Petition for a Writ of Certiorari — Steinman v. Nadjari

“TSA ‘ealiiesseeten

Forse COUR tT, Us & ; MAY 13

In THE

Supreme Court of the United States

October Term 1974

A seienstiai v4 4- ] 429

WILLIAM STEINMAN,

Petitioner,

Vv.

MAURICE H. NADJARI, individually and

as Special Deputy Attorney General

of the State of New York,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

HERVEY & LEGUM

Attorneys for Petitioner

AARON NUSSBAUM

Of Counsel

16 Court Street

Brooklyn, New York

Tel. (212) 237-1717

TABLE OF CONTENTS

Page

oT RE ETL BFS UE LT Lee 2

P5550 2% on op wale p waa WEGA LE CaO Ss ee 2

CORI FEROS iis noes i dc canns os siscececebuse ee

The Constitutional Provisions and State Statutes in Issue... 3

GW FOR SURG CN ec ei e cece co vicsceces 4

ONE GT CONT RU Sn 6 6 Sa ah cuhehesevgsrocunserined 5

New York Criminal Procedure Law ...............00005 6

gee Pn en eer rs care 9

POINT I—The Extraordinary Prosecutorial Misconduct

Conclusively Adduced At Bar Warranted Equitable In-

tervention For Federal Declaratory And Injunctive Relief,

Under The Fifth And Fourteenth Amendments Of The

CTR iis ss Gaede RRR rch dn teen es cues 20

POINT II — Petitioner has Been Irreparably Injured in

that he has Been Utterly Deprived of an Adequate Remedy

at Law and of all Meaningful Access to the State Courts ... 26

CIE ak nik Wik. 0.xa elas CRW er hh eh 43

a

APPENDIX

Memorandum and Order Dated August 8, 1974 ...... A-l

Memorandum and Order Dated December 6, 1974.... A-6

Amended Memorandum and Order ................ A-12

iil

Table of Authorities

Page

United States Constitution, Fifth and Fourteenth

Ame. coca vs 560 0g es * Cmte OR TT ae 2

Tide 18, UBL. M1. sgn cvewccnccereenss es test" 14

Tihs 16, UGE BOD scone enon coesrnc cern Ni Ss 14

Title 28, U.S.C. 1254(1), 1SAB(B) . 2. ceccccccsceveces 2

Title 28, U.S.C. 2281, OS po sebone ne enes ents? 15

New York State, Governor’s Executive Order

in: Ok See wes n vee ntivernonsr e888! 8205S 16,17,39

New York State Judiciary Law, Sec 149 ..---eeeeeeree 5

New York Criminal Procedure Law, Secs.

140.20, 180.10, 180.60 ...---+ereerrrerrrt 6, 8

New York State Penal Law, Sec. 100.00 ...-----++***" 14

New York State Penal Law, Secs. ;

40.05, 190.25, 195.00, 210.10, 210.15, 250.05 ieawes 5,14,16

Cases Cited

Allee v. Medrano, 416 US GOB ok ec cccescddeene eee 41

Cameron v. Johnson, 390 SUE BEE oka voice case sess 40

Coe v. Armour, 237 US 413, 424-5 .. cece cercreree 38

Coleman v. Alabama, 399 TEE ‘oseeccve ea 6 Po ee 19

Coleman v. Burnett, 477 F2d 1187 ...----eeeererree 28

Gerstein v. Pugh, -—US—— (1975) .- eee ee rece eecere® 28

In re Murchison, 349 US 133. «.-++--sererrrrrrrr rt 35

Kugler v. Helfant, --US——, Apr. 28,1975 ...--+-++9> 29

Mapp v. Ohio, 367 US 643,660 ..-.--+--++: ese Rial 20

Matter of Klein v. Murtagh, 44 App.Div.2d 465 ..----- ae

Matter of Moritt v. Nadjari, 46 App.Div. 2d 784 ...----> 33

Matter of Nigrone, 46 AD 2d 343 ..----ceeeeeecrrrre® 23,33

Matter of Reynolds v. Cropscy, 941 NY 389 ....---+++: 29

: Matter of Wendell v. Lavin, 246 NY 115,123 ....--+->> 30

O’Donohue v. U.S., 289 US BAG Lise Vec css veevess 32

Olmstead v. United States, 277 U re 42

iv

Cases Cited (Continued)

People v. Bell, 45 App.Div.2d 362 VTC T TET EEE Te

People ex rel Jackson v. Potter,

BTV. STB ic ieee ccc ccncccccvcccccccccecs

People ex rel S.L. & T. Co. v. Extraordinary

Term of Supreme Court, 220 NY 487 ...........4--

People v. Harding, 44 App.Div.2d 800 ........ diccens

People v. Klinch Packing Co., 214 NY 121 ............

People v. Rao, 46 App.Div.2d 343 ........ ee eee eeee

People v. Steinman, 44 App.Div.2d 839 ...........46-

People v. Levy, ——App.Div.2d—— (2d Dept., 1975)...

Providence Bank v. Billings, 29 US 514 ...........4.:. ‘*

Rochin v. California, 342 US 165 ........ cece eee eens

Roller v. Holly, 176 US 398,409 ... ........ceceeees

Rosalsky v. State, 254 NY 117 ........ccceeeececees

Russell v. United States, 41195/23 .........eeeeeees

Samuel v. Mackell, 401 US 66,67 .........ccceweeees

Sherman v. United States, 356 U.S. 369 ............4:.

Springfield v. Philippine Islands, 177 U.S. 189, 201 .....

Steffel v. Thompson, 415 US 452, 460- ..............-

Stuart v. Palmer, 74 NY 183 ............00008. 10 5wS

MONE Ci GPts UE TIED. heb nc ehh bccaccecrcccccesoené

Tumey v. Ohio, 273 US 510, 532 ........ cee eeeeees

United States v. Archer, 486 F.2d 670 ...............

United States v. King, 482 F.2d 768 ...........22008:

United States v. McCord, 509 F.2d: 334 .............

United States v. Toscanino, 500 F.2d 267, 274 .........

United States v. Walker, 473 F.2d 186 ...........005.

Younger vy. Harris, 401 US 37,45 .........cceceeeees

19,29,32

33

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

WILLIAM STEINMAN, ;

Petitioner,

Vv.

MAURICE H. NADJARI, individually and

as Special Deputy Attorney General

of the State of New York,

Responéent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

The Petitioner William Steinman prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit dated April 14,

1975, affirming a judgment of the United States District

Court for the Eastern District of New York, rendered on

December 13, 1974, dismissing an action for a Declaratory

Judgment and for injunctive relief against a pending state

criminal prosecution, under the Due Process Clause of the

Fifth and Fourteenth Amendments of the Constitution of —

the United States, and 28 USC 1343(3).

2

OPINIONS BELOW

No opinion was rendered by the Court of Appeals.

The unreported memorandum opinions of the District

Court, dated August 8, 1974 and December 6, 1974

respectively, are set forth in Appendix A of this Petition

(denying application for a three-judge court (A-1—A-S);

dismissing complaint for declaratory and injunctive relief

. (A 6-12).

JURISDICTION

The judgment of the Court of Appeals was entered on

April 14, 1975. _

The jurisdiction of this Court is invoked under 28 U.S.C.

1254 (1), 28 U.S.C. 1343(3) and the Due Process Clause of

the Fifth and Fourteenth Amendments of the Constitution

of the United States.

QUESTIONS PRESENTED

1. In entrapping and arresting Petitioner without ever

arraigning him in a criminal court, did Petitioner suffer

great and immediate irreparable injury by depriving him of

the right to counsel and to a preliminary examination,

during a critical stage of the proceedings against him?

2. Did Respondent Nadjari engage in a pattern of bad-

faith enforcement of the state’s criminal laws, by un-

constitutional means, (a) by entrapping and arresting

defendants on a wholesale scale, with no intention to

arraign or prosecute them in a court of law, but to coerce

and intimidate them by gestapo tactics into entrapping

innocent judges, secretaries and other public servants into

3

the commission of crime; (b) by systematic state-

manufactured criminality in the illegal deployment of

undercover agents posing as “convicted” defendants in

courts of law, involving wilful perjury, subornation of

perjury and fraud and deception of grand juries, district

attorneys and the courts, although Respondent had been

repeatedly forewarned to desist therefrom by the state and

federal courts; and (c) by systematically engaging in other

prosecutorial misconduct shocking to the conscience, ~

offensive to the rule of law and to the fundamental tenets of

decency?

