# Motion to Affirm — Ross v. Reda > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1347%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Affirm - **Published:** January 1, 1975 - **Citation:** 423 U.S. 892 ## Text TABLE OF CONTENTS i He ee ne eh ed) 1 B. Reasons why the questions on which the de- cision of the cause depends are so unsubstantial as not to need further argument ___.__ | 2 Statement of Facts _____ ss Shad AION 2 D. Permission for an out-of-state attorney to ap- pear pro hac vice in an action pending in a state court is a privilege, not aright. == 6 E. Before a federal court can hear a habeas corpus claim, petitioner must have exhausted his state BE RET nic RRR Ne SiON ae 12 F. The rulings of a trial court, after reviewing a defendant’s motions, are not tainted with bias merely because they are the same in result as those of a previous judge who was removed_____ 16 G. Pursuant to Title 28 USC, Section 2254 (d), the United States District Court is bound by a fac- tual finding of a lower state court where such a factual finding is relevant to a proceeding in ha- beas corpus. The United States District Court must apply federal constitutional principles to relevant factual determinations in ruling upon a petition for habeas corpus ______________—s—s«:‘17 Re SDE SIT OD seiialigiieneets 23 | Certificate of Service _..................________ 24 ; eI eek hts naebee cae tk eaieo’ 25 TABLE OF AUTHORITIES AND REFERENCES Page Albertson v. Johnson, 440 F 2d 1201 (6th Cir 1971) 13 Backer v. Commissioner of Internal Revenue 275 F 2d 141 (Sth Cir. 1960) _........_._.... 7 Brown v. Allen, 344 US 443, 506 ___.__.__________ 19 Burnham v. Brush, 1716 Misc. 39, 26 NYS 387 LUCCA Re i Bek PE SS ee 8 Chandler v. Fretag, 348 US 3 (1954) _.-.__------ -— = g i g 3 f bg % ® DLR PELE LEAL MLL ECE PLE LEED CIA 14 in the 8-1 holding of Picard v. Connor, 404 U.S. 270 (1971). In Picard, a state prisoner sought reversal of his con- viction in state court on the ground that the procedures used to amend the indictment by which he was prosecuted were not in compliance with state law. Moreover, on federal habeas corpus, petitioner appended the new argu- ment that such procedure also denied him equal protec- tion of the laws under the fourteenth amendment. The Supreme Court held that he had not exhausted his state remedies because the state court had not had an oppor- tunity to hear the federal claim: We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent “unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution,” Ex parte Royall, supra, at 251, 29 L Ed 871, it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaus- tion of state remedies. According, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts. See Darr v Burford, supra, at 203, 94 L Ed at 766; Davis v Burke, 179 US 399, 401-403, 45 L Ed 249, 250, 251. 21S Ct 210 (1900). * * % We are thus unable to agree with that court that respondent provided the Massachusetts “court with ‘an opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim.’ ” 434 F2d, at 674. To be sure, respondent presented all 15 the facts. Yet the constitutional claim the Court of Appeals found inherent in those facts was never brought to the attention of the state courts. The Su- preme Judicial Court dealt with the arguments re- spondent offered; we cannot fault that court for fail- ing also to consider sua sponte whether the indict- ment procedure denied respondent equal protection of the laws. 404 U.S. at 275-77. (emphasis added). Conceivably, the present situation presents a much stronger basis for the application of this rule, for in Picard the petitioner, at the state level, did make a claim that at least “resembled” the equal protection grounds sought on habeas corpus. Mr. Justice Doublas, in his dis- sent, stressed this particular factor: He raised in his brief before the Supreme Judicial Court of Massachusetts his claim that such a sub- stitution denied him that quantum of due process required by the Fourteenth Amendment “‘in that he was put to trial without having been indicted by a Grand Jury.” He did not refer to the Equal Protec- tion Clause which is also a part of the Fourteenth Amendment. But that is a nicety irrelevant to the maintenance. 