their best medical
judgment.
The prosecution of Dr. Ketchum is an effort to invent
standards where there were none before and to incor-
porate such standards er post facto into a felony erimi-
nal statute. Jf the effort sneceeds, any community
hostile to abortion can define malpractice as restrie-
tively as supporting testimony can be found, and prose-
cute any physician performing abortions for deviations
from that standard, The net result will be to dilute
Roe v. Wade and Doe vy, Bolton to the poiit that
patients seeking abortions and physicians willing to
perform them are at the merey of local community
climate,
Grossly Unfair Trial
Third, the New York courts permitted repeated
prosecutorial misconduct and trial irregularities far
more serious than these recently diseussed in Donnelly
Vv. DeChristoforo, 416 US. 637 (1974), Chambers v.
Mississippi, 410 US, 284 (1973), Cool v. United States,
409 U.S. 100 (1973), and Webb v. Texas, 409 U.S. 95
(1972),
The New York Court of Appeals agreed that there
had been “grievous misconduct’? (App. A at 1a) by
the preseeution which that Court “strongly con-
18
demnfed]."" (/d.) However, the Court saw no ** pat-
tern throughout the trial,’ « conclusion to which Peti-
tioner strenuously objects.
As more fully appears hereinafter, the trial was a
model of calculated, systematic prosecutorial miscon-
duct designed not to determine guilt or innocence but
solely to convict a medieal man for alleged conduct
which neither he nor any other person could possibly
have known might someday be a criminal offense.
The problem of prosecutorial and trial judge miscon-
duct, moreover, is recurring, of national interest, and
appropriate for careful, regular review by this Court.
Commentary on the subject has been extensive.*
This particular ease is a good example heeause it
presents the cumulative impact of ‘‘grievous miscon-
duct”? throughout a trial.
I. THE COURT SHOULD REVIEW DR. KETCHUM’'S FOURTEENTH
AMENDMENT CLAIM THAT HE WAS DENIED DUE PROCESS
BECAUSE THE CRIMINALLY NEGLIGENT HOMICIDE STAT-
UTE, NEVER BEFORE APPLIED IN A MEDICAL CONTEXT,
AND THE INDICTMENT, PROVIDED NO NOTICE OF THE
CONDUCT CHARGED, NOR OF SPECIFIC PRE-EXISTING
PROFESSIONAL STANDARDS, AND THERE WAS NO EVI-
DENCE ON TWO ESSENTIAL ELEMENTS OF THE OFFENSE.
Appeals involving claims of Stattitory vagueness
come to this Court each Term, Many, as here, claim a
Fourteenth Amendment violation in the manner a
statute was applied.
“See, e.g., Note. The Nature and Consequences of Forensic Mis-
conduct in the Prosecution of a Criminal Case, 54 Corum. L. Rev.
946 (1954): Note, Proseeutorial Misconduet—Recent Seeond Cir-
cuit Cases, 2 Horstra L. Rev. 385 (1974); Alschuler, Courtroom
Misconduct by Prosecutors and Trial Judges, 50 Texas L. Rev. 629
(1972).
19
While First Amendment vagueness claims have
most often been reviewed, [|v Jague laws in any area
suffer a constitutional infirmity... 27? Ashton ve Ken-
tuchy, d384 U.S. 195, 200 (1966). The Court has not
hesitated to rectify fundamental unfairness in the ap-
plication of indefinite statutes or rules.
This case would be an excellent one for review be-
cause it involves the important issue of fair notice, the
novel problem of criminal negligence, and the need to
protect physicians from the imposition of unan-
nhouneed community medical standards in the sensitive
abortion context.
Lack of Notice in Statute
The criminally negligent homicide statute, attacked
on its face, aud as applied. is not a model of explicit-
hess, even in the drunken driving context where it is
almost always applied. Derived in part from the
Model Penal Code, the statute has been widely eriti-
eized as not a defensible predicate for criminal lia-
bility. Jerome Hall, Negligout Behavior Should Be
Evrcluded From Penal Liability, 638 Conum. L. Rev.
632 (1963).
Two principal ambiguities in the statute affect this
case.
First, the definition for criminal law purposes of
“the standard of care that a reasonable person would
observe in the situation,’ N.Y. Penxan Cope § 15.05(4),
in this context, provides no notice of any specific ac-
tions or inactions. Potentially, it allows, without warn-
ing, serutiny of every step taken or every step which
could have beer taken by Dr. Ketchum on the day the
patient expired.
20
Similarly, the definition of “gross deviation,’ N.Y.
PENAL Cope § 15.05(4), is obscure.
In an area with evolving medical standards such as
abortion, where community emotions cannot be ex-
eluded, a physician is at the merey of a lay jury and
any one or group of physicians hostile to him.