3. Was Petitioner deprived of all meaningful access to

the state courts, and of a fair and sufficient opportunity for

vindication of federal constitutional rights, where the state

statute under which the Extraordinary Term of the

Supreme Court was organized and convened was facially

unconstitutional and void (a) as inherently violative of the

independence of the judiciary and the Separation of

Powers; and (b) as inherently violative of Petitiwoner’s

procedural rights to due process of law, and to the equal

protection of the laws?

THE CONSTITUTIONAL PROVISIONS AND

STATE STATUTES IN ISSUE.

Constitution of the United States

Fifth Amendment

“No person *** shall be *e* deprived of life, liberty, or

property, without due process of law eee”,

Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the

4

right *** to be confronted with the witnesses against him

*** and to have the Assistance of Counsel for his defense.”’

Fourteenth Amendment

‘** *** nor shall any State deprive any person of life,

liberty or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of

the laws”’.

STATUTES OF THE UNITED STATES

United States Code

28 U.S.C. 1343 (3) Civil rights and elective franchise.

The district courts shall have original jurisdiction

of any civil action authorized by law to be com-

menced by any person:

(3) To redress the deprivation, under color of

any State law, statute, ordinance, regulation,

custom or usage, of any right, privilege or im-

munity secured by the Constitution of the United

States or by any Act of Congress for equal rights of

citizens or of all persons within the jurisdiction of

the United States;”

New York State Constitution

Article 6, Section 27 New York State Constitution.

“Section 27 (Extraordinary Term of the Supreme

Court):

The Governor may, when in his. opinion the

public interest requires, appoint Extraordinary

plore abe

a nla ao be Hew LE atin he

5

Terms of the Supreme Court. He shall designate

the time and place of holding the term and the

Justice who shall hold the term. The Governor may

terminate the assignment of the Justice and may

name another Justice in his place to hold the

term.

Statutes of New York

Section 149. Judiciary Law.

“Section 149. Governor may appoint extraordinary

terms and name justices to hold them.

1. The governor may, when in his opinion the

public interest requires, appoint one or more

extraordinary special or trial terms of the supreme

court. He must designate the time and place of

holding the same, and name the justice who shall

hold or preside at such term, and he must. give

notice of the appointment in such manner as, in his

judgment, the public interest requires. The

governor may terminate the assignment of the

justice named by him to hold a term appointed

pursuant to this section, and may name another

justice in his place to hold the same term.***"

2. A motion involving a matter pending before

such extraordinary special or trial term shall be

made returnable at such term, except that. in the

exercise of discretion, a justice of the appellaic

division of the supreme court in the department in

which such extraordinary special or trial term is

being held may grant permission for such motion

to be heard at a term of such appellate division.”

6

Section 63 of the Executive Law

“Section 63. General Duties. The Attorney

General shall:

ag F **2%""

“2. Whenever required by the governor, attend

in person, or by one of his deputies, any term of the

supreme court or appear before the grand jury

thereof for the purpose of managing and con-

ducting in such court or before such jury criminal

actions or proceedings as shall be specified in such

requirement ***,”’

New York Criminal Procedure Law

Section 140.20. Arrest without a warrant; procedure

after arrest by police officer.

1. Upon arresting a person without a warrant, a

police afficer, after performing without un-

necessary delay all recording, fingerprinting and

other preliminary police duties required in the

particular case, must except as otherwise provided

in this section, without unnecessary delay bring the

arrested person or cause him to be brought before

a local criminal court and file therewith an ap-

propriate accusatory instrument charging him with

the offense or offenses in question.***’’.

Section 180.10. Proceedings upon felony complaint;

arraignment; defendant's rights, court's instructions and

- bail matters.

1. Upon the defendant's arraignment before a

local criminal court upon a felony complaint, the

7

court must immediately inform him, or cause him

to be informed in its presence, of the charge or

charges against him and that the primary purpose

of the proceedings upon such felony complaint is to

determine whether the defendant is to be held for

the action of a grand jury with respect to the

charges contained therein. The court must furnish

the defendant with a copy of the felony complaint.

2. The defendant has a right to a prompt hearing

upon the issue of whether there is sufficient

evidence to warrant the court in holding him for

the action of a grand jury, but he may waive such

right.

3. The defendant has a right to the aid of counsel

at the arraignment and at every subsequent stage

of the action, and, if he appears upon such

arraignment without counsel, has the following

rights:

(a) To an adjournment for the purpose of

obtaining counsel; and

(b) To communicate, free of charge, by

letter or by telephone, for the purpose of

obtaining counsel and informing a relative or

friend that he has been charged with an of-

fense; and

(c) To have counsel assigned by the court in

any case where he is financially unable to

4. The court must inform the defendant of all

rights specified in subdivisions two and three. The

court must accord the defendant opportunity to

exercise such rights and must itself take such

affirmative action as is necessary to effectuate

them.

5. If the defendant desires to proceed without

the aid of counsel, the court must permit him to do

so if it is satisfied that he made such decision with

knowledge of the significance thereof, but if it is

not so satisfied it may not proceed until the

defendant is provided with counsel, either of his

own choosing or by assignment. A defendant who

proceeds at the arraignment without counsel does

not waive his right to counsel, and the court must

inform him that he continues to have such right as

well as all the rights specified in subdivision three

which are necessary to effectuate it, and that he

may exercise such rights at any stage of the action.

6. Upon the arraignment, the court, unless it

intends immediately thereafter to dismiss the

felony complaint and terminate the action, must

issue a securing order which, as provided in

subdivision two of section 530.20, either releases

the defendant on his own recognizance or fixes bail

or commits him to the custody of the sheriff for his

future appearance in such action.

Section 180.60. Proceedings upon felony complaint; the

hearing; conduct thereof.

A hearing upon a felony complaint must be

conducted as follows:

1. The district attorney must conduct such

hearing on behalf of the people.

2. The defendant may as a matter of right be

present at such hearing.

3. The court must read to the defendant the

felony complaint and any supporting depositions

unless the defendant waives such reading.

4. Each witness, whether called by the people or

9

by the defendant, must, unless he would be

authorized to give unsworn evidence at a trial,

testify under oath. Each witness, including any

defendant testifying in his own behalf, may be

cross-examined.

5. The people must call and examine witnesses

and offer evidence in support of the charge.

6. The defendant may, as 4 matter of right,

testify in his own behalf. :

7. Upon request of the defendant, the court

may, as a matter of discretion, permit him to call

and examine other witnesses or to produce other

evidence in his behalf.

8. Upon such a hearing, only non-hearsay

evidence is admissible to demonstrate reasonable

cause to believe that the defendant committed a

felony; except that reports of experts and

technicians in professional and scientific fields of

the kinds specified in subdivision two of section

190.30 are admissible to the same extent as in a

grand jury proceeding.

9. The court may, upon application of the

defendant, exclude the public from the hearing

and direct that no disclosure be made of the

proceedings.

; 10. Such hearing should be completed at one

| session. In the interest of justice, however, it may

be adjourned by the court but, in the absence of a

showing of good cause therefor, no such ad-

journment may be for more than one day.

STATEMENT OF THE CASE

Petitioner’s action for a Declaratory Judgment, pursuant

to 28 USC 2201, alleged substantially as follows:

10

(a) The Respondent Nadjari, acting in concert with the

Federal Strike Force of the United States Attorney for the

Southern District of New York, where this case has

originated under a manufactured federal jurisdiction,

unlawfully and wrongfully ensnared and entrapped the

Petitioner into the commission of the crimes alleged against

him, resulting in his arrest on September 25, 1973.

Petitioner was subsequently indicted by indictment filed

in the Supreme Court of the State of New York, Ex-

traordinary Special and Trial Term, County of Kings, on

December 19, 1973, charging him with the crimes of

Conspiracy in the Third Degree, Attempted Bribery in the

Second Degree, and Grand Larceny in the Second Degree,

in violation of the penal statutes of the State of New York.