404 U.S. at 278-79. With the conclusion of Picard stand- ing in the face of this objection so must it stand in the present circumstances. Picard has not been overruled. While the Supreme Court in the past few years has not sought to re-establish its standards [that is, it has deen cited only a few times in passing reference], the opinion has not been criticized by either the Court or any of the court of appeals. To the contrary, the circuit courts have faithfully obeyed its mandates without reservation. See e.g., Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir. 1972); United States v. SGA PEP EPO LBL TIPO A eX ik 16 Zelker, 496 F.2d 991 (2nd Cir. 1974); United States ex rel Hayward v. Johnson; 508 F.2d 322, 330 (3rd Cir. 1975); Saunders v. Cox, 470 F.2d 734, 736 (4th Cir. 1972); Minaffe v. Estelle, 491 F.2d 1096 (5th Cir. 1974); Macon v. Lask, 458 F.2d 942, 948 (7th Cir. 1972): Smith v. Wolff, 506 F.2d 556, 558 (8th Cir. 1974), Williams v. Hocker, 463 F.2d 234, 235 (9th Cir. 1972); Ramirez v. Rodriguez, 467 F.2d 822, 823 (10th Cir. 1972). F. THE RULINGS OF A TRIAL COURT, AFTER REVIEWING A DEFENDANT'S MOTIONS, ARE NOT TAINTED WITH BIAS MERELY BECAUSE THEY ARE THE SAME IN RESULT AS THOSE OF A PREVIOUS JUDGE WHO WAS REMOVED. Petitioner argues that the taint of bias, imputed from the previously disqualified judge, must attach to the rulings of the trial judge in this case. He alleges that the record reveals a “hesitancy” on the part of the trial judge to “secondguess” the chief judge of his court. Furthermore, he argues that because Judge Reda’s rul- ings were the same in result as rulings made by Judge Fais who was removed, they must be erroneous. The case of Tumey v. Ohio, 273 U.S. 510 (1927), in- volved a trial in a mayor’s court where the mayor only received remuneration when he convicted. The Supreme Court concluded that such a financial interest violates the due process rights of the defendant. Petitioner argues that Tumey and cases decided in similar situations should apply here. Clearly they do not. Judge Reda is an inde- pendently elected official, with a fixed salary, answerable only to the citizens of the community. The showing of “hesitancy” which petitioner infers from the record does not begin to approach the inherent bias of a pecuniary interest. Moreover, petitioner’s insinuation of bias by as- sociation because Judge Fais is the chief judge of the court on which Judge Reda sits, must be rejected as a highly inappropriate assertion. 17 Petitioner relies heavily upon the probability that Judge Reda could not have fully considered all the motions presented to him during the time in which he reached his decisions. This probability combined with Judge Reda’s statement that he concurred with the rul- ings of Judge Fais is sufficient cause for reversal of those rulings according to petitioner. Speculation as to the mental processes of a trial judge has never been the standard applied when reviewing his rulings for error. The only workable standard to appiy here is whether the rulings are clearly erroneous. Petitioner, except for two of the rulings, does not dispute them as matters of law. The two rulings which petitioner does dispute were appealed and argued at length in the Court of Appeals of Franklin County, Ohio, and are further argued in this brief. They were clearly not er- roneous. The arguments which petitioner advances to illustrate that Judge Reda’s rulings are tainted with bias are based upon inference and conjecture. As such, their status as a showing of a violation of petitioner’s due process rights is dubious at best. G. PURSUANT TO TITLE 28 USC, Section 2254 (d)) THE UNITED STATES DISTRICT COURT IS BOUND BY A FACTUAL FINDING OF A LOWER STATE COURT WHERE SUCH A FACTUAL FINDING IS RELEVANT TO A PROCEEDING IN HABEAS CORPUS. THE UNITED STATES DISTRICT COURT MUST APPLY FEDERAL CONSTITUTIONAL PRINCIPLES TO RELEVANT FACTUAL DETERMINATIONS IN RULING UPON A PETITION FOR HABEAS CORPUS. In this case the federal district court judge did accept a factual determination by a lower state court; the judge then applied federal constitutional principles to this 18 factual determination, and then made its tuling on the petition for habeas corpus. Therefore, no error was com- mitted by the United States District Court judge in this proceeding. The instant case is very similar to the case of Matthews v. Wingo (1973 CA6 Ky), 474 F2d 1266, ert. den. 411 US 985, 36 LE2d 963, 93 SCt 2283, where this court ap- proved a district court’s acceptance of a state court’s adjudication of the petitioner’s competency. The following facts were relied upon by the United States District Court in the prior habeas corpus pro- ceeding that is now before this court. Durirg a proceed- ing in the Franklin County Municipal Cour: on July 10, 1972, Judge Reda, a Franklin County Muricipal Court judge, questioned Mr. Kunstler: I am concerned about your conduct outside the court room. I have never met you before, Mr. Kunstler, but I had reports about your conduct. Not only in this jurisdiction but also