The decision of the New York Court of Appeals,
upholding the statute as it had done before, is inconsist-
ent with many Fourteenth Amendment due process
eases from this Court.
For example, Giaccio vy. Pennsylvania, 382 U.S. 399,
404 (1966), struck down a statute allowing imposition
of costs on an acquitted defendant who had been guilty
of some undefined ‘misconduct.’ reprehensible’? con-
duct, or improper” conduct, This was the type of law
which
‘leaves the publie uncertain as to the conduct it
prohibits or leaves judges and jurors free to de-
cide, without any legally fixed standards, what is
prohibited and what is not in each particular
ease.’’ 382 U.S. at 403.
In this case the jury was free to adopt any phy-
sician’s opinion as to what constituted a proper medica]
standard, and a gross deviation therefrom, even though
Dr. Ketchum had no advance warning of what that
opinion would be, since there were no legislative regula-
tions and those which did exist had heen struek down
as unconstitutionally vagve in People v. Dobbs Ferry
Medical Pavillion, 33. N.Y.2d 584, 347 N.Y.S.2d 452,
301 N.E.2d 435 (1973).
This Court has rei eatedly held that:
‘“*[t] avoid the constitutional vice of vagueness, it
is necessary, at a minimum that a statute give fair
21
ng that certain conduct i is proseribed.”’ Rabe
mn . ashington, 405 U.S. 5 Ds 31d (1972).
Whereas in Rube there was no fair notice that
criminal liability depended upon the place a film was
shown, here the statute had never even been applied
ina medical setting and provided no notice of medical
standards and how they were to be ascertained.
Review of this case and reversal are warranted on
the above basis alone.
Lack of Notice in Indictment
While a specific indictment or prosecutor-drafted bill
of particulars cannot cure an unconstitutional statute,
14 can worsen the fair notice problem. Here the indict-
ment is open-ended, previding ne neties of what ce
ineant by “under all the ciremmstances of the case.’
This allowed the prosecutor te work out the standard
of care and elements of the offense wp to the eve of
trial.
The definition of **vaginal hysterotomy’’ also devel-
oped to be a point of contention. Dr. Patterson, for the
prosecution during his definition of ‘*vaginal hyster-
otomy”” acknowledged that: ‘*T am describing the pro-
cedure, not what was in the pathology report.” (RI:
1056). Dr. Ketchum, however, was prosecuted on the
basis of the pathology report. If the procedure there
described was not a vaginal hysterotomy, he was en-
titled to an acquittal!
Further, the indictment charged a failure to provide
“proper medical care’? after the operation. The spe-
cific recommended aftercare was not defined, nor did
the indictment explain how the alleged failure of un-
specified aftercare caused death. There never was a
specification of errors or omissions of conduct.
22
In short, Dr. Ketchum went to trial without fair
notice of the acts and/or omissions charged, nor of
the specific standards by which he was to be judged.
The need to deter such fundamental deprivations of
elementary due process warrants review by this Court.
Lack of Pre-Existing Legal Standards
The absence of prevailing legal standards is shown
by numerous factors, The grand jury which indicted
Dr. Ketchum itself concluded that there were no re-
quired legal standards pertaining to abortion in New
York. The Conclusions from the September 15, 1972,
Report of the Grand Jury are included in Appendix B,
at 3a-da, and are an admission against interest in
view of the majority's explicit objection to ‘demand
abortions,” (App. Boat 3a), or elective abortion as
then legalized in New York.
The Grand Jury Report recommended the passage
of “apprepriate legislation which sets by law. the
preper medical gnidelines, standards, and conditions
under which abortions ean be performed.’ (App. B
at 16b). Such standards did not exist at that time
under the law! The Grand Jury repeated that ‘no
where in the law is the doctor required to perform his
services in properly equipped clinies or hospitals, un-
der strict sanitary conditions.’
If that was the case, Dr. Ketehum should never have
been indicted,
Dr. William EK. Mosher, Commissioner of Health for
Erie County, was called by the proseention. He testi-
fied it was correct that *felach physician was free to
choose whatever procedure they decided was best at the
23
tine in their office ...”’ (R 111:1120). Over objec-
tion (/d. at 1122) Dr. Mosher testified about the State
Sanitary Code requirements, although the Code had
been declared unconstitutionally vague as applied to
abortion facilities. People vy. Dobbs Ferry Medical
Pavillion, supra.
Even though he was oblivious of the Dobbs Ferry
Case, Dr. Mosher candidly acknowledged the absence
of pre-existing legal standards for abortion practice in
physicians’ offices.