(b) Thereafter, Respondent Nadjari did grossly abuse his

oath and authority by wilfully and wrongfully depriving

Petitioner of an arraignment in a criminal court following

his arrest, as required by law, and did wilfully deprive

Petitioner of the coristitutional protections of a Court, the

right to counsel, the right to a preliminary examination,

and the right to confrontation of the witnesses against him,

at a critical stage of the proceedings against him.

(c) Instead, Respondent Nadjari, his agents and

deputies, acting in concert with various agents of the

United States Attorney for the Southern District of New

York, unlawfully held the Petitioner virtually in-

communicado from the date of his arrest, September 25.

1973 as aforestated, until approximately three months

afterwards, for the ulterior and unlawful purpose and

_ design to attempt to coerce and intimidate the Petitioner to

entrap and ensnare various public servants within the

criminal justice system of Kings County, State of New

York, particularly “‘any” Justice of the Supreme Court of

the State of New York, County of Kings, “‘any” Secretary

11

to a Justice, members of the District Attorney's Office of

Kings County, and the United States Attorney’s Office for

the Eastern District of New York, and various other public

servants, into the commission of bribery, perjury and other

related crimes.

(d) In the execution thereof, the said Nadjari, his agents

and deputies, acting in concert with other law enforcement

officers as aforestated, did continuously warn and threaten

the Petitioner not to divulge or reveal to anyone that he had

been. arrested or taken into custody, as aforestated, and

further, did warn and threaten him that if he did not

“cooperate” as aforestated, he would be “immediately”

fingerprinted, booked and arraigned in a criminal court in

connection with his arrest as aforestated, and further

would suffer the loss of his pension as Administrative

Assistant of the Comptroller's Office of the State of New

York.

(e) During the course of the extraordinary prosecutorial

misfeasance aforesaid, the Respondent Nadjari, did at-

tempt to coerce the Petitioner to plant an illegal electronic

eavesdropping device or “bug” in the headquarters of the

Democratic County Committee of Kings County; and did

further attempt to coerce him through a notorious

professional entrapper, one Nicholas DiStephano, to

ensnare and entrap certain named members of the

judiciary within the criminal justice system of Kings

County, and a na.ned Judge of the Surrogates Court, into

the commission of criminal acts; to entrap and ensnare a

named Congressman into the commission of an act of

bribery by the introduction of an Alien Bill into Congress,

to entrap a Specifically designated Assistant District At-

torney of Kings County té buy and pay for a Criminal Court

Judgeship through a named political leader of Kings

County.

\

\

12 \

In the presence and hearing of the Respondent’s Police

agents, the informant Nick DiStephano bluntly threatened

Petitioner: ‘‘They got me. I got you. Now you get them."

(f) Further, in pursuance of the calculated plan \and

scheme to entrap innocent persons within the criminal

justice system of Kings County into the commission of

crimes as aforestated, the Respondent Nadjari, his agents,

deputies and others acting in concert with him, without any

sanction or authority in law whatsoever, contrived and

systematically employed the device of a fictitious ‘arrest!’

and “conviction” of a Federal undercover agent to ac-

complish such purposes, and that in execution thereof, the

Respondent did wilfully suborn perjury of various witnesses

in testifying perjuriously in the criminal courts of the State

of New York, and before the Grand Jury, and did further \

deceive Grand Juries, the District Attorney of Kings \

County, and the Supreme Court of the State of New York, \

County of Kings, with respect to the plea and sentencing

proceedings in regard to the staged arrest and conviction of

the Federal undercover ‘“‘defendants” aforesaid.

(g) The Respondent Nadjari, his agents and deputies, in

concert with other iaw enforcement agents aforestated, did

falsely and fraudulently represent to the United States

Court of Appeals in a criminal proceeding entitled United

States v. Archer, 486 F.2d 670, decided July 12, 1973,

rehearing denied September 26, 1973, and again to the

Appellate Division of the Supreme Court of the State of

New York, Second Judicial Department, that the said

manufactured device of a mock arrest and conviction of a

Federal undercover ‘‘Defendant’’ had been expressly

‘authorized, sanctioned and approved by Chief Judge Fuld

of the Court of Appeals of the State of New York, whereas

in truth and in fact, the said Chief Judge had never sanc-

tioned or approved such practice, but rather, had in fact

13

explicitly declined to disapprove the same; and had in fact

so specifically informed the Respondent, Nadjari, through

his agents and deputies, long prior to the date of the en-

trapment and arrest of this Petitioner as aforestated.

(h) The Respondent Nadjari, his agents and deputies,

acting in concert with law enforcement officers as

aforestated, and in wilful defiance of the Court’s plain

admonition in United States v. Archer, supra, against the

continued practice of ‘‘Government-induced criminality”,

did nevertheless, wilfully and wrongfully continue to

employ such practices against, up to and including the date

of the indictment, December 18, 1973.

(i) The Respondent Nadjari, did wrongfully and wilfully

contrive to deprive Petitioner of his right to a fair and

impartial trial, particularly as to his right to assert the

affirmative defense of entrapment, by prejudicially

asserting and disseminating in a widely-reported news

conference pre-arranged by him together with the United

States Attorney for the Southern District of New York, on

December 19, 1973, publicly proclaiming that Petitioner

had a criminal predisposition, whereas in truth and in fact,

he had no criminal pre-disposition of any kind, and had

never been involved in any act relating to bribery, larceny

or any criminal act whatsoever.

(j) Again, the Respondent Nadjari, his agents and

deputies, did, on successive dates thereafter, April Ist and

April 2nd, 1974, seriously prejudice Petitioner's rights to a

fair and impartial trial by further false and prejudicial

publicity through the media regarding his alleged criminal

pre-disposition, all directly violative of the Canons of

Professional Responsibility promulgated by the American

Bar Association in August 1969 dealing with “‘trial

publicity”, and in particular, directly violative of the order

of the Appellate Division of the Second Judicial Depart-

14

ment dated January 25, 1974, specifically directing the

sealing of all records pertaining to the criminal case

pending against him; all grossly violative of the Petitioner's

rights to due process of law under the Fifth and Fourteenth

Amendments of the Constitution.

By reason of the facts aforestated, the Respondent |

Nadjari, individually and as Deputy Attorney General of e

the State of New York, has so grossly abused his authority

and jurisdiction under the color of the Governor’s Executive |

Order No. 58 aforestated, that he, his agents and deputies,

and all others acting in concert with him, have thrust

themselves into direct violation of the penal statutes, both

state and federal, as follows: Criminal Solicitation (Penal

Law, Section 100.00); Coercion in the First Degree (Penal

Law, Section 135.60); Conspiracy to Commit Bribery in the

Third Degree (Penal Law, Section 105.05); Attempted

Eavesdropping, (Penal Law, Section 250.05); Official

Misconduct (Penal Law, Section 195.00); Conspiracy to

Commit Perjury in the First Degree (Penal Law, Section

210.15); Conspiracy to Commit Perjury in the Second

Degree (Penal Law, Section 210.10); Criminal Im-

personation (Penal Law, Section 190.25); Deprivation of

rights under color of law (Title 18 United States Code

Section 242); Conspiracy against rights of citizens (Title 18

United States Code Section 241); among others.

The prosecutorial ‘misconduct of the Respondent

_Nadjari, his agents and deputies and the law en-

forcement agents acting in concert with him, as

aforestated, under color of the penal statutes of the State of

New York and Executive Order No. 58, is so shocking to

- the conscience, and offensive to the canons of decency, and

so violative of principles of fundamental fairness and a

universal sense of justice, that the Court should bar the

Respondent Nadijari from invoking judicial processes to

So eR TINT SREY ESSIEN INTELL TON EEA STEER SMM NaN EER REE Soe eT HG

15

prosecute the indictment obtained against this Petitioner,

and to dismiss the indictment in the interests of justice, in

order to protect the integrity of the administration of

criminal justice, to preserve the purity of the Courts, and 'to

protect the citizen, and particularly this Petitioner, from

the lawless and unconscionable conduct of law enforcement

officers.

