Petition for Writ of Certiorari — MacDonald v. United States

Page

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GREE Shared ccheceNe veubactbi chic ctdentsvawes 2

Bg PME TUT TTTIC TET EET eo 2

Statutory Provisions Involved .................005: 2

Constitutional Provision Involved .................. 3

eg gk ok Se eee eT yer errr rer 3

Berabery GF Cie PTOCRWUINMG onic ccccavssaascerscse 7

Reasons for Granting the Writ ...............ee08. 12

J. An Order Denying a Motion for a Change of

Venue, in the Face of Uncontroverted Evidence

That Such a Denial Will Deprive the Defendant

of Effective Assistance of Counsel and Utterly

Bankrupt Him, Is an Appealable Order Within

the Meaning of 28 U.S.C. § 1291 .............. 12

II. The Dual Burdens of the Bankruptcy of the Pe-

titioner and the Denial of Effective Assistance

of Counsel, Which Are the Inevitable Results of

the District Court’s Refusal to Grant Petition-

er’s Motion for Transfer, Constitute an Abuse

of Discretion Amounting to a Denial of Due

Process of Law as Guaranteed by the Fifth

Amendment of the Constitution .............. 22

Ee oo ode phe baa SURE eee tk ke Fah 41

APPENDICES:

Appendix A

Order of the Fourth Cireuit Court ............. la

Appendix B

Order on Motion to Transfer .................. 3a

Index Continued

Appendix C

Financial Statement of Petitioner

Appendix D

Comparative Cost of Trial Statement of Petitioner 13a

Appendix E

Affidavit of Petitioner Sur Costs Incurred in Con-

nection with Hearings on Pre-Trial Motions ... 14a

TABLE OF CITATIONS

CasEs:

All States Freight, Inc. v. Modarelli, 196 F.2d 1010 (3d

ls NE Sel eg A Eig Va PERS AR REKAA UN cc eea sis 19

A, Olnick and Sons v. Dempster Brothers, Inc., 365

ee WUE GEE s SOE ope h i coud ded ccasvecenccs 19

Cohen v. Beneficial Finance, 337 U.S. 541 (1948) . .12, 13, 14

Coleman v. Alabama, 399 U.S. 1 (1970) ............. 30

Commissioner v. Tellier, 383 U.S. 687 (1966) ........ 26

DiBella v. United States, 369 U.S. 121 (1962) ....... 14, 20

Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir. 1950).. 19

Kyle v. United States, 211 F.2d 912 (9th Cir. 1954) .. 14

Lansdown v. United States, 460 F.2d (4th Cir. 1972) . 14

Platt v. Minnesota Mining & Manufacturing Co., 314

oe GB BS ee eer ere 25

Platt v. Minnesota Mining & Manufacturing Co., 376

SE CRED AS ck wae kc hans aid cas i vides 19, 31

Platt v. Minnesota Mining & Manufacturing Co., 345

Fe PE ATE SPO eo kd cave cecieedecesss 23, 32

Ratke v. Picard, 283 F.2d 945 (6th Cir. 1960) ........ 19

United States v. Johnson, 323 U.S. 273 (1944)

Index Continued iii

Page

Sratures AND FeperaL Ruwes or CriMinaL PRocEDURE:

10 U.8.C. 8 BBB occ. cree cece cenccencecnccccccneces 3

QB U.S.C. 8 1254 ...ccc cers cccccccecvcenncennnncnce 2

9B U.B.0. 8 1291... cccccncccencccnccccnnesecenens 2

; Bik Cole D) NETO NTETTTETETitirirrrrry 12

Fed. Rules Cr. Proc. Rule 21(b) «1... 6... eee eee eee 1,3

AUTHORITIES :

Administrative Office of the United States Courts, An-

nual Report to the Director, 1974, pp. A-56, 57;

1X-108: amended portion, pp. A-56, 57; [X-108.. 33

Federal Aviation Agency Statistical Handbook of Avia-

tion Calendar Year 1974 .......cccc ween eeeeees 34

9 Moore’s Federal Practice and Procedure, pp. 130-137,

BODIE vc isncn cacccacccacenssteecencccssuness 13, 19

IN THE

Supreme Court of the United States

OcrToBER TERM, 1975

No.

JEFFREY R. MacDonatp, Petitioner,

v.

Unirep States oF AMEriIca, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner, Dr. Jeffrey R. MacDonald, repect-

fully prays that a Writ of Certiorari issue to review

the dismissal of Petitioner’s appeal to the United States

Court of Appeals for the Fourth Circuit from the de-

nial by the District Court for the Eastern District of

North Carolina of his motion to transfer under Federal

Rule of Criminal Procedure 21(b).

The Order denying the motion to transfer was made

and entered on May 30, 1975. The Notice of Appeal

was filed June 2, 1975. The Fourth Circuit Court of

Appeals dismissed Petitioner’s appeal from that Order

on July 1, 1975.

2

OPINION BELOW

The Order of the Fourth Circuit Court of Appeals

appears as Appendix A hereto. The Order on Motion

to Transfer, made and entered by Judge F. T. Dupree,

Jr., in the District Court for the Eastern District of

North Carolina appears as Appendix B.

JURISDICTION

The dismissal of Petitioner’s appeal was entered on

July 1, 1975. This Petition has been filed within 30

days thereof. This Court’s jurisdiction is invoked pur-

suant to 28 U.S.C, § 1254.