Again, the lack of standards requires an outright
reversal. The Record is full of evidence, which this
Court may and constitutionally should review which
shows an absence of pre-existing, clearly defined legal
standards for the medieal practice of abortion.
Dobbs Ferry Case
The treatment by the New York Court of Appeals
of abortion clinie regulations in People v. Dobbs Ferry
Medica? Pavillion, 33 N.Y2d 584, 347 N.Y.S.2d 452,
B01 N2d 435 (1973). also shows the absence of
reasonably ascertainable pre-existing medicolegal
standards, Dobbs Ferry was not even mentioned in the
opinions below although it showed as a matter of law
an utter absence of clearly defined professional stand-
ards for the performanee of abortions in facilities
within New York.
The Dobbs Ferry ease originated as a civil action by
the Attorney General to enjoin the operation of an
abortion ¢linie for purported violation of the New
York Public Health Law. The People sought to de-
fine a physician group practice as a “hospital.” re-
quiring approval of the State Publie Health Council
24
~under N.Y. Public Health Law § 2801 and 10C N.Y.
C.R.R. § 700.2[4] (6), the State Hospital Code.
The New York Court of Appeals affirmed on July 3,
1973, an order of the Appellate Division, 40 App. Div.
2d 324, 340 N.Y.S.2d 108 (2d Dep't 1973), invalidating
as uneconstitutionally vague and overbroad the very
definitions of ‘hospital,’ ‘facility,’ and “‘elinie,”’ as
applied to a group of physicians performing abortions
ita group practice.
If the only statutes in New York regulating abortion
facilities were unconstitutionally vague, how then could
a physician such as Dr. Ketchum he held criminally
responsible for the violation of those standards when
combined with similarly vague notions as to what was
and what was not acceptable medical practice ?
Roe and Doe Show Shifting Medical Standards
The opinion of the Court in Roe v. Wade, 410 USS.
115, 141-148 (1975), shows the extent to which medical
standards in the abortion field have shifted rapidly in
the short space of a few years.
Discussing the position of the American Medical
Association, 410 U.S. at 141-144, the Court notes a
transition from ‘*general suppression’? of abortion in
the 19th century to a more permissive posture in 1967,
allowing abortion for health” reasons if ‘performed
in a hospital aceedited by the Joint Commission on
Accreditation of Hospitals.’? 410 U.S. at 143. (The
latter restriction, of course, was held unconstitutional
in Doe v. Bolton, 410 U.S. 179, 193-195 (1973)).
Within the AMA, in 1970, Roe recalled, there were
noted by its study committees a ‘polarization of the
medical profession on this controversial issue: division
mong those who had testified; a difference of opinion
z5
among AMA councils and committees; ‘the remarkable
shift in testimony’ in six months... and a feeling ‘that
this trend will continue.’ ’? 410 U.S. at 143.
The AMA picture, then, is one of shifting standards.
A similar pattern was found within the American Pub-
lic Health Association and the American Bar As-
sociation, Roe v. Wade, supra 410 U.S. at 144-47.
While the mandatory hospitalization requirement of
the 1962 Mopen Pexan Cope § 230.3(2), was accepted
by many States and the Amerizen Law Institute, ex-
perience proved the restriction winecessary and, ul-
timately, unconstitutional. Doe v. Bolton, supra, 410
US. at 193-195. The Commissioners on Uniform
State Laws, by 1972, also decided not to mandate hos-
pitalization for abortion patients. Roe v. Wade, supra,
410 U.S. at 146-47 & un. 40-41.
The mumerous briefs of amici before this Court in
Roe vy. Wade, 410 U.S. 113 (1973), and Doe v. Bolton,
410 U.S. 179 (1973), further ilhminate the often phil-
osophically-based differences of opinion on acceptable
medical standards in the abortion field.
While the Brief for Amici Curive American College
of Obstctriciaus and Crynccologists et al., pp. 80-90,
cited in Doe vy. Bolton, 410 US. 179. 193 1.12 (1973),
argued that abortion was a relatively safe medical
procedure which should net be restricted to hospitals
itlone, sharply contrasting briefs were filed by other
groups and physicians.
The Motion aud Bricf Amicus Curiac of Certain
Phaysiciaus, Professors, and Fellows of the American
College of Obstetrics and Gynccolouy [sic]* In support
* The organization is correctly styled ACOG, the American Col-
lege of Obstetricians and Gynecologists.
26
of Appellees, filed jointly in Roe vy. Wade and Doe vy.
Bolton devoted 26 pages to 2 section, id, pp. 32-58,
entitled ‘* Medical Hazards of Legally Inducted Abor-
tion.’ This Brief strongiy opposed the position ul-
timately taken by the Court and went so far as to
state: **The clain. that abortion is X-times as safe as
childbirth is a fabrication invented to sell abortion.”