The Petitioner has no adequate remedy at law in the

state courts to redress the deprivation of his constitutional

tights, or to prevent the irreparable injury to him, except

by way of an injunction, pursuant to Title 28 United States

Code, Sections 2281 and 2284, to stay the prosecution, and

for a declaratory judgment to declare the indictment

against him null and void under the Fifth and Fourteenth

Amendments of the Constitution.

In a supporting affidavit for a three-judge Court,

Petitioner further alleged substantially as follows:

The trial of the indictment and all pre-trial proceedings

relating thereto are now pending before the Hon. John M.

Murtagh, Justice of the Supreme Court, appointed by the

Governor of the State of New York, under color of Section

149, of the Judiciary Law, and of Article 6, Section '27 of

the New York State Constitution, which provided as

follows: |

“Sec, 27. Extraordinary terms of the Supreme

Court. Be a :

| The Governor may, when in his opinion the

public interest requires, ‘appoint extraordinary

terms of the Supreme Court. He shall designate the

time and place of holding the term and the justice

who shall hold the term. The Governor may ter-

minate the assignment of the justice and may name

another justice in his place to hold the term.”

16

"Section 149. Governor may appoint ex-

Supceeoaned terms and name justices to hold them.

1, 9e°

2. A motion involving a matter ninthié before

such extraordinary special or trial term shall be

made returnable at such term, except that, in the

exercise of discretion, a justice of the appellate

division of the supreme court in the department in

which such extraordinary special or trial term is

being held may grant permission for such motion

to be heard at a term of such appellate division.”

In pursuance therewith, the Honorable J. Irwin Shapiro,

Associate Justice of the Appellate Division of the Supreme

Court, Second Judicial Department, granted an order on

January 2S. 1974, authorizing Petitioner to bring the

following preliminary motions, among others, directly

before a term of the Appellate Division.

1) For an order dismissing the indictment in the fur-

therance of and in the interest of justice, under the Due

Process Clause of the Fifth and Fourteenth Amendments of

the Constitution of the United States and Art. 1, Sec. 6 of

_ the New York State Constitution.

2) For an order pursuant to Section 210.20 subdivision

I(h) of the Criminal Procedure Law dismissing the in-

_ dictment on the specific ground that Nadjari had grossly

abused and violated the jurisdictional scope of his statutory

power and authority vested in him through Article VI.

» Section 27 of the Constitution of the State of New York,

Section 63 of the Executive Law and Governor's Executive

Order no, 58 dated September 19, 1972, and the due

process clause of the Constitution. —

3) For an order superseding and disqualifying Nadjari

and any member of his staff, from managing and con-

0S ERAT AOL TET LETT L OE LEO EDC AEA EE

General of the State of New York to supersede the said

NADJARI as Special Prosecutor therein.

4) For an order disqualifying Hon. John M. Murtagh,

presiding justice of the Extraordinary Special and Trial

‘Term from presiding at the trial of the action herein, if any.

and staying the trial of this action until the appointment of

another Justice in his place, or the designation of an ad-

ditional Extraordinary and Special Trial Term by the

Governor pursuant to specific authorization contained in

Article V1. Section 27 of the New York State Constitution

and Section 149 of the Judiciary Law and the due process

clause of the Constitution.

On May 20, 1974, the Appellate Division rendered its

decision, denying Petitioner's various motions to dismiss

the indictment on due process grounds for prosecutorial

misconduct, to supersede and disqualify the Respondent

Nadjari, and to disqualify Judge Murtagh from presiding

at the trial of the Petitioner.

In adopting the concurring opinion of Mr. Justice

Shapiro in a companion case, Matter of Klein v. Murtagh.

44 App. Div. 2d 465, decided therewith, the Appellate

Division stated:

“eee in dismissing the petitions we have not

reached or passed upon the petitioners’ contention

that the lawless conduct of the investigators in this

case is so offensive to the administration of justice

and to prevailing standards of decent behavior that

this prosecution should be barred.

While | am in general agreement with the

disapproval voiced by Judge Friendly in United

States v. Archer (486 F 2d 670) of the prosecutorial

18

conduct of the Government (both State and

Federal), the question of whether such conduct

constituted government induced criminality

(Sherman v. United States, 356 U.S. 369), or was

otherwise of such a nature as to violate principles

of fundamental fairness sufficient to preclude the

prosecution of the petitioners (Rochin vv.

California, 342 U.S. 165), or whether the in-

dictment should be dismissed in the interest of

justice (CPL 210.40), should be decided at the trial

level on a full record containing all the essential

facts showing the manner in which the events

leading to the prosecution of the petitioners were

planned and carried out. The determination of

these questions cannot properly be made on an

application for an order in the nature of

prohibition.”

Petitioner contended in the District Court below that he

had suffered great and immediate irreparable injury by

reason of the shocking prosecutorial misconduct aforesaid,

and that he had no meaningful access to the state courts,

for the following reasons:

¢ Section 149, subd. 1 Judiciary Law, under and

by which the Extraordinary Term of the Supreme Court

was organized and convened, was facially unconstitutional

in that it was inherently violative of the independence of the

judiciary, and the Separation of Powers guaranteed against

encroachment by the Due Process Clause of the Fifth and

Fourteenth Amendments of the Constitution.

° It was inherently violative of Petitioner's

fundamental right to due process and the equal protection

of the laws, Uudiciary Law, Sec. 149, subd. 2), in that it ©

substantially diminished the procedural due process rights

19

of all criminal defendants before the Extraordinary Term

of the Supreme Court, as compared to all other defendants

before the regularly constituted criminal terms of the

Supreme Court. (cf. People ex rel. S.L. & T. Co. v. Ex-

traordinary Term of Supreme Court, 220 NY 487 (1917),

opinion Cardozo, J.; Matter of Reynolds v. Cropsey. 241

NY 389.

» By hand-picking his own Special Prosecutor to

manage and conduct all proceedings in the court so

controlled by the Executive as aforesaid, the Governor has

not only magnified manifold the poteatial dangers of

Section 149 Judiciary Law to the independence of the

judiciary and to the due process rights of an accused, but

has likewise rendered Section 63 Executive Law and

Executive Order No. 58 issued thereunder, un-

constitutional and void, as applied, under the Due Process

Clause of the Constitution.

In this connection, Petitioner formally notified the

District Court that there was now pending in the State

courts an independent action instituted by Petitioner for a

Declaratory Judgment to declare the said statute and

constitutional provision unconstitutional and void, upon

their face, and as applied, under the Due Process Clause of

both the federal constitution, and the Constitution of the

State of New York, Act 1, Sec. 6. That action is now

pending in the Appellate Division of the Supreme Court,

Second Judicial Dept., State of New ‘York (Steinman v.

Nadjari).

. The Respondent’s wilful deprivation of

Petitioner’s right to counsel and to a preliminary

examination, during a critical stage of the criminal

proceedings against him, caused him great and immediate

irreparable injury in his fundamental rights to a fair trial.

(Coleman v. Alabama, 399 U.S. 1).

20

REASONS RELIED ON FOR ALLOWANCE OF WRIT

POINT I

THE EXTRACRDINARY PROSECUTORIAL

-MISCONDUCT CONCLUSIVELY ADDUCED

AT BAR WARRANTED EQUITABLE IN-

TERVENTION FOR FEDERAL

DECLARATORY AND INJUNCTIVE RELIEF,

UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS OF THE CONSTITUTION.

The tests of “special circumstances” and “irreparable

injury” laid down in the guiding precedent of Younger v.

Harris, 401 US 37, 45, have been amply met in the con-

clusively documented allegations of extremely shocking

prosecutorial misconduct set forth in Petitioner’s action for

a Declaratory Judgment in the District Court below.

Rarely in all prosecutorial experience in this country has

“the ignoble shortcut to conviction” (Mapp v. Ohio, 367

US 643, 660) descended to the levels enumerated here,

enveloping the very integrity of the judicial process and the

administration of criminal justice.

Seldom in all the annals of criminal jurisprudence has a

prosecutor so flagrantly abused the lawful limits of power

and authority as in the case at bar.