QUESTION PRESENTED

Whether an orde: .° saying a motion for transfer in a

criminal case, which so substantially prejudices the

rights of the petitioner as to constitute a denial of due

process, and of which there can be no meaningful post-

trial review, is properly the subject of an interlocutory

appeal ?

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1291:

Final decisions of district courts.

The courts of appeal shall have jurisdiction of ap-

peals from all final decisions of the district courts of

the United States, the United States District Court

for the District of the Canal Zone, the District Court

of Guam, and the District Court of the Virgin Islands,

except where a direct review may be had by the Su-

preme Court.

3

Federal Rule of Criminal Procedure 21(b):

Transfer from the District for trial.

(b) Transfer in other cases. For the convenience of

parties and witnesses, and in the interest of justice, the

court upon motion of the defendant may transfer the

proceedings as to him or any one or more of the counts

thereof to another district.

CONSTITUTIONAL PROVISION INVOLVED

The Constitutional provision involved is the Fifth

Amendment providing in part that ‘‘No person shall

. . . be deprived of life, liberty or property without

due process of law... .”

HISTORY OF THE CASE

In 1970, the Petitioner, Dr. Jeffrey R. MacDonald, a

medical doctor, was serving in the United States Army,

attached to a Green Beret unit at Fort Bragg, North

Carolina. On February 17, 1970, a group of intruders

broke into the MacDonald home, stabbed and beat the

Petitioner into unconsciousness, and murdered his wife,

Colette, and his two daughters, Kristen (age 3) and

Kimberly (age 6). Petitioner received a life-threaten-

ing wound and was hospitalized for his injuries.

Failing to locate any viable suspects for the crime,

Army investigators caused the Petitioner to be arrest-

ed .nd charged on May 1, 1970. Since the nature of

the charges required trial by general court-martial,

Petitioner’s commanding officer ordered the convening

of formal proceedings under Article 32 of the Uniform

Code of Military Justice, 10 U.S.C. § 832. The presiding

officer, an infantry colonel with thirty years service

4

and substantial court-martial experience, conducted the

Article S2 judicial proceedings evor a period of tive

months, tneluding four full weeks of court proceedings,

The Petitioner and the Government were represent-

ed throughout by counsel, Chief counsel for the Peti-

tioner was Bernard L. Segal, who was, at that time, a

partner in the Chiladelphia law firm of Segal, Appel &

Natali.

During the Article 32 proceedings, the Government

was directed to, and did present all evidence Known to

it, The Petitioner presented a full defense on the

charges and testified under oath at length and was sub-

jected to eross-examination. During the course of the

proceedings, substantial evidence was presented which

Was gathered by psychiatric experts voth for the Gev-

erument and for the Petitioner, Experts for both sides

agreed that the Petitioner was ‘not hiding any evi-

denee™ regarding the night his family was murdered,

There was also psvehiatric testimony that Petitioner

Was “ineapable” of committing the crimes with which

he was charged.

Following the conclusion of these judicial proceed-

ings, the Article 22 officer, Colonel Warren Rock, sub-

mitted a M+ page report in which he recommended the

dismissal ef the charges against the Petitioner because

they were ‘wet frees” and further recommended the

investigation of a particular woman, who was identi-

tied at the Article 32 investigation, because of her pos-

sible invelvement in the murders, Acting on the reeom-

mendation ef the Article 32 judicial officer, the officer

who had convened the Article 82 proceedings, Major

General Edward Flanagan, dismissed the charges

against the Petitioner on October 28, 1970. In Decem-

at

?

ber, 1970, the Petitioner was honorably discharged

from the Army on hardship grounds and began to re-

build his life after the dual tragedy of the brutal loss

of his family and the false accusation of complicity

in their deaths.

Approximately six months after his discharge from

the Army, the Petitioner moved to Los Angeles, Cali

fornia, where he established his permanent residence,

Petitioner is still living in the Los Angeles area where

he is Director of Emergency Medicine at a major hos-

pital there, In 1972, Petitioner's chief counsel, Bernard

L. Segal joined the faculty of a Califorma Law

school, moved his family and took up permanent resi-

dence in the San Francisco area,

From January, 1971, to January, 1972, the Criminal

luvestigation Division (CLD) of the United States

Army conducted what it has represented was a com

plete, extensive and thorough remvestigation of the

murders of the MaeDenald family. In early 1972, the

CLD requested the United States Department of Jus-

tice to seek an indictment of the Petitioner for the

murders of his family. The Department of Justice

refused to do se and took no other substantive action

on the requests for the indictment of the Petitioner

because no evidence existed to support such a charge.

Sometime after June, 1972, however, Alfred Kassab,

the step-father of Petitioner's deceased wife, who had

been a staunch supperter of Petitioner at the Article

3 proceedings, and who testified in his behalf in the

strongest possible terms in 1970, inexplicably turned

against Petitioner, Kassab began demanding that the

Department of Justice prosecute Petitioner, He dis-

6

cussed his demands with newspaper reporters, and

stated publicly that both the Army and the Justice De-

partment had been incompetent in their investigation

and prosecution of Petitioner. Kassab repeatedly and

persistently threatened the Department of Justice with

adverse publicity, Congressional intervention and legal

action, should it fail to prosecute Petitioner.

Apparently, in an attempt to forestall Kassab’s erit-

icisms of the Department of Justice, Carl Belcher,

Chief of the General Crimes section of the Depart-

ment of Justice, wrote Kassab on January 10, 1974,

and stated:

... the evidence currently available in this case

is insufficient to warrant prosecution against Dr.

MacDonald at this time.

