# Petition for a Writ of Certiorari — micro_IA40385608_0097 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0097%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1974 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0097%3A1. Public record. Not legal advice.