In a multiple layer of entrapment_and state manufac-

tured criminality systematically practiced by the respondent

. Nadjari, (a) he entrapped the petitioner, with no intention

to prosecute him, provided he would “co-operate”; (b) he

attempted to coerce and terrorize the entrapped Petitioner

by threat and terror, to entrap others; (c) he wilfully

21

deprived Petitioner of his constitutional right to any

arraignment whatsoever. during a critical stage of the

criminal proceedings against him (Coleman v. Alabama,

399 U.S. 1);; (d) he deliberately committed wholesale

or sanction of law whatever; (e) he falsely represented to the

courts that he had received the express authorization,

sanction and approval of the Chief Judge Stanley H. Fuld

for the deployment of staged arrests and fake convictions,

when in truth and in fact, he had no such permission, and

indeed, Judge Fuld had explicitly rejected Nadjari’s

specific request for approval or sanction of such tactics in

April, 1973; and (f) he systematically disseminated grossly

false and seriously prejudicial publicity against the

Petitioner regarding his alleged, but non-existent

predisposition to crime, in flagrant violation of the Code of

Professional Responsibility promulgated by the American

Bar Association. .

The totality of these conclusively documented practices,

amply meets the test of “extraordinary circumstances”

(Younger v. Harris, supra); “unusual situations”, (Samuel

v. Mackell, 401 U.S. 66, 67); and “bad faith enforcement

or other special circumstances” (Steffel v. Thompson. 415

U.S. 452, 460), causing irreparable injury both great and

immediate, and warranting federal intervention by

declaratory and injunctive relief.

In Russell v. United States, 41195/23, Mr. Justice

Rehnquist expressed the following caveat, 411 U.S. at p.

431, namely, that the Court might:

“some day be presented with a situation in which

22

the conduct of law enforcement agents is so

outrageous that due process principles would

absolutely bar the government from invoking

judicial processes to obtain a conviction, cf.

Rochin v. California, 342 US 165, 72 S. Ct. 205, 96 L. ed.

183 (1952)...”

We earnestly submit to the Court that the case at bar

presents precisely such a situation.

It is significant that the Respondent's actions in the

name of the law have already begun to merit the sharp

rebuke of the federal and state courts.

In United States v. Archer, 486 F. 2d 670 (CA 2), in a

setting of manufactured criminality identical as at bar —

indeed, involving the very same prosecutor, the same police

agents, and the same informant — the Court stated:

““We do not at all share the Government’s pride

in its achievement of causing the bribery of a state

assistant district attorney by a scheme which in-

volved lying to New York police officers and

perjury before New York judges and grand jurors;

to our minds the participants’ attempt to set up a

federal crime for which these defendants stand

convicted went beyond any prosecutorial role and

needlessly injected the Federal government into a

matter of state concern.”

As to the entrapment issue, the Court pointedly added:

** . . . Our intuition inclines us to the belief that

this case would call for application to Mr. Jus-

tice Brandeis’ observation in Olmstead, even

though that view has not been incorporated in the

entrapment defense, there is certainly a limit to

allowing governmental involvement in crime.***

Since we conclude reversal to be required on

23

another ground, we leave the resolution of this

difficult question for another day. We hope,

however, that the lesson of this case may obviate

the necessity for such a decision on our part.”

In the Matter of Salvatore Nigrone, the Appeilate

Division of the Second Department, 46 AD 2d 343 (1974),

once again condemned this practice, as did the Archer

Court, and declared as follows:

“The deception of grand jurors, Judges and

Assistant District ‘Attorneys and the filing of false

official documents are absolutely intolerable. ~—_

When. as here, the criminal justice system is made

an unwitting accomplice of an overzealous

prosecutor, before the fact, its impartiality is

destroyed and contempt for the law encouraged.

ReEKK

Though the purpose of the Special Prosecutor

may be laudatory, he is not above the law and may

no more resort to corruption and manipulation of

the criminal justice system than the individual he

seeks to prosecute.”

Mr. Justice J. Irwin Shapiro, in an opinion holding that

the indictment should be dismissed under the Due Process

| Clause, further held:

“The myopic view of the Special Prosecutor with

regard to his conduct destroys the contention of the

majority that we have here a sui generis case and

that its condemnation ‘will suffice to prevent its

repetition’. In this connection it should be

remembered that almost exactly the same kind of

conduct was severely condemned in United States

v. Archer (486 F.2d 670), a case in which the

24

Special Prosecutor here participated as amicus

curiae. *****

A dismissal of the indictments here would not

hamper proper investigative procedures, but would

serve notice that Javert type techniques which

utterly disregard basic constitutional rights, violate

statutory law and constitute an intrusion on those

rights which we as a free people hold most dear

may not be perpetrated with impunity. We must

set our face unalterably against lawless law en-

forcement as a proper device to be used by

prosecutors even if their motives be of the best—for

sanctioning them can only have a chilling effect on

proper law enforcement and result in the eventual

erosion of many of our basic constitutional rights.”

“The requirement of due process *** extends to the pre-

trial conduct of law enforcement authorities."’ (United

States v. Toscanino, SOO F 2d 267, 274 (CA 2, 1974).

The U.S. Court of Appeals for the D.C. Circuit, en banc,

on Dec. 12, 1974, in United States v. McCord, 509 F2d 334

said:

“*** we have no doubt that McCord’s most

general assertion of principle is grounded in

respectably authority: i.e. serious prosecutorial

misconduct may so pollute a criminal prosecution.

as to require dismissal of the indictment or a new

trial without regard to prejudice to the accused.”

In dismissing. Petitioner’s action for a Declaratory

Judgment and for a 3-Judge Court, the District Court

erroneously held that:

“When what in substance being challenged is

neither a statute, nor the policy underlying the

statute, rather the activities of a state officer

appointed under the authority of the statute, resort

to a three-judge court is inappropriate (cases

cited)."” (A-4).

_ The indisputable fact is, however, that the prosecutorial

misconduct of the Respondent Nadjari depicted at bar

reflected a systematic policy affecting not only this

Petitioner, but a host of others similarly situated.

_The sinister tactic of incommunicado arrest for the

purpose of ensnaring and entrapping others has been a

standard policy of Respondent Nadjari in several reported

cases, several of which have already surfaced in the public

notoriety. Among those involved at least one member of the

Bar of Kings County, a former Law Secretary to a Justice of

the Supreme Court in the County of Kings, who were

likewise arrested without ever having been arraigned in a

court of law, and surreptitiously “wired” to entrap judges

and-others within the criminal justice system, and, among

others, an elected judge of the Civil Court, New York

County, who though actually arrested, was likewise never

formally arraigned in a court of law, but immediately

pressed into service as a wired informant for the

Respondent.

26.

POINT II

PETITIONER HAS BEEN IRREPARABLY

INJURED IN THAT HE HAS BEEN UTTERLY

DEPRIVED OF AN ADEQUATE REMEDY AT

LAW AND OF ALL MEANINGFUL ACCESS TO

THE STATE COURTS.

The prerequisite showing of great and immediate

irreparable injury to Petitioner, “resulting in a deprivation

of meaningful access tu the state courts” (Allee v.

Medrano, 416 US 802, 94 S.Ct. 2191, 2210 (1974), was

here conclusively established, in four-fold respect as

follows:

A.

The Total Denial of Counsel, Arraignment

or Right to Preliminary Examination

Petitioner was intentionally deprived of the right to

counsel during a critical stage of the proceedings against

him, and the right to a preliminary hearing. In utterly

depriving him of these elementary rudiments of due

process, petitioner’s indispensable fundamental rights to a

fair trial have been irretrievably lost. The full measure of

that loss is delineated in Coleman v. Alabama, 399 US 1,

wherein the Court stated:

“Plainly the guiding hand of counsel at the

preliminary hearing is essential to protect the

indigent accused against an erroneous or improper

prosecution. First, the lawyer’s skilled examination

and cross-examination of witnesses may expose '

fatal weaknesses in the State's case, that may lead

21

the magistrate to refuse to bind the accused over.

- Second, in any event, the skilled interrogation of

witnesses by an experienced lawyer can fashion a

vital impeachment tool for use in cross-

examination of the State’s witnesses at the trial, or

preserve testimony favorable to the accused of a

witness who does not appear at the trial.