On March 10, 1974, the New York Times reported that

the Department of Justice was still of the position that

there was no basis to prosecute the Petitioner.

Having been informed of the Department’s decision

not to present evidence against Petitioner to a grand

jury, Kassab then undertook to force the Department

to reconsider its decision. He did this by publicly ae-

cusing the Department of a ‘‘cover-up,’’ and by sign-

ing ‘‘charges’’ of murder against Petitioner. These

‘“‘charges’’ were delivered personally by Kassab to

Judge Butler, Chief Judge of the United States Dis-

trict Court for the Eastern District of North Carolina

in April, 1974. All of this was accompanied by news-

paper publicity generated by Kassab. In response to

Kassab’s ‘‘charges,’’ Judge Butler addressed a letter

to the Justice Department requesting comments and

asking what action the Department would take on the

‘*charges.””

7

Shortly after Judge Butler forwarded the ‘‘charges,”’

which contained no new evidence against the Peti-

tioner, the Department of Justice determined that a

special grand jury would be convened with a view to

prosecuting the Petitioner. While the Grand Jury was

styled an investigative grand jury, the Petitioner was

the only person who was presented to it as a suspect.

This decision of the Department of Justice to con-

vene a special grand jury for the purpose of indicting

the Petitioner represented a reversal of the position

the Department had held for three years. It was re-

versed after the filing of the Kassab ‘‘charges,’’ al-

though they contained no new evidence.

The Department of Justice officials would not stand

by their decision that prosecution of Petitioner was

unwarranted, because of their bureaucratic fear that

charges of ‘‘cover-up’’ would be made against them.

They further feared, that in the post-Watergate era,

such accusations would jeopardize their personal job

security.

HISTORY OF THE PROCEEDINGS

On January 24, 1975, the Grand Jury returned an

indictment against the Petitioner. Defendant filed a

number of pre-trial motions, including a motion for

transfer under Federal Rule of Criminal Procedure

21(b) on the grounds of convenience and in the interests

of justice. That motion sought to have the trial of Pe-

titioner’s case transferred from the Eastern District of

North Carolina, where the indictment was brought, to

his home district, the Central District of California.

Lengthy evidentiary hearings were conducted on the

motion to transfer. The only evidence presented was

8

by the Petitioner. The Government rested solely upon

its written argument. The facts which were established,

without rebuttal, are as follows:

1. That Petitioner is a young doctor, a middle-class

professional person, without any income other than

what he earns as the Director of Emergency Medicine

in a hospital in the Los Angeles area. The record also

shows that he does not have unusual assets.’

2. That Petitioner’s defense, including trial in Cali-

fornia, will cost him not less than $150,000 and as much

as $300,000.”

3. If the trial of the Petitioner’s case is not trans-

ferred and instead remains in the Eastern District of

North Carolina, the cost of Petitioner’s defense will

be doubled, amounting to between $300,000 and

$600,000.*

4. The Petitioner has been offered an extraordinary

range of free services, legal and secretarial help, office

space and supplies by friends and supporters in the

Los Angeles area. Evidence of the above was submitted

by affidavit to the District Court. Petitioner has no

friends nor supporters in North Carolina and would

have to pay for all of these services there.

1The Petitioner’s financial statement, submitted under oath as

an exhibit to the District Court, is appended as Appendix C hereto.

*The Petitioner’s defense in the military proceedings, which

were considerably shorter and less complicated than will be his

defense to the present indictment, cost the Petitioner, his family

and his friends, $50,000. At that time he also received considerable

free assistance at the Army’s expense, which is not available to

him now. An anticipated budget for Petitioner’s defense was sub-

mitted, under oath, to the District Court and is appended hereto

as Appendix D.

® See Appendix D for comparative figures.

9

5. The effect of doubling the cost of the Petitioner’s

defense will be to render him bankrupt.

6. The Petitioner will lose his only source of income

if he is compelled to stand trial in the Eastern District

of North Carolina. If the trial is held in Los Angeles,

the record in the District Court is undisputed that he

will be able to continue to perform certain of his ad-

ministrative duties and to earn a significant portion

of his income with which to maintain his defense.‘

7. The refusal to transfer Petitioner’s case to Cali-

fornia will result in the loss to him of the principal

defense counsel who has continuously represented him

since the military proceedings were instituted in 1970.

Professor Bernard L. Segal has represented the

Petitioner throughout his five-year struggle to be vin-

dicated of these charges, commencing with the Army

prosecution through the pre-trial motions in this case.

Having moved to California and become a professor

of law in San Francisco, Professor Segal will be un-

able to represent the Petitioner if the trial is in the

Eastern District of North Carolina. However, Pro-

fessor Segal will be able to remain as Petitioner’s

counsel if the trial is held in California.

8. The loss of Professor Segal as counsel for the Pe-

titioner will result in an extraordinary delay of the

trial of the case. Petitioner will be required to retain

new counsel. The Government has represented to the

District Court that if one of its assistant counsel were

not able to remain in the case that it would take nine

months for another assistant counsel to become famil-

iar with the case.

* These facts were supported by affidavit and by specific findings

to that effect by the District Court judge.

10

9. The trial of the case in California will not repre-

sent a substantially greater inconvenience to the wit-

nesses than will trial in North Carolina. The Petitioner

intends to call 110 witnesses, exclusive of character wit-

nesses, Who may number an additional 25 persons. The

Government intends to call as many as 108 witnesses.