in other jurisdictions out- side the court room. Now, do you have any statements tha: you would like to make to the court with respect to what you believe an attorney’s conduct should be outside the court room? Mr. Kunstler responded, in relevant part: Surely, Your Honor, I would be glad to. Outside of the court room I have every right to all the First Amendment privileges of any other person. [Mr. Kunstler then referred to Chase v Robeson, 435 F2d 1059 (7th Cir. 1970)]...They said in that case that unless you can show by an evidentiary hearing that there is a clear and present danger to the admin- istration of justice, no court can bind a lawyer or his client from speaking in a criminal matter extra- judicial statements. This is the standard which I 19 have now adopted for myself. I think it’s the law of the land, and I think it’s clear... So I would never promise Your Honor that I would not speak outside. I will speak outside, because I think to bind me would be unconstitutional and would make attorneys have different First Amendment rights than any- body else... The above stateinent by Mr. Kunstler certainly fits within criteria set out in Brown vs. Allen, 344 US 443, at page 506, where the court stated: “ “By issues of fact’ we mean to refer to what are termed basic, primary or historical facts; facts ‘in the sense of a recital of external events and the > 99 credibility of their narrators’ ”. OCC L eR Gee The foregoing statement by Mr. Kunstler formed the background of facts which lead to the conclusion by the j Court of Appeals of Franklin County, Ohio, that Mr. Kunstler would not comply with Canon 7 of the Code of Professional Responsibility as adopted by the Supreme Court of Ohio. Canon 7 in pertinent part reads as follows: “A goal of our iegal system is that each party shall have his case, criminal or civil, adjudicated by an impartial tribunal. The attainment of this goal may be defeated by dissemination of news or comments which tend to influence judge or jury. Such news or comments may prevent prospective jurors from being impartial «i the outset of the trial and may also interfere with the obligation of jurors to base their verdict solely upon the evidence admitted in the trial. The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tri- bunal. For these reasons, standards of permissible and prohibited conduct of a lawyer with respect to trial publicity have been established.” a a a le eee | ENA at LE OO FEAT ALE eB . 20 The disciplinary rules specifically deal with the question of trial publicity and DR 7-107 (B) provides as follows: “A lawyer or law firm associated with the prosecu- tion or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to: (1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused. (2) The possibility of a plea of guilty to the of- fense charged or to a lesser offense. (3) The existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement. (4) The performance or results of any examina- tions or tests or the refusal or failure of the ac- cused to submit to examinations or tests. (5) The identity, testimony, or credibility of a prospective witness. (6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.” DR 7-107 (B) does not preclude a lawyer during such period from announcing: (1) The name, age, residence, occupation, and family status of the accused. (2) If the accused has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he May present. (3) A request for assistance in obtaining evidence. (4) The identity of the victim of the crime. 21 (5) The fact, time, and place of arrest, resistance, pursuit, and use of weapons. (6) The identity of investigating and arresting officers or agencies and the length of the investiga- tion. (7) At the time of seizure, a description of the physical evidence seized, other than a confession, ad- mission, or statement. (8) The nature, substance, or text of the charge. (9) Quotations from or references to public rec- ords of the court in the case. (10) The scheduling or result of any step in the judicial proceedings. (11) That the accused denies the charges made against him.” DR 7-107 (D) deals specifically with out-of-court state- ments during trial, and provides as follows: “During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra- judicial statement that a reasonable person would expect to be disseminated by means of public com- munication and that relates to the trial, parties, or issues in the trial ur other matters that are reason- ably likely to interfere with a fair trial, except that he may quote from or refer without comment to public records of the court in the case.” Based on the statement