Third, trained counsel can more effectively

the indigent. accused on his own to realize these

advantages of a lawyer's assistance compels the

conclusion that the Alabama preliminary hearing

is a ‘critical stage’ of the State's criminal process at

that a police officer

“upon arresting a person without a warrant must

*#* without unnecessary delay bring the arrested

person or cause him to be brought before a local

criminal court and file therewith an appropriate

accusatory instrument charging him with the

offense or offenses in question.”

New York Criminal Procedure Law. Sec. 180.70 subd. 4.

provides:

“If there is not reasonable cause to believe that

the defendant committed any offense, the court

28

must dismiss the felony complaint and discharge

the defendant from custody if he is in custody, or,

if he is at liberty on bail, it must exonerate the

bail.”

Under Section 180.60 of the New York Criminal

Procedure Law, each witness at the preliminary hearing,

whether called by the people or by the defendant, may be

cross-examined; a defendant may, as a matter of right,

testify in his own behalf; and, upon his request, the court

may permit him to call and examine other witnesses or to

produce other evidence in his behalf.

By wilfully depriving Petitioner of a preliminary hearing

altogether, the Respondent foreclosed him from

establishing that there was no “reasonable cause to believe

that he committed a felony”. Manifestly, had such hearing

been had, Petitioner would have had the opportunity to

prove, and would have proved, through electronic tapes in

Respondent's possession or control, of all conversations

with the informant, that Petitioner had been indeed en-

trapped, as a matter of law, and that probable cause for his

arrest was lacking. (Gerstein v. Pugh, US—

(1975); New York Penal Law Sec. 40.05; Pitler, New York

Criminal Procedure Law, pp. 204-209; Coleman v. Bur-

nett, 477 F 2d 1187 (CAS, 1973); United States v. King.

482 F 2d 768 (CA, DC, 1973).

It will be noted that nowhere in the opinion of the

District Court below did it even consider or evaluate the

great or immediate irreparable injury to Petitioner posed

by the failure to accord him the right of counsel, or of a due

arraignment in a court of law, during a critical stage of the

proceedings against him under the Coleman standard of

due process.:

Indeed, flatly contrary to the teachings of Coleman, the

29

_ Respondent misleadingly contended in the Court below, as

follows: se

“The right to a prompt preliminary hearing or

arraignment is a state, not a federal, right. (Resp.

Brief in Support of Motion to Dismiss).

Nor did the District Court even consider the facial

-‘unconstitutionality of the statutes bearing directly on the

crucial issue whether Petitioner had meaningful access to

the State Courts, or 4 fair opportunity to vindicate his

federal constitutional rights (Younger v. Harris, 401 US

37; Kugler v. Helfant, —US—, April 28, 1975, 17 Cr L

30007).

B

The Facial Unconstitutionality of the Statute

Directly Affecting the Independence. of the

Judiciary.

Above all, the state prosecution at bar is fatally infected

with a statute unconstitutional on its face. going to the very

jurisdiction and competence of the Court, in two-fold

respects, as follows:

(A). It is inherently violative of the independence of the

judiciary; Judiciary Law. Sec. 149, subd. 1)

(B). It is inherently violative of an accused's right to due

process and the equal protection of the laws Uudiciary

Law, Sec. 149, subd. 2] in that it substantially diminishes

the rights of all litigants before the Extraordinary Term of —

the Supreme Court, as compared to all other defendants in

the regular Criminal Terms of the Supreme Court. (cf.

People ex rel. S.L. & T. Co. v. Extraordinary Term of

Supreme Court, 220 NY 487 (1917), opinion Cardozo, 5.;

Matter of Reynolds v. Cropsey, 241 NY 389 (Appendix, pp-

94-96) : .

; 30

In the absolute power vested in the Governor to appoint

and to remove at will. any judge designated by him to hold

the extrzordinary special and trial term of the supreme

court, both Article 6, Section 27 of the New York State

Constitution and Seton 149 of the Judiciary Law are

unconstitutional and vuid, on their very face, as inherently

violative of the independence of the judiciary, and the

Separation of Powers guaranteed against encroachment by

the Due Process Clause of the Fifth and Fourteenth

Amendments of the Constitution of the United States and

Article 1, Section 6 of the New York State Constitution.

The settled law is that a provision in a state constitution

is subject to the same statutory rules of construction,

consistent with the due process clause of the federal

constitution, as any state statute. ;

In Matter of Wendell v. Lavin, 246 NY 115, 123, the

Court of Appeals declared:

“The same rules apply to the construction of a

Constitution as to that of statute law. (People ex rel

Jackson v. Potter, 47 N.Y. 375, pp. 379-380".

Accord: Newell v. People, 7 NY 9.

The fatal flaw of the statute and constitutional provision

in issue is that in its in-built potential of control by the

Governor over any judge appointed by him it is inherently

violative of the independénce of the Judiciary.

. The cardinal principle iaid down by this Court, of long

vintage, is that the constitutionality of a measure depends

not on the degree of its exercise but on its principle.

(Providence Bank v. Billings, 29 U.S. 514, 7 L Ed. 939).

In Stuart v. Palmer, 74 N.Y. 183, 189, the New York

Court of Appeals long ago followed the same seminal test of

constitutionality:

“The constitutional validity of law is to be tested,

not by what has been done under it, but by what

Whe TOT REMIT

31

may, by its authority, be done.”

‘Again, in Rosalsky v. State, 254 NY 117 (1930), the

Court stated:

“We measure the validity of statutes, not by what

has actually been done under cover of their

provisions, but by what with reason may be done.

Stuart v. Palmer, 74 N.Y. 183, 30 Am. Rep. 289;

Matter of Richardson, 247 NY 401, 421, 160 NE

655.”"

In People v. Klinch Packing Co. 214N.Y. 121, 138-139

(1915), the Court reiterated the applicable rule:

“we are to judge of a statute by what is

possible under it, in the absence of any guide it

might very well happen that an administrative

officer with the best of purposes would nevertheless

be very falliable in the execution of them.”

Directly pertinent is this Court’s decision in Dreyer v.

Illinois, 187 U.S. 71, where Mr. Justice Harlan stated at

page 84:

““When we speak,’ said Story, ‘of a separation of

the three great departments of government, and

maintain that that separation is indispensible to

public liberty, we are to understand this maxim in

a limited sense. It is not meant to affirm that they

must be kept wholly and entirely separate and

distince, and have no common link of connection

or dependence, the one upon the other, in the

slightest degree. The true meaning is, that the

whole power of one of these departments should

not be exercised by the same hands which possess

the whole power of either of the other departments;

and that such exercise of the whole would subvert

the principles of a free constitution. Story’s Const.

(Sth ed.) 393 ,,.” (Emphasis supplied.)

32

The doctrine of Separation of Powers in our con-

stitutional system of government by checks and balances is

a “bulwark against tyranny" (United States v. Brown, 381

US. 437 (1965).

Accord: (O ‘Donohue v, U.S. 289 US 516; Kilborne

v. Thompson, 103 U.S. 168, 190; Springfield v.

Philippine Islands, 177 U.S. 189, 201; Federalist

Papers No. 47, 48, 51.)

The gravely pernicious potentials of the statute in issue

are readily apparent.

The independence of the judiciary is automatically

subjugated to the control, whim and caprice of the

Executive. The power to hire and fire a judge puts the

Executive implacably “in control of judicial action”

(People ex rel $.L. & T. Co. v Extraordinary Term 220 NY

487.)

A judge so compromised would be inevitably impelled to

tilt the balanced scales of justice against any accused—if

only to curry the favor on the one hand, or avert the

retribution of the Governor, on the other. In a court of

justice so heavily stacked against the accused, with the

Governor holding the strings of both the judge and

prosecutor, the elemental rights to a fair trial are hopelessly

compromised. No judge so situated could reasonably

maintain the balance true, despite the best of intentions

and the highest nobility of motive.

To expect any judge or Court, so situated, to maintain an

even balance of judicial objectivity under these unique and

extraordinary circumstances, would be to strain for the

fulfillment of the impossible from any human being.