Id. at p.to.
It is beyond the scope of this Petition to demonstrate
why the Court correctly invalidated Jaws mandating
hospitalization for all abortion patients. The perti-
nent point for this case is that notions of acceptable
medical practice for the performance of abortions do
vary widely and have changed greatly in reeent years.
A physician such as Dr. Ketchum should not be left
to the merey of local physicians’ standards when a
jury could adopt testimony directly at odds with the
national constitutional standards enunciated in Roe y.
Wade and Doe y. Bolton.
No Evidence on Essential Elements of Offense
A further basis for review is that the People pro-
duced no competent evidence whatever on two essen-
tial elements of the offense.
This Court has repeatedly held that ** ‘a conviction
based on a record lacking any relevant evidence as to
a crucial element of the offense charged ... violate[s]
due process.’’?’ Vachon v. New Hampshire, 414 US
478, 480 (1974) (per curiam). See also Thompson vy.
Louisville, 362 U.S. 199 (1960).
In Vachon, supra, a conviction was overturned for
the absence of any evidence that the appellant had
27
personally sold or caused to be sold to a minor a certain
button.
Here there was utterly no competent evidence on two
essential clements of the offense of criminally negligent
homicide, N.Y. PENAL Cope §§15.05, 125.10, as further
explicated by the indictment.
No Evidence of “Vaginal Hysterotomy”
The indictment charged that Dr. Ketchum had
chosen to do an operation called a ‘vaginal hyster-
otomy.”’ There was uo proof of that charge. The
prosecution named the wrong operation as much as
if they had charged au abortion done by removing the
appendix,
A ‘vaginal hysterotomy,”” by definition, requires,
inter alia, an ineision into the uterus, from which the
fetus is removed, (RI11:1478). Dr. Vuiteh. who had
been trained in vaginal surgery at Vienna and had
performed several dozen such procedures (Id. at 1575),
explained the procedure, its elements, and that the
pathology report simply showed no evidence of a vag-
inal hysterotomy. (/d. at 1478). He explained cor-
rectly that his description coincided with that in all
the medical texts. (Id. at 1482).
The indictment error was that a vaginal hysterotomy
does not inelude an incision in the cervix, but rather in
the uterus, which is a different organ. In short, the
proscention was trying Dr. Ketchum for something he
never did. Cf. Cole v. Arkunsus, 333 U.S. 196, 201
(1948).
Dr. Patterson, testifying for the People, admittedin
his definition of vaginal hysterotomy that: ‘tI am de-
seribing the procedure, not what was in the pathology
28
report.” (R II:1056). In other words, he was de-
scribing what Dr. Ketchum was indicted for, not what
he did! Neither Dr. Patterson (Jd. at 1005) nor Dr.
Gopelrud (R 1:829) had ever performed a vaginal
hysterotomy in any event.
The defense suggested that the tear in the uterus
resulted from the use of packing forceps while insert-
ing a gauze pack to stop bleeding. That is why the
tear was concentrated down in the cervix rather than
up in the uterus.
In sum, there was no evidence, as a matter of law,
that a vaginal nysterotomy was performed. A. con-
viction based upon no evidence on an clement of the
offense violates due process. Vachon v. New Hamp-
shire, supra.”
No Evidence of “Gross Deviation”
The prosecution did not establish pre-existing legal
standards by which Dr. Ketchum could guide his medi-
cal practice, as discussed above. It follows that no
“gross deviation”? from such standards could be es-
tablished, as required by N.Y, Pena Cope § 15.05(4).
No effort, indeed, was even made to quantify the ex-
tent of departure from those standards the prosecution
attempted to develop during tl.c course of the trial.
All that emerged from the testimony was that cer-
tain medical experts, who had never done a vaginal
hysterotomy, thought it was dangerous and more com-
plicated than necessary. They thought all seeond tri-
Tf one were to assume the contrary, then the Fourteenth
Amendment would surely require that Dr. Ketchum be notified in
some way that vaginal hysterotomies were illegal in New York.
29
mester abortions should be done in a hospital, a “th
this was not the law.
There was no testimony to the ertent of danger when
coutrasted, for example, with childbirth as in Roe v.
Wade, 410 U.S. 113, 149 & n. 44 (1973).
In sum, there was no evidence from which to eon-
clude that a “gross deviation’? from acceptable medi-
cal standards had oceurred.
II. THE COURT SHOULD REVIEW DR. KETCHUM’S FOURTEENTH
AMENDMENT CLAIM THAT HE WAS DENIED A FAIR TRIAL
BECAUSE THE PROSECUTION FOR CRIMINAL NEGLIGENCE
IN PERFORMING A LEGAL ABORTION RESULTING IN
DEATH WAS PERMEATED WITH IMPROPRIETIES AND
ERROR WHICH EVEN THE COURT OF APPFALS RECOG.-
NIZED AS INCLUDING “GRIEVOUS MISCONDUCT” TO BE
“STRONGLY CONDEMN[ED)].”