Of the 218 fact witnesses, for both sides only a small

number now reside in the Eastern District of North

Carolina. The great bulk of witnesses in the case are

Army personnel who have been transferred and have

moved throughout the United States and to seven for-

eign countries since 1970.

10. The trial of Petitioner’s case, if it remains in the

Eastern District of North Carolina, will be held in

Raleigh. The overwhelming majority of the witnesses

will have to be flown to the trial. Raleigh has grossly

inadequate and inconvenient airline service. This is to

be contrasted to the facts in the record showing that

Los Angeles, California, is one of the most accessible

cities in the United States.

11. The transfer of the case to the Central District

of California will not delay the trial of the case. All

pre-trial motions in the case are being heard and de-

cided by the District Court of the Eastern District of

North Carolina. The dockets in both the Eastern Dis-

trict of North Carolina and the Central District of

California show that criminal cases in both districts

are being brought to trial in approximately three and

one-half months from arraignment. This is better than

the national average for all U.S. District Courts. As

of July 1, 1975, the Eastern District of North Carolina

has only two regular District Judges. The Central

District of California has seventeen District Judges

and eight full-time Magistrates. The involvement of

11

one of the two judges in the Eastern District of North

Carolina in a single case for any lengthy period of

time will seriously disrupt the judicial business in that

District. The trial of this case in the Central District

of California will not materially affect the disposition

of judicial business in that District.

The Government presented no evidence that the

transfer would cause any impediment to the prosecu-

tion of its case. The Petitioner, on the other hand,

demonstrated that extraordinary hardship would re-

sult if a transfer were not granted. Despite the evi-

dence of the Petitioner being uncontroverted on each

of the points asserted, and despite the serious consti-

tutional issues involved, the District Judge denied the

Petitioner’s request for transfer.

Faced with the District Court’s decision, the Peti-

tioner filed a Notice of Appeal to the United States

Court of Appeals for the Fourth Circuit on June 2,

1975. On motion by the United States, the Fourth Cir-

cuit Court of Appeals dismissed the appeal on July 1,

1975, as having been taken from a non-appealable or-

der. The Petitioner now seeks review by this Court,

by way of this Petition for Writ of Certiorari, in or-

der (1) to prevent Petitioner’s denial of due process

rights; and, (2) to assure that, if Petitioner is re-

quired to go to trial on these very serious charges, that

it be accomplished without forcing him into bank-

ruptey and with the full assistance of and representa-

tion by his chief counsel of five years standing.

12

REASONS FOR GRANTING THE WRIT

I. AN ORDER DENYING A MOTION FOR CHANGE OF

VENUE, IN THE FACE OF UNCONTROVERTED EVI-

DENCE THAT SUCH A DENIAL WILL DEPRIVE THE

DEFENDANT OF EFFECTIVE ASSISTANCE OF COUN-

SEL AND UTTERLY BANKRUPT HIM. IS AN APPEAL-

ABLE ORDER WITHIN THE MEANING OF 28 U.S.C.

§1291.

A. The Concept of Appealability Within the Context of

28 U.S.C. § 1291.

It has long been the rule, imposed by Congress, that

this Court and the several United States courts of

appeals have jurisdiction to hear appeals only from

‘*final’’ orders. The original harshness and inflexibility

of the finality rule led to a lengthy struggle by genera-

tions of federal litigants which has resulted in the

engrafting of statutory ° and judicial exceptions to the

rule.

A primary inroad into the finality rule was made by

this Court in its decision in the case of Cohen v. Bene-

ficial Finance, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed

1528 (1948). In that case, Justice Jackson, writing for

the majority, held that there existed a ‘‘small class

of claims of right which required appellate review be-

fore trial.’’ He described these as claims:

. separable from, and collateral to, rights as-

serted in the action, too important to be denied

review and too independent of the cause itself to

require that appellate consideration be deferred

until the whole ease is adjudicated. The Court has

long given this provision of the statute this prac-

tical rather than a technical construction.

337 U.S. at 546.

5 See 28 U.S.C. § 1292.

13

This Court’s decision in that case upheld the appeal-

ability of an interlocutory ruling which substantially

prejudiced that appellant’s ability to proceed with the

litigation. The brief discussion of the issue of appeal-

ability in the Cohen decision made this Court’s position

clear: even the paramount policy against interlocutory

appeal does not require indifference to the interests of

justice.

The confused tangle of lower court litigation on the

issue of appealability since the establishment of the

Cohen exception is history. What was for the Cohen

Court a rational exception to an inflexible rule, has

become a monstrous headache for the lower federal

courts as countless litigants over the ensuing 25 years

have attempted to urge uniqueness and the need for

a remedy for their particular interlocutory grievance.

In essence, the courts of appeals have been required

to decide the appealability of innumerable varieties of

interlocutory orders.°

The burden is no less for the federal litigant who

is very often unsure whether his proper remedy lies

in mandamus or in direct appeal. In order to insure

proper protection of a client’s rights, an attorney often

is compelled to file both a petition for mandamus and

an appeal.’ The result is a duplication of effort by all

® Professor Moore, in his treatise on federal courts, required an

extended section for an attempt to reconcile many of these areas.

9 Moore’s Federal Practice and Procedure, pp. 130-137, 152-196.

One brief example of the confusion in the area is the law on the

appealability of orders compelling testimony or the production of

documents. Four circuits have held such orders not appealable,

four others have held them appealable, and the Fifth Circuit has

held both ways.

T See Cohen v. Beneficial Finance, supra, 337 U.S. at 547.