of Mr. Kunstler and upon an analysis of Canon 7, ‘the Court of Appeals of Franklin County, Ohio, made the following ruling: From Mr. Kunstler’s statement, the trial court was justified in conclusing that Mr. Kunstler would not comply with the standards established by Canon 7 of the Code of Professional Responsibility with re- UN EC FIRING Gai 8 22 spect to out-of-court statements but, rather, would only comply with the lesser standard of Chase [v. Robeson, 435 F 2d 1059 (7th Cir. 1970)] as he inter- preted that standard to be. We find Canon 7 of the Code of Professional Responsibility, as recommend- ed by the American Bar Association and adopted by the Supreme Court of Ohio, to be a constitutionally valid regulation of the conduct of attorneys with respect to out-of-court statements concerning pend- ing litigation. In fact, such canon would seem to be a by Sheppard v. Maxwell, (1966) 384 US The factual statement made by Mr. Kunstler at the municipal court hearing amply supports the finding of the Court of Appeals of Franklin County. In ruling upon the petition for a writ of habeas corpus the United States district judge ruled that the record of the case supported the conclusion that Mr. Kunstler would not comply with Canon 7. The district court judge followed this finding by a recital of pertinent federal cases dealing with right to counsel and in page 11. of its decision made the follow- ing finding: “The assertion that a trial court has the unreview- able discretion to refuse to admit, pro hac vice, a criminal defendant’s otherwise fully qualified coun- sel on the sole ground that he is not a member of the bar of the court’s jurisdiction is untenable...” It is apparent from the ruling of the United States Dis- trict Court that he followed all procedures in a proper manner in making the foregoing ruling. He was bound to accept factual conclusions from lower state courts. He did this. He was further bound to apply federal con- stitutional standards to these factual determinations. He did this. Therefore, it is respectfully submitted that petitioner-appellant’s first claim of error is not well taken. PREREAELIEL COLLIN LONI! LONE ER GARE HII LET TRG ST OR , T. RRA Di reined 4. ts a oee ee 23 CONCLUSION Respondent respectfully submits that this court should affirm the judgment of the United States Court of Ap- peals for the Sixth Circuit, on the ground that it is mani- fested that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. - With the exception of the two new issues raised by the petitioner in his petition, this total matter amounts simply to a review for a second time by this court of pre- cisely the same issues raised by petitioner in his appeal during the October Term of 1973 in Case No. A-554. The court at that time declined to hear this case and no differences in persuasion have been offered as to why this court should not again decline to hear this case. Respondent respectfully submits that the judgment of the Sixth Circuit, Court of Appeals, should be affirmed. Respectfully submitted, i DEPARTMENT OF Law, City of Columbus, Ohio JAMES J. HUGHES, JR., City Attorney 120 W. Gay Street Columbus, Ohio 43215 CarL T. WOLFROM, Special Counsel to the City Attorney Suite 1111, 50 W. Broad Street Columbus, Ohio 43215 Telephone (614) 228-3569 Counsel for Respondent. ALMOND LL DRC ROM PIP 0 BIA ATO 24 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion to Affirm was duly mailed, postage prepaid, to the following attorneys for petitioner, this 2oday of September _, 1975: Morton Stavis Doris PETERSON Wituiam M. KunstTLErR c/o Center for Constitutional Rights 853 Broadway New York, New York 10003 R. RayMonp Twouie, Jr. 186 East 11th Avenue Columbus, Ohio 43201 C el for Petitioner ora & CarL T. WoLFRoM, Counsel for Respondent 25 APPENDIX AFFIDAVIT STATE OF OHIO COUNTY OF FRANKLIN SS Lieutenant Thomas A. Waters, being first duly sworn, deposes and says that on the 23rd day of April, 1972, at approximately 8:00 p.m., affiant was present at a rally being held for defendant Charles Ross at the steps of the Columbus City Hall, in the City of Columbus, County of Franklin, State of Ohio; Affiant further says that attor- ney William M. Kunstler made the following statement to a crowd of approximately 1,000 persons: Judge Fais wouldn’t let Mr. Ross have a courtroom; he wouldn’t let Mr. Ross have a lawyer; .. . You know what I say to Judge Fais, fuck him! THomas A. WATERS Sworn to and subscribed before me this 13th day of June, 1973. CarRL T. WOLFROM Notary Public for the State of Ohio --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1347%3A4. Public record. Not legal advice.