In each recent Term this Court has reviewed several
‘ases involving claims that a defendant was denied a
fair trial. Such cases involve claimed violations of
specific provisions within the Bill of Rights, e.g., Grif-
fin v. California, 380 U.S. 609 (1965), trials which are
alleged to have been generally unfair, ¢.7., Chambers
Vv. Mississippi, 410 U.S. 284 (1973), or, as here, a com-
bined claim that specific fundamental rights were
abridged and that the trial as a whole was fundamen-
tally unfair.
Misconcuct Much More Serious Than in Donnelly
v. DeChristoforo
In the New York courts the People relied heavily
on Donnelly vy. DeChristoforo, 416 U.S. 637 (1974),
as sanctioning even more serious prosecutorial mis-
conduct than that involved here. Deunelly, however,
is not an invitation to the type of ‘‘grievous miscon-
duct’’ which the New York Court of Appeals found
30
below. Indeed, this is precisely the variety of case to
which the Court vowed not to extend the Donnelly
rationale.
The Court in Donnelly dealt solely with ‘‘two re-
marks made by the prosecutor during the course of his
ratner lengthy closing argument to the jury.’ 416
U.S. at 640. One, “the expression of a personal opin-
ion as to guilt,”’ 416 U.S. at 640, was found improper,
but not a denial of due process.
A second, ‘‘more serious’? remark was a suggestion
that the defendant and his counsel ‘‘ ‘hope[d] that
you [the jury would] find him [defendant] guilty of
something a little less than first-degree murder.’ ’? 416
U.S. at 640. One interpretation of this remark was
that the defendant may have sought to plead guilty
to a lesser offense, and thereby admitted some guilt.
This Court found the ‘*more serious’? remark im-
proper but not a denial of due process because (1)
*[cJonflicting inferences,’’ 416 U.S. at 645, could have
been and in fact were drawn from the remark, and (2)
the remark “was but one moment in an extended trial
and was followed by specific disapproving instrue-
tions.’’ 416 U.S. at 634.
By contrast, the present ease involves numerous
unambiguous instances of prosecutorial misconduct
and trial error which permeated the entirety of the
pretrial and of the trial.
51
C.css-Examination of Principal Expert Defense Witness Coa-
cerning Alleged Criminal Abortion Convictions Which Did
Not Occur and Would in Any Event Have Been Constitu-
tionally Irrelevant After Doe v. Wade and Doe v. Bolton.
As the Court stated, reversing a conviction in
Chambers vy. Mississippi, 410 U.S. 284, 294 (1973):
“The rights to confront and cross-examine wit-
nesses and to call witnesses in one’s own behalf
have long been recognized as essential to due
process.”
In this case Dr. Ketchum’s right to call witnesses
was seriously abridged by the treatment of his chief
medical expert witness, Dr. Milan Vuitch of Washing-
ton, D.C., who had been involved in United States v.
Vuitch, 402 U.S. 62 (1971).
This was undoubtedly one of the *‘examples of griev-
ous misconduct by the prosecution in cross examina-
tion’? (App. A at la) referred te by the Court of Ap-
peals.
Dr. Vuitch was called as the primary defense medi-
cal expert concerning the central questions in the case.
The direct testimony of Dr. Vuiteh had been highly
favorable t. Dr. Ketchum and, if accepted, would un-
questionably have required a verdict of not guilty.
(R L11:1473-1509).
To prevent this, the prosecutor set out to destroy Dr.
Vuitch in the eves of the jury in a mamer highly of-
fensive to fair trial due process concepts embodied in
the Fourteenth Amendment.
This *‘grievous misconduct’? interferred with Dr.
Ketchum’s ‘‘right to offer testimony,’ Zu re Oliver,
330 U.S. 257 (1948), and right ‘to call witnesses in
[his] own behalf,’’ Chambers v. Mississippi, 410 U.S.
32
284, 294 (1973), in a manner far more serious than
that in the Chambers ease.
On direct examination it was shown that Dr. Vuitch
had impressive qualifications and experience, both in
Europe and in the United States (R III :1473-1477).
He was board-certified, had 34 years of surgical ex-
perience, and particularly had been trained in veginal
surgery.
Dr. Vuitch carefully explained precisely why the
medical reports conclusively showed no evidence of a
vaginal hysterotomy. (R_ III:1478-1482). He ex-
plained how, when, why and where the tear probably
took place. (R 111:1491-1496). He went over his own
experience with amniotic fluid embolisms. He con-
cluded from the medical photographs that the deceased
patient had probably been from 12 to 14 weeks preg-
nant (R II1:1502), a borderline first trimester ease.