14

parties and a multiplying burden on the appellate

courts.

The law regarding the appealability of orders in

federal criminal cases is no less confusing. While a

Cohen rationale has been applied in a few exceptional

cases, the overwhelming majority of decisions in the

courts of appeals regarding criminal interlocutory

orders have relied on language such as that in DiBella

v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed. 2d

614 (1962), as establishing an absolute bar against

interlocutory appeals in criminal cases. This approach

ignores important statements by this Court in cases

such as United States v. Johnson, 323 U.S. 273, 65 S.Ct.

249, 89 L.Ed. 236 (1944), regarding the fundamental

nature of certain interlocutory rights guaranteed to

criminal defendants. Many of these rights are mean-

ingless rhetoric unless they are enforceable before trial.

For criminal defendants, the uncertain application

of the Cohen exception by lower courts has meant that

there is virtually no Cohen exception in criminal cases

at all. This lack of effective remedy for the vindication

of certain rights is a critical deficiency requiring the

type of clear direction which only a decision by this

Court can provide.

B. The Cohen Exception Should Be Held Applicable to a Very

Limited Class of Criminal Transfer Motions

Thus, there do exist certain rights of criminal de-

fendants which must be raised on an interlocutory

appeal if they are to have any meaning at all. These

are rights unrelated to the question of the guilt or

5 Kyle v. United States, 211 F.2d 912 (9th Cir. 1954) ; Lansdown

v. United States, 460 F.2d 164 (4th Cir. 1972).

ns

15

innocence of the defendant, which are irreparably lost

if not vindicated before trial. Therefore, notwith-

standing the strong policy against interlocutory ap-

peals in criminal cases, denial of such rights is a

proper subject of appeal before trial. A limited class

of transfer cases falls squarely into this category and

they are defined in the following section.

1. Classification of transfer motions.

A proper analysis of the issue of appealability of

an order dealing with a change of venue requires that

the types of venue change available to a criminal de-

fendant under Rule 21 of the Federal Rules of Crim-

inal Procedure allows transfers on the following

grounds:

(a) inability to obtain a fair trial in the original dis-

trict due to prejudicial pretrial publicity ;

(b) transfer for convenience and in the interest of

justice.

It is a well recognized rule that denial of a motion

under Rule 21(a) is properly reviewed upon post-con-

‘viction appeal. It is only at that time that the appellate

court can fully review the issue in terms of the impact

of the prejudicial publicity on a defendant because

only then does it have the complete record of pretrial

and trial publicity, voir dire of the jury venire, and

the procedures used by the lower court to mitigate the

effect of such publicity during trial. Further, the

prejudice to a defendant, if any, may clearly be reme-

died by the granting of a new trial.

Motions made for the convenience of the parties or

in the interest of justice, under Rule 21(b), can be

divided into two groups. The first encompasses those

16

motions which are made because the transfer will sim-

ply result in a more convenient trial for a defendant

if tried in a district other than the one in which the

indictment is brought. The motions can be denominated

as ‘‘mere convenience’’ transfer motions.

The second type of motion is made by a defendant

when the denial of the motion will result in the sub-

stantial impairment of the conduct of the defense or

cause irreparable injury to his post-trial livelihood or

personal life. These are appropriately characterized

as ‘‘due process’’ 21(b) motions. It is this second type

of 21(b) transfer motion on which the Petitioner seeks

to have the Court focus its attention.

And, it is this second type of transfer motion which

Petitioner urges should be brought within the special

exception to finality under Cohen. Denial of a ‘‘mere

convenience’? motion will usually not result in severe

detriment nor permanent injury to a defendant nor to

the conduct of his defense. It is this type of matter

which should normally be entrusted solely to the dis-

cretion of the District Court Judge.

The second, or ‘‘due process’? 21(b) motion, how-

ever, is of an entirely different character. By its very

definition, the relief requested from the trial court is

so fundamental that denial will cause substantial prej-

udice to the conduct of the accused’s defense, or to his

livelihood or personal life, after trial. Further, the

injury resulting from an improper denial is irremedia-

ble after trial.

® By way of comparison, the Article 32 proceeding, where the mo-

tion may be made by a defendant to obtain trial in a forum where

a more favorable jury may be empaneled.

17

It is appropriate for the Court to ask, what wrongs

are so great or egregious that they cannot be remedied

upon post-conviction appeal? Certainly, three of the

wrongs which will result in this instance from a denial

of change of venue from the Eastern District of North

Carolina to the Central District of California are so

great and so egregious as to constitute a denial of due

process and to be irremediable by post-conviction ap-

peal:

(1) Irreparable injury to the professional and/or

personal life of a defendant presumed innocent under

the law. Included in this area must be the incipient

bankruptey of a defendant because of extraordinary

added costs arising from the failure to grant change of

venue.

(2) Deprivation of long-held and/or trusted counsel.

(3) Impairment of the ability of a defendant and his

counsel to conduct the most effective defense of the

case.

2. Post-conviction appeal is an inadequate remedy for denial

of a “due process” transfer motion.

The Government will doubtless urge that where such

a serious injury has been done to a defendant it will

most certainly be correctable upon post-conviction re-

view. Such a contention is wholly inadequate to meet

the interests involved in this case and should be re-

jected.

In the first instance, the contention assumes that

there will be a post-conviction review. This is little

solace to offer a defendant who has been acquitted but

who has been rendered bankrupt and has had to sacri-

18

fice career and professional position to maintain a sue-

cessful defense at a lengthy trial on very serious charg-

es. That defendant may have the sympathy of the judi-

cial system, but very little else, and certainly nothing

tangible.