Even far beyond its mere potential, the unprecedented

imperial power vested in the Governor by Section 149 of the

Judiciary Law has inevitably tended to invite, encourage

and generate the very tyrannical abuses practiced by the

33

respondent at bar, not only against this Petitioner, but

against all others similarly situated, as reflected in a

proliferating number of reported cases.

It is no mere coincidence that of all those indicted by the

Respondent Nadjari under color of these statutes and the

Governnor’s Executive Order issued thereunder, an ab- °

normal number of those charged have interposed defenses

charging wilful entrapment, failure to arraign defendants

in a criminal court, gross prosecutorial misconduct

violative of due process, gross abuse of jurisdication,

outrageous and unfair trial tactics, and “perversion of the

criminal justice system of an overzealous prosecutor” (See

Matter of Nigrone, 46 AD 2d 343) (2d Dept., 1975); Peaple

v Bell, 45 App. Div. 2d 362 (ist Dept. 1974); People v.

Harding, 44 App. Div. 2d 800 (1st Dept. 1974); People v.

Rao, 46 App.Div.2d 343 (2d Dept. 1975); United States v.

Archer, 486 F.2d 670 (CA 2); Matter of Klein v. Murtagh,

44 App. Div.2d 465 (2d Dept., aff. 34 NY 2d 988); People v.

Steinman, 44 App.Div.2d 839 (2d Dept., 1974); People v.

Levy,—App Div. 2d-——(2d Dept., 1975); Matter of Moritt

v. Nadjari, 46 App.Div. 2d 784 (2d Dept.).

With the utmost deference and respect for the Judge

presiding over the Extraordinary Term, the recent decision

by the Appellate Division of The Supreme Court, First

Department, in People v. Bell, supra (July 9, 1974),

unanimously reversing a judgment of conviction obtained

by the respondent Nadjari in the Extraordinary Term of

the Supreme Court, is highly illustrative of the inadvertent

psychological pressures operative against a fair trial for any

accuse’. in the Court constituted under the un-

constitutional statutes here in issue. . |

There, reversing a conviction of a police officer for

Attempted Poss.'ssion.of a Dangerous Drug in the First

Degree, Burglary in the First Degree and Attempted Grand

a

34

Larceny in the Second Degree, with concomitant sentence

of six to eighteen years in prison, the Appellate Division

held:

“On this record, it is clear that the totality of the

trial court's errors was prejudicial and, in effect,

denied defendant-appellant Richard Bell a fair

trial. ...

‘Read as a whole, the charge was prejudicial in

that it appeared to emphasize the strength of the

prosecution’s case, in derogation of the

requirement to give balanced instructions to the

jury in a criminal trial. .. .”

Of the same tenor, see People v. Levy, ———AD2d——

—|2d Dept. Feb. 24, 1975| People v. Johnson, AD

2d———(Ist Dept. 1974), 361 NYS 2d 921, 926; People v.

Harding, 44Ad 2d 800 (ist Dept.); People v. Mackell

—Ad 24d-————(2nd Dept. 1975); Matter of Nigrone 46 AD

2d 3A3 (2d Dept. 1974).

In the light of the unconstitutional statutes aforesaid, the

District Court plainly erred in holding that “Plaintiff has a

forum where he can assert these due process violations.”

To relegate Petitioner to a trial before the Judge

presiding in the Extraordinary Term, be it Judge Murtagh

or any other designee of the Governor, would be patently

prejudicial to his procedural rights of due process, and to

his constitutional right to a fair and impartial trial.

Indeed, a resolution of the critical issues propounded by

the Petitioner, engendered by the extraordinary

_ prosecutorial misconduct shown at bar, would necessarily

require the Court to pass value judgments upon such

subjective pre-trial issues as the pending motions therein .

(A) to disqualify the Respondent as the prosecutor in this

case, upon the ground that neither this Petitioner nor any

other defendant could get a fair trial at his hands under the

shocking misconduct already evidenced at bar; (B) to

dismiss the indictment under the Due Process Clause of the

Constitution as a judicial sanction to protect the integrity of

the judicial process and the tule of law; (C) to dismiss the

indictment for Respondent's gross abuse of jurisdiction in

the systematic manufacturing of crime in order to

prosecute it; (D) to disqualify Judge Murtagh; and (E) to

rule on the very constitutionality of the statutes upon which

the court itself is legally structured.

In net effect, by relegating Petitioner to seek redress of

his federal constitutional rights before the Judge presiding

over the facially unconstitutional Extraordinary Term, and

more particularly, for a special ruling on the con-

stitutionality of the statutes under the Separation of Powers

doctrine, would implicate the presiding Judge in an un-

tenable situation in which he, in effect, would be called

upon to invalidate the very Court over which he presided.

Indeed, if Petitioner’s contention as to the facial un-

constitutionality of the statute is valid, then the Ex-

traordinary Term of the Supreme Court is utterly without

power or competence even to resolve that issue, or any

other, as an illegally constituted court.

In re Murchison, 349 U.S. 133 (1965), the Court stated:

“A fair trial in a fair tribunal is a basic

requirement of due process. Fairness of course

requires an absence of actual bias in the trial of

cases. But our system of law has always endeavored

to prevent even the probability of unfairness. To

this end no man can be a judge in his own case and

no man is permitted to try cases where he has an

interest in the outcome. That interest cannot be

defined with precision. Circumstances and

relationships must be considered. This Court has

said, however, that every procedure which would

36

offer a possible temptation to the average man as a

judge . . . not to hold the balance nice, clear and

true between the State and the accused, denies the

latter due process of law.’ Tumey v. Ohio, 273 U.S.

$10, 532, 71 L. ed. 749, 758, 47 S. Ct. 437, SO ALR

1243. Such a stringent rule may sometimes bar

trial by judges who have no actual bias and who

would do their very best to weigh the scales of

justice equally between contending parties. But to

perform its high function in the best way ‘justice

must satisfy the appearance of justice.’ Offutt v.

United States, 348 U.S. 11, 99 L. ed. 11, 75S. Ct.

11.” (emphasis ours.)

In United States v. Walker. 473 F 2d 136 (CA, DC.

1972), the Court noted:

“The disciplined judicial mind should not be

subjected to any unnecessary strain; even the most

austere intellect has a subconscious.”

Cc

The State Statute Seriously Diminished the Rights

Of All Litigants, And Is Facially Violative of the

Equal Protection Clause of the Fourteenth

Amendment.

Gravely compounding the dangerous potentials of this

King George-III type statute wholly destructive of the

independence of the judiciary, the legislature con-

comitantly whittled away the fundamental rights of an

accused to procedural due process of law.

Every litigant before the Extraordinary Term, is

automatically forfeit to severely diminished rights in the

determination of critical pre-trial motions and

proceedings, in utter denial of their due process rights to

the equal protection of the laws. (See People ex rel. S.L. &

37

T. Co.. v. Extraordinary Term, 220 N.Y. 437, opinion by

Judge Cardozo; Dreyer v. Illinois, 187 U.S. 71, 84.). Thus:

Originally, a defendant had the absolute right to present

any pre-trial motion to the Special Term of the Supreme

Court. rather than to the Extraordinary Term, as all other

defendants in the regularly constituted criminal terms.

As originally construed by New York’s highest court, the

Extraordinary Term when created “became a term of the

Supreme Court with the same jurisdiction that belongs to

any other term.” (Matter of Reynolds v. Cropsey, supra).

“It does not enlarge or diminish the rights of litigants,,,,No

such interpretation is thinkable.” (People ex rel. SL & T

Co.. 220 NY 487 (1917), per Judge Cardozo.

However, subsequent thereto, the legisiature added a

new subdivision (L. 1960, ch. 164) massively diminishing

the rights of litigants, reading as follows:

“2. A motion involving a matter pending before

such extraordinary special or trial term shall be

made returnable at such term, except that, in the

exercise of discretion, a justice of the appellate

division of the supreme court in the department in

which such extraordinary special or trial term is

being held may grant permission for such motion

tobe heard at a term of such appellate division.”

Thus. under the facially unconstitutional statute

aforesaid, petitioner and all others similarly situated are

rigidly restricted to the Extraordinary Term alone for

vindication of their rights of due process to a fair and

impartial trial, save only for the limited right to apply to

the Appellate Division with respect to preliminary matters,

subject however, to the over-all discretionary right of .a

justice of the Appellate Division to grant or withhold such

38

permission (Section 149, subd. 2, Judiciary Law).*

“The right of a citizen to due process of law must rest

upon a basis more substantial than favor or discretion.”