On cross-examination the prosecutor wasted no time
in committing reversible error.
First, Mr. Cleary stated:
Q. As has Dr. Ketchum, you have had troubles
with the law heecause of abortions, haven’t you?
(R IIT:1514) (Emphasis added).
Then Mr. Cleary asked:
Q. Have you been convicted, Doctor, for illegal
abortions?” (R 11T:1514).
Before time for an objection, Dr. Vuiteh acknowl-
edged that he had been indicted. (7d.) ,
Defense counsel objected repeatedly and moved for
a mistrial. (/d.). The trial court denied the motion
without explanation, and briefly told the jury to disre-
33
gard the line of questioning. The entirety of that
testimony appears in Appendix B hereto, at 4a-6a.
The foregoing is equalled, but not excelled in the
prosecutorial misconduct throughout the trial. It is
reversible error in more than one respect.
The prosecutor knew or should have know the re-
ported litigation history of Dr. Vuitch, and that in fact
all of the charges were disposed of, leaving no con-
victions.
United States v. Vuitch, 305 F.Supp. 1035 (D.D.C,
1969), modified, 402 U.S. 62 (1971), indictment dis-
missed, Crim. No, 1460-70 (D.D.C. Nov. 4, 1971), was
a major ease in this Court as was Vuiteh v. Hardy, 473
F.2d 1370 (4th Cir.), cert. denied, 414 U.S. 824 (1973).
At least the prosecutor should have heen aware of
those eases, which had been fully reported long before
questioning.
It is unthinkable to allow a prosecutor to ignore
published decisions from this Court, while requiring
the Petitioner to defend himself on a charge of
violating totally unpublished, indefinite, medical
standards.
The fact of indictment or, indeed, conviction on il-
legal abortion charges was utterly irrelevant and
highly prejudicial. Even a conviction would be in-
admissible since Roe v. Wade, 410 U.S. 113 (1973), is
the classie type of case to be applied retroactively.
This has been done in the Second and Fourth Cireuits.
United States ex rel Williams v. Preiser, — F.2d —
(2d Cir.), cert. denied, 43 U.S. Law Week 3331 (U.S.
Dee. 9, 1974) (No. 74-78); Vuitch v. Hardy, 473 F.2d
1370 (4th Cir.), cert. denied, 414 U.S. 824 (1973).
34
Here the prosecutor portrayed the chief defense
medical expert as a multiple criminal offender when,
in fact, any conduct had been constitutionally priv-
ileged
This was seriously aggravated by the insulting man-
ner in which the prosecutor referred to the witness:
Below are some examples:
“T am thankful you are in the District of
Columbia.”’ (R 111:1531)
“We all didn't come from Vienna, Doctor.”
(/d. at 1526).
“But he is wrong and you are right from way
down in Washington, D.C.’ (Jd. at 1624),
“We all have the distinctive impression of how
well you like yourself.” (Jd. at 1630).
The proseeutor suggested further that Dr. Vuitch
openly ignored the law before Rue vy. Wade (R III:
1519), and performed abortions for any reason. (Jd.
at 1518).
During summation, the prosecutor characterized
Dr. Vuitch as “[t]he Viennese sausage maker...”
(R IV :2334) and “an arrogant self proclaimed king
of the abortionists .. . coming here for nothing but to
protect somebody else who may be looking for his
record.’’ (Id.)
This language, tasteless in any forum, is an out-
‘ageous Violation of civilized courtroom standards.
It is a gross appeal to regional and ethnie bigotry.
In isolation or taken with other trial misconduet, it
shows reversible error.
35
Verbal Abuse of Dr. Ketchum
The abuse of Dr. Vuitch was only exceeded by that
which the prosecutor reserved for the defendant, Dr.
Ketchum.
In summation the prosecutor represented that ‘‘in
the case of Dr. Ketchum the abortions were not re-
moved from the back alleys, from the hotel rooms... .’
(R 1V :2269-70).
Repeatedly Dr. Ketchum was accused of practicing
medicine solely for financial gain:
‘*... [I]e has got to clear that table to put some-
body else on it and to get another five hundred
bucks.” (/d. at 2293),
“2. 4 T|hat is why Ketchum performs this kind
of procedure, it is simply money. You don’t
have to do many of them at $500 a copy each day to
understand the kind of money that you and I
don’t even dream about.”? (Jd. at 2295).
Similarly, the prosecutor made insistent appeals to
local and regional prejudice:
“*. .. [I]e moves here like some carpetbagging
charlatan with his little black bag... .’? (Ud. at
2294).