The reliance upon post-conviction review ignores an

even more important point which is not present for the

defendant wronged by an improper denial of a Rule

21(a) motion to transfer because of prejudicial pub-

licity. Where such a motion is wrongfully denied, the

record simply becomes stronger as the trial goes on.

Often the offending media coverage will continue

through trial. The suspected biases of the community

will become manifest in the voir dire of the jurors. And,

inadequate protection by the trial judge in handling

this delicate problem will become more evident.

But, with a ‘due process’’ type 21(b) motion, the

trial record will most likely not reflect the grievous

harm to the defendant from the failure to grant the

change of venue. As a defendant’s resources diminish,

he is less able vigorously to prosecute his own defense.

Trial records do not give any insight into these diffi-

culties. If a defendant is deprived of long-standing

counsel by a District Court’s denial, there is never any

way which the significant, but subtly expressed, preju-

dices incurred thereby can be reflected in a trial ree-

ord.

3. The extraordinary remedy of mandamus is an inappropriate

remedy for denial of a “due process” transfer motion.

The extraordinary remedy of mandamus is as ill-

suited to this task as the remedy of post-conviction re-

view. As this Court is well aware, the courts of ap-

19

peals have been loath to grant a writ of mandamus "’

for a change of venue. The words of Judge Friendly,

in the case of A. Olnick and Sons v, Dempster Bros.,

Ine., 365 F.2d 439 (2d Cir, 1966), aptly expresses their

attitude:

In the fifteen years since this court first announced

willingness to consider such applications, Ford

Motor Co. v. Ryan, 182 F.2d 329 (2d Cir. 1950),

we have never granted one. But even so dismal a

record naturally does not prevent counsel from

accepting our invitation ....

365 U.S. at 446.

Assuming, arguendo," that the review of a transfer

motion by petition for a writ of mandamus is appro-

priate, the remedy is woefully inadequate for the se-

curing of the fundamental rights under discussion

here, These are pretrial rights so basic to our system

of justice that they ought not to be entrusted to the

vagaries of mandamus. Rights such as those discussed

above should be protected by the same standard of re-

view which is firmly secured for fundamental rights

arising during trial, sueh as Miranda and Fourth

Amendment rights.

The Third, and Sixth Cireuits have flatly refused to review

transfer motions by mandamus, All States Freight, Inc. v. Moda-

relli, 196 F.2d 1010 (3d Cir, 1952); Rathke v. Picard, 283 F.2d 945

(6th Cir.), cert. denied, 364 U.S. 927, 81 S.Ct. 353, 5 L.Ed.

2d 266 (1960), See also 9 Moore’s Federal Procedure and Practice

at 176-177.

This Court cast doubt upon the availability of mandamus

as a remedy in eases such as this, by way of dicta, in Platt v.

Minnesota Mining & Manufacturing Co., 376 U.S. 240, 244, 84 8.Ct.

769, 11 L.Ed. 2d 674 (1964).

20

4. The remedy of immediate, interlocutory appeal can secure

these fundamental. pretrial rights.

The Court may well be concerned that further re-

view in this area will open a new Pandora’s box of

interlocutory appellate litigation. Such will not be the

case.

The issue presented to the Court herein is quite nar-

row. It is wheher an order in a criminal case, which so

substantially prejudices the rights of a defendant as

to constitute a denial of due process, and of which

there can be no meaningful review after trial, is not a

proper instance to permit appellate review of an inter-

locutory order. The framework of the proposed excep-

tion can be well-defined and is firmly grounded in the

language of Justice Frankfurter, writing for the ma-

jority in DiBella v. United States, supra:

Since the procedural aspects of law deal with the

practical affairs of men and do not constitute an

abstract system of doctrinaire notions, Congress

has recognized the need of exceptions for interloc-

utory orders in certain types of proceedings where

the damage of error unreviewed before the judg-

ment is definitive and complete, see Collins v. Mil-

ler, 252 U.S. 364, 370, has been deemed greater

than the disruption caused by intermediate appeal.

369 U.S. at 124 (Emphasis added.)

Petitioner urges that this Court hold that the Cohen

exception to finality be applied to criminal cases such

as this as it has been applied to a limited number of

civil cases. In other words, he urges this Court to

permit an appeal from an interlocutory order in

eases where the order appealed from amounts to

a denial of due process of law, constitutes an infringe-

ment of a specific fundamental right, is not meaning-

21

fully reviewable after trial, and involves an issue

clearly separable from the issue of guilt or innocence

of the defendant.

5. This case is an appropriate case for the decision of this

important issue.

While the general policy against pre-trial appellate

review of interlocutory matters may be generally salu-

tary, there are, nevertheless, certain factual situations

in which the issues raised constitute a denial of due

process. When that occurs in a case where post-trial

review will not be able to right the denial of due proc-

ess which has occurred, an exception to the non-ap-

pealability of interlocutory orders is fully appropriate.

The facts documenting the need for change of venue

in the instant case are clear and compelling. They are

such that an exception to the finality rule thereon can

be drawn narrowly and precisely. Petitioner asserts

not one but two grounds upon which he has been denied

due process of the law by the District Court. However

this Court may view the stream of interlocutory peti-

tions for certiorari, the facts here demand attention

and relief. The Petitioner, a middle-class professional,

without unusual assets, is presently facing a lengthy

trial in a forum 3000 miles from his home and, after

his second acquittal, will face the tragedy of personal

bankruptcy. It is a trial in which few of the witnesses

are within the District where it will be held.

