# Petition for a Writ of Certiorari — Steinman v. Nadjari

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 1009

## Text

“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. |

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0878%3A1. Public record. Not legal advice.