‘*... the out of state carpetbagging physician who
came in here.”’ (Jd. at 2301).
“The carpetbagger himself... .’’ (Id. at 2318).
Those outrageous remarks, reminiscent of appeals
to racial prejudice in another era, could not have been
harmless. If a prosecutor can get by with the remarks
made above, there are no limits to the extent of
“grievous misconduct’? the New York Court of Ap-
peals will sanction.
36
CONCLUSIONS
Petitioner has 2 Federal constitutional right not to
be prosecuted unless his conduct was proscribed by
pre-existing standards of law as to which he had fair
notice, and unless evidence of each element of the of-
fense was shown.
Petitioner further has a constitutional right under
the Fourteenth Amendment to a fair trial before an
impartial judge and jury.
These important rights were denied in the eourts
below.
This Petition presents two substantial Federal ques-
tions of importance to the maintenance of civilized
Fourteenth Amendment standards. The Court
should grant review.
Respectfully submitted:
Roy Lucas
Suite 250
Federal Bar Building West
1819 H Street, N. W.
Washington, D. C. 20006
Attorney for Petitioner
Ea tbls KSALY See Antes Se BS.
SMM Sa R seat Bet cE ae ase he io seal PREY Se OS DER NCAR Radeon we
APPENDIX
ey OF ey
Ps.
LY I LO wD
la
APPENDIX A
Memorandum of the New York Court of Appeals,
People v. Jesse Ketchum, No. 419,
October 23, 1974
STATE OF NEW YORK
COURT OF APPEALS
No. 419
Tue Prope &., Respondent,
v.
Jesse Ketcuum, Appellant.
MEMORANDUM
This memorandum is uncorrected and subject to revision
before publication in the New York Reports.
The order appealed from should be affirmed.
The record discloses examples of grievous misconduct by
the prosecution in cross examination and summation which
we strongly condemn. However, since the overwhelming
proof is all but conclusive of defendant’s guilt, and the mis-
conduct does not reflect a pattern throughout the trial, but
rather reactions at certain times of stress, reversal is not
warranted.
Order affirmed ina memorandum. Concur: Breitel, Ch. J.,
Gabrielli, Jones, Wachtler, Rabin and Stevens, JJ.
SIME LEWES abies”
rain repel
Ra? a ale ee
2a
Memorandum of the Supreme Court of New York, Appellate
Division, Fourth Department, People v. Jesse Ketchum,
— App. Div. 2d —, 358 N.Y.S.2d 353 (4th Dep’t, June 27,
1974)
Peop.e of the State of New York, Respondent,
v.
Jesse Ketcuum, Appellant.
Supreme Court, Appellate Division, Fourth Department.
June 27, 1974. Raichle, Banning, Weiss & Halpern, Frank
G. Raichle, Buffalo, for appellant. Edward C. Cosgrove,
Dist. Attorney, Judith Blake Manzella, Buffalo, for re-
spondent. Judgment unanimously affirmed. (Appeal from
Judgment of Erie Supreme Court, Marshall, J., convicting
defendant of Criminally Negligent Homicide.) Present:
Marsn, P. J., and Witmer, Snmions, Gotpman and Det Vec-
cHIO, JJ.
Judgment of Conviction Appealed From
Tue Peopiz,
Vv.
Jesse Kercuvum.
Ocr 26 1973 Frederick Marshall, J. S. C. Dan Pearson,
Stenog. E. Carey Cantwell, Asst. D. A. Roy Carlisi, Coun-
sel for deft. moves to set aside the verdict as being incon-
sistent with the verdict and against the weight of the evi-
dence. Motion denied.
The Court sets bail at $10,000.00.
OrveRED aNp Apsvpcep, that the defendant be sentenced
to an indeterminate sentence of imprisonment which shall
have a maximum term of 3 years and the defendant be
committed to the eustody of the State Department of Cor-
rection and he shall be delivered to the Attica Correctional
“
ou
Facility at Attica, New York, there to be dealt with in ac-
cordance with the laws pertaining to his sentence.
Oct 26 1973 Order staying judgment pending appeal.
APPENDIX B—EXCERPTS FROM RECORD
Conclusions From September 15, 1972 Report of the December,
1971 Grand Jury of the County of Erie Proposing Recom-
mendations for Legislative Action in the Public Interest
Pursuant to Section 125.05-3 of the Criminal Procedure
Laws and Reculations for the State of New York
The entire body of the Grand Jury with all 17 voting
members in total and harmonious agreement most strongly
recommend that the Legislature of the State of New York
take immediate steps to pass appropriate legislation which
sets by law the proper medical guidelines, standards and
conditions under which abortions can be performed.