Petitioner is unable to find a single case wherein a

defendant was required to move for change of venue

in the face of personal bankruptcy and loss of counsel

of long standing. The complexity and mobility of our

society can only increase the likelihood that defend-

ants, from all walks of life, will face the prospect of

22

trial in a distant and grossly inconvenient forum. As

the number of such situations grows so will the number

of cases where, as here, the immense distances will af-

fect the defendant’s very ability to obtain a fair trial.

Only the remedy of interlocutory appeal will adequate-

ly safeguard the fundamental rights of Petitioner and

his successors.

Il. THE DUAL BURDENS OF THE BANKRUPTCY OF THE

PETITIONER AND THE DENIAL OF THE EFFECTIVE

ASSISTANCE OF COUNSEL WHICH ARE THE INEVI-

TABLE RESULTS OF THE DISTRICT COURT'S RE-

FUSAL TO GRANT PETITIONER’S MOTION FOR

TRANSFER, CONSTITUTE AN ABUSE OF DISCRETION

AMOUNTING TO A DENIAL OF DUE PROCESS OF

LAW AS GUARANTEED BY THE FIFTH AMENDMENT

OF THE CONSTITUTION.

The question presented to this Court by the instant

ease is what showing is necessary for a denial of a

motion for transfer under Rule 21(b) to amount to a

denial of due process of the law? The showing made

by the Petitioner here has been that the denial of his

motion to transfer will result in his personal bank-

ruptey and the loss of the assistance of his counsel of

five-years standing. It is sufficient to constitute a prima

facie showing of a denial of due process.

A. Failure to Transfer This Case Will Bankrupt the Petitioner.

After the military proceedings in 1970 against the

Petitioner were held to be ‘‘not true’’ and were dis-

missed, Petitioner moved to Los Angeles, in the Central

District of California. He has resided there now for

more than three and one-half years. He is the Director

of Emergency Medicine in a major hospital there, owns

a home in that District, and his widowed mother also

lives there.

4

r

3

23

In the final Seventh Circuit decision in Platt vy, Min-

nesota Mining & Manufacturing Co., 345 F.2d 621 (7th

Cir. 1965), the Court pointed out that the proper weight

to be given to the residence of the defendant is deter-

mined in light of its effect upon the convenience in

handling the case. Platt, supra, 345 F.2d at 682. Here,

the impact of the Petitioner’s residence, which is 3000

miles from the forum in which the trial is scheduled, is

enormous and cannot be dismissed lightly.

The trial of this case cannot help but be lengthy.

Estimates in the District Court varied from six weeks

(the Government’s latest upward estimate) to three

months (Petitioner’s estimate) for the trial of this

case.”* Petitioner will be required to be absent from his

home and professional duties for a twelve week period.

If the trial were to be held in Los Angeles, the Peti-

tioner would be able to continue in his administrative

capacity at St. Mary’s Hospital and thus continue earn-

ing income throughout the trial. The directors of the

hospital have confirmed the viability of this arrange-

ment.

If, however, the trial is held in the Eastern District

of North Carolina, the result is the opposite. Petitioner

will be unable to have any employment whatsoever.

During the period of heaviest expenditure for his de-

12 By way of comparison, the Article 32 proceeding, where the

evidence and the issues were considerably simpler, consumed four

full weeks of in-court sessions. (In the finest military tradition,

the Article 32 was convened at 8 a.m. and recessed at 5 p.m.) The

Government and the Petitioner have indicated that they will call

over 100 fact witnesses each. Petitioner also desires to call at least

25 character witnesses. It is not unreasonable to expect that the

voir dire will be extensive as well, since there has been substantial

pre-trial publicity in this case. An estimate of less than 3 months

under the circumstances is incredible.

24

fense, he will be utterly without income. It is the com-

bination of complete loss of income, combined with the

dramatie increase of cost, which will cause Petitioner’s

bankruptcy if the trial of this case is held in North

Carolina.

It is not merely the disruption of Petitioner’s affairs

or the total loss of income which is involved here. Trial

of this case in the Eastern District of North Carolina

will double the cost of Petitioner’s defense. Current

planning of the Petitioner’s defense indicates that the

defense team will include, throughout the trial of this

case, a full-time staff of eight to ten persons. During

a trial of this case in Raleigh, North Carolina, the Pe-

titioner will be required to house, feed and provide of-

fice space and equipment for these persons.

On the other hand, if the trial is held in the Central

District of California, the record shows Petitioner will

receive outstanding amounts of assistance, including

free legal assistance, lodging, meals, office space and

secretarial help for the conduct of his defense there.”

The result is that, if the trial is held in North Carolina,

the cost of Petitioner’s defense, estimated at $150,000

to $300,000 if held in the Central District of California,

will be catapulted to the astronomical and bankrupting

sum of $300,000 to $600,000.

These figures and the 2 to 1 ratio of costs between

the forums, is not based upon the mere speculative as-

sessment of costs by counsel for the Petitioner. At the

close of three days of pre-trial hearings in May, 1975,

a detailed statement of expenditures was submitted to

the District Court by affidavit, with a comparison fora

projected equivalent period in Los Angeles. The fig-

13 See p. 9, supra.

25

ures speak for themselves; the three days in Raleigh

cost $5,380.00, the same three days in Los Angeles

would have cost $2,660.00."