(Roller v. Holly, 176 U.S. 398, 409, 44 L. ed. 520, 524, 20

Sup. Ct. Rep. 410) Accord: Coe v. Armour, 237 U.S. 413,

424-5: Wuchter, 276 U.S. 13, 24.

A defendant before any regular term of the Supreme

Court, however, would have the absolute right te move at

general Criminal Term for disqualification of a judge, for a

change of venue, or for dismissal of the indictment on due

process grounds where, such as here, it is “required as a

matter of judicial discretion by the existence of some

compelling factor, consideration or circumstance clearly

demonstrating that conviction or prosecution of the

defendant upon such indictment or court would constitute

or result in injustice." (New York Criminal Procedure Law,

Sec. 210.40). Here, Petitioner had no such rights.

Again, in stark contrast to the severe limitations and

restrictions imposed on all litigants with respect to pre-trial

proceedings in the unconstitutional Extraordinary Term.

the recently amended CPL 255.20 (L. 1974, Ch. 763, eff.

Sept. !, 1974), dealing with pre-trial omnibus motions

generally, provides as follows:

“All pre-trial motions, with supporting affidavits

affirmations, exhibits and memoranda of law,

whenever practicable, shall be included within the

same set of motion papers, and shall be made

returnable on the same date, unless the defendant

shows that it would be prejudicial to the defense

were a single judge to consider all the pre-trial

motions. .,.."" (Empahasis ours)

* Indeed, as aforementioned, petitioner's motions for pre-trial relief had

been duly addressed to the Appellate Division, but were relegated back to

the Extraordinary Term of the Supreme Court for disposition.

z

E 39

x

Here, however, there is but a single solitary judge alone

to whom petitioner may repair for redress of his con-

stitutional rights, thus effectively depriving him of the

equal protection of the laws.

D.

Section 63 of the Executive Law, and the

Governor's Executive Order No. 58, As Applied, Is

Violative of the Due Process Clause.

Section 63 of the Executive Law, implementive of and

complementary to Section 149 of the Judiciary Law

aforestated, provides in pertinent part as follows:

“Section 63. General Duties. The Attorney

General shall:

me errs

“2. Whenever required by the governor, attend

in person, or by one of his deputies, any term of the

supreme court or appear before the grand jury

thereof for the purpose of managing and con-

ducting in such court or before such jury criminal

actions or proceedings as shall be specified in such

requirement . , ..”” (Emphasis ours.)

By designating his own Special Prosecutor to manage

and conduct all proceedings in the court so controlled by

the Executive as aforesaid, the Governor has not only

magnified manifold the potential dangers of Section 149 of

the Judiciary Law to the independence of the judiciary and

to the due process rights of an accused, but has likewise

rendered Section 63 of the Executive Law and Executive

Order No. 58 issued thereunder, unconstitutional and void,

as applied, under the Due. Process Clause of the Con-

stitution.

This court has held that “(w)e have not hesitated on

direct review to strike down applications of constitutional

40

statutes which we have found to be unconstitutionally

applied.” (Cameron v. Johnson, 390 US 611; Cox v.

Louisiana, 379 US 559; Steffel v. Thompson, 415 U.S. 452;

Allee v. Medrano, 416 US 802, 815).

In sum, this Petitioner, as all others similarly situated

before the Extraordinary Term, have been deprived of the

substantive right to be tried by a judge randomly chosen.

Instead, He is now compelled to stand trial before the

Governor’s personally hand-picked judge and hand-picked

Special Prosecutor, both of whom are summarily

removable at the instance, will, whim or caprice of the

Executive.

A litigant at the bar of criminal justice before the Ex-

traordinary Special and Trial Term of The Supreme Court

is effectively deprived of the equal protection of the laws

accorded all other criminal defendants in regularly con-

stituted terms of the Supreme Court.

In net effect, therefore, the Petitioner has no

meaningful access to the state court, or “fair and sufficient

opportunity for vindication of federal constitutional

rights.”’ (Kugler v. Helfant, US , April 28, 1975).

Directly applicable is Perez v. Ledema, 401 US 27, at p.

82, wherein the Court recently stated in a concurring

opinion by Brennan, White and Marshall, JJ:

“Where the ground is bad-faith harassment,

intervention is justified whether or not a state

prosecution is pending. Intervention in such good

cases does not interfere with the normal good-faith

enforcement of state criminal law by constitutional

means, and does not necessarily require a decision

on the constitutionality of a state statute. It simply

prevents particular unconstitutional use of the

State’s criminal law in bad faith against the

Federal plaintiff.”

41

In Allee v. Medrano, 416 US 802, supra, the Court

recently held: .

“Isolated incidents of police misconduct under

valid statutes would not, of course, be cause for the

exercise of a federal court’s equitable powers. . . .

Where, as here, there is a persistent pattern of

police misconduct, injunctive relief is ap-

propriate.”

In Kugler v. Helfant., US- , April 28, 1975,

17 CrL 3007, supra the Court stated:

“the Court in Younger left room for federal

equitable intervention in a state criminal trial

where there is a showing of “bad faith” or

“harassment” by state officials responsible for the

prosecution, id., at 5S, where the state law to be

applied in the criminal proceeding is “flagrantly

and patently violative of express constitutional

prohibitions,” id., at 53, or where there exist other

“extraordinary circumstances in which the

necessary irreparable injury can be shown even in

the absence of the usual prerequisites of bad faith

and harassment.”

Measured squarely by these tests, the Respondent's

persistent pattern of bad-faith prosecution and ex-

traordinary «misconduct, astride the facially un-

constitutional statutes at bar, clearly warranted federal

intervention of Declaratory and Injunctive Relief under the

Due Process Clause of the Fifth and Fourteenth Amend-

ments of the Constitution, and the redress provisions of

Title 28 U.S.C. 1343 (3).

Radically distinguishable from Kugler v. Helfant, supra.

there is here no legally constituted Court under the patently

unconstitutional Section 149 Judiciary Law of New York,

both as to the total lack of independence of the judiciary,

42

and as to the intrinsic denial of Petitioner’s elemental

rights of procedural due process, as compared to all other

defendants of the regularly constituted criminal terms.

Unlike Kugler, supra, there is here but a single, solitary

judge alone—instantly removable by the Governor—to

whom Petitioner is absolutely restricted for the redress of .

his federal constitutional rights to a fair and impartial trial,

save only for the severely limited right to apply to a Justice

of the Appellate Division for discretionary authorization to

present pre-trial motions before such Court, thus denying

to Petitioner the equal protection of the laws.

_ What is fundamentally at stake in the within Petition for

a Writ of Certiorari is the “imperative of judicial integrity”

(Elkins v. United States, 364 US 206, 222; Terry v. Ohio,

392 US 1, 12-13).

Entrapment, in and of itself, deeply offends ‘the highest

public policy in the maintenance of the integrity of ad-

ministration . . .It is abhorrent, to the sense of justice,”

declared Chief Justice Charles Evans Hughes, writing for

the Court in Sorrells v. United States, 287 US 435, 446-8.

Further, said Mr. Justice Hughes:

“...such an application (entrapment) is so

shocking to the sense of justice that it has been

urged that it is the duty of the Court to stop the

prosecution in the interest of the Government

itself, to protect it from the illegal conduct of its

officers and to preserve the purity of its courts.”

As Mr. Justice Brandeis stated in his classic dissent in

Olmstead v. United States, 277 US 438:

“Our government is the potent, the omnipresent

teacher. For good or for ill, it teaches the whole

people by its example.,,. If the government

becomes a lawbreaker, it breeds contempt for law;

it invites every man to become a law unto himself;

it invites anarchy.”

43

CONCLUSION

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE GRANTED.

Respectfully submitted,

HERVEY & LEGUM

Attorneys for Petitioner,

Office & P.O. Address,

16 Court Street,

Brooklyn, New York 11241

212-852-2464

DATED: May 8, 1975

AARON NUSSBAUM, of Counsel. |