This position is not meant in any way to compromise the
majority’s position against demand abortions but only to
protect women who are being aborted while the present law
is in effect.
The discovery that the only condition placed upon a jus-
tifiable abortional act is that it be performed on a consent-
ing female by a duly licensed physician outraged the sensi-
bilities of this body. For we have discovered that no where
in the law is the doctor required to perform his services in
properly equipped clinics or hospitals under strict sanitary
conditions.
Indeed this Statute as it now stands unassisted and un-
implemented by legally legislated medical standards and
guidelines, did not in fact remove abortions from dingy,
unequipped and unsanitary hotel rooms but simply made
those places legally acceptable operating rooms.
4a
Any duly licensed physician who so chooses can now turn
any office, hotel room or even a garage into an operation
amphitheater running patients through an assembly line
fashion with little or no preparation and absolutely no after
care, because the law does not require him to follow gener-
ally acceptable medical standards,
Serious abortional surgery can be performed in a room
or office which has no equipment at all other than a sealpel,
a curette, sutures and a needle. No blood, no trained per-
sonnel, no proper after care facilities, little or nothing are
presently required by law.
We therefore strongly urge the Legislature of this State
to rectify that frightening oversight and legislate into law
proper medical standards and guidelines along the lines of
those recommended by the New York Medical Association
to all of its members. These guidelines must be backed up
not simply by the request or suggestion of the Medical As-
sociation of New York but by the mandates of proper stat-
ute under this State Public Health Law. Attached hereto
and made a part of the reeommendation of this Grand Jury
is a copy of those guidelines,
The Grand Jury respectfully requests that an Order be
made and entered accepting and filing this report as a pub-
lic record; further that the District Attorney be authorized
and directed to transmit copies of this report to members
of tiie New York State Legislature, the members of the
Court of Appeals of the State of New York, and any other
official having a proper interest in this report.
& * * * =
Milan Vuitch for Defendant, Cross. [1514]
A. General and gyn surgery, that is my specialty.
Q. As has Dr. Ketchum, you have had troubles with the
law because of abortions, haven’t you?
Mr. Caruist: I object to the question and ask to have it
stricken and the court instruct the jurors not to consider
that as evidence,
5a
Tne Court: The jury will disregard it.
Mr. Caruist: I move for a mistrial at this time.
Tue Court: Motion denied.
Mr. Caruist: Exeeption.
Tue Court: You are not to consider that in any way,
members of the jury.
By Mr. CLeary:
Q. Have you been convicted, Doctor, for illegal abor-
tions? A. I was indicted 16 times.
(). For performing illegal abortions, right? A. I was
instrumental in legalization of the abortion surgery in the
United States, as you know very well, Mr. Attorney.
Q. I understand that, Doctor. You have been convicted,
have you not, for illegal abortions? A. That conviction
was e1 used by the Federal Court.
Q. You are still not answering my question, Doctor.
[1515]
Mr. Carutsr: I object.
Mr. Cleary: I would appreciate it if you would.
Mr. Caruist: I am going to continually object to this
whole line of questioning.
Tur Witness: Yes, I was convicted in the lower courts.
Mr. Caruist: This is irrelevant, immaterial and highly
prejudicial to the defense. If you continue allowing this
type of questioning I ask the court to allow the doctor to
explain the fact that the Supreme Court of the United
States vindicated him and overruled and overturned every
one of those decisions.
The Court: Wait a minute, counsel. You are saying two
things. We are talking about two things. We are talking
about eenvictions first of all and convictions are proper to
impeach the credibility of the witness.
Mr. Caruist: I’m not so sure, your Honor. If I may be
heard for a moment, I’m not sure the doctor understands
that an overturned reversed case on the part of a higher
court indicates—
Tne Court: Are you saying that his convictions were
[1516] reversed?
6a
Mr. Carust: Yes, sir.
Tue Court: By a higher court?
Mr. Canuist: Yes, sir. |
Tue Court: His convictions were erased?
Mr. Caruist: He has no convictions.
Tue Court: Why doesn’t he say that?
Tue Wiryess: I am not legally trained, your Honor.
Mr. Caruist: He is a physician.
Tue Covert: He knows whether or not there was a re-
versal of a conviction. Were you ever convicted and was
that conviction reversed? Is that what you are telling us.
Tne Wirness: Yes,
Tue Covert: Then you have never been convicted.
Tue Wirnes: That’s correct,
By Mr. Cieary:
Q. Now then, Doctor, at this time you are professionally
performing abortions, is that correct? A. That’s right.
80 percent of my practice or 75 percent of my practice are
therapeutie abortions.
Q. You keep using the term therapeutic abortion. A.
That’s correct.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.