Of course, the demonstration of tremendous addi-

tional expense may not, of itself, be sufficient to estab-

lish that a trial in the distant forum of the Eastern

District of North Carolina will deprive the Petitioner

of his right to due process of the law. When the addi-

tional burden is considered in light of the Petitioner’s

personal financial situation, however, the denial of due

process becomes readily apparent.

In Platt v. Minnesota Mining and Manufacturing,

314 F.2d 369, 375 n. 3 (7th Cir. 1963), the Seventh Cir-

cuit held that the added expenditure of $100,000 for a

multimillion dollar corporation was sufficiently large

that a transfer was compelled. Significantly, there is

no information given as to what percentage of 3M’s

defense this $100,000 cost would have constituted.

Dr. MacDonald, Petitioner herein, is not a multi-

million dollar corporation, however. He does not even

possess any unusual assets. Dr. MacDonald is a middle-

class professional person with an automobile, a boat,

a home and a mortgage on all three. The three and one-

half years since his discharge from the Army did not

result in the accumulation of a vast personal fortune.

It is not difficult to see how the burden of trial in Los

Angeles alone, costing between $150,000 and $300,000

will be overwhelming for a person with a net worth

of only $36,000.

The comparison borders on the ludicrous when the

tax aspects of these expenses are considered. For the

14 The Petitioner’s affidavit, submitted in evidence to the District

Court is appended as Appendix E hereto.

26

corporate giant, 3-M, its $100,000 expenditure in de-

fending the anti-trust prosecution would have been

wholly tax deductible, Commissioner v. Tellier, 383

U.S. 687, 86 S.Ct. 1118, 16 L.Ed. 2d 185 (1966), thereby

reducing the effective expenditure by 50%. For Dr.

MacDonald, no part of his legal expenditures will be

tax deductible. For a single person in Dr. MacDonald’s

personal income bracket, this will mean that, for every

dollar necessary to defend himself, he will be required

to earn two dollars of gross income. Put more bluntly,

trial of this case in the Eastern District of North Caro-

lina will require the Petitioner, though wholly deprived

of income, to earn $600,000 to $1,200,000 to pay for his

defense. Can there be any doubt that such a tremendous

burden will bankrupt the Petitioner ?

This Court has long recognized, as did the Founding

Fathers, that the laying of venue in a district far from

a defendant’s home involves more than a question of

mere procedure. United States v. Johnson, supra, 323

U.S. at 273. The instant situation presents a problem

never foreseen by the authors of the Constitution. For

them, to lay venue in the locale where the crime was

committed, was virtually a specific guarantee that the

defendant would be tried where he resided and would

have the help and support of family and friends in the

defense of his case.

The development of our highly mobile society has

nullified this presumption. In the case of the United

States v. Johnson, supra, 323 U.S. at 273, this Court

grappled with the troubling issues raised by multi-

venue crimes. In the words of Justice Frankfurter,

writing for the majority:

[ Venue matters] touch closely the fair administra-

tion of criminal justice and the public confidence

De hee —

27

in it, on which it ultimately rests. ... Questions of

venue in criminal cases, therefore, are not merely

matters of formal legal procedure. They raise deep

issues of public policy in the light of which legis-

lation must be construed.

323 U.S. at 276 (Emphasis added.)

The problems have now grown beyond those arising

in multi-venue cases. The body of law which holds that

the Government is under no duty to exercise reasonable

diligence in procuring an indictment will more and

more frequently result in situations similar to the one

at bar where the Petitioner, in an effort to pursue a

normal life, will have moved, reestablished his resi-

dence, and then face prosecution in a distant forum.

This was the situation contemplated when the Fed-

eral Rules of Criminal Procedure were amended in

1966 to permit transfer of cases to districts where there

was no venue. And under the amended Rule, certainly,

Petitioner, an individual, is entitled to every bit as much

consideration as was accorded the corporation, Minne-

sota Mining and Manufacturing.

B. Failure to Transfer This Case Will Result in the Denial to the

Petitioner of Effective Assistance of Counsel.

The evidence presented to the District Court showed

that, at the present time, it will be impossible for the

Petitioner’s chief counsel, Professor Bernard Segal,

to continue as Petitioner’s counsel through an extended

trial in the Eastern District of North Carolina.

Professor Segal has served as chief counsel to the

Petitioner at every stage of this case over the past five

years: from the commencement of the Army proceed-

28

ings in 1970, through the three and one-half vears of

efforts to obtain a final resolution of the matter from

the Department of Justice, and throughout the ecur-

rent proceedings. Since his permanent move to Cali-

fornia in 1972, Professor Segal has undertaken sub-

stantial professional commitments. Though these com-

mitments will certainly be curtailed during the lengthy

trial of this serious criminal case, they cannot be wholly

abandoned. Trial in the Central District of California

will mean that Professor Segal will be within easy com-

mute distance of his offices, University and family in

San Francisco.”

By comparison, if the ease is tried in North Caro-

lina, Professor Segal will be unable to maintain direct

contact with his commitments over a 3000 mile dis-

tance. Round-trip travel from Raleigh to San Fran-

cisco requires two days.”*

The only other attorney with close familiarity

with the case is Michael J. Malley. Mr. Malley testi-

fied at length during the hearing on this matter regard-

ing his personal availability in the case. He is currently

employed by a law firm in Washington, D.C., where his

practice involves government contract representation of

corporate clients. Aside from brief experience under

the military justice system five years ago, he has never

® Among the exhibits introduced before the District Court were

a complete set of airline schedules for the alternate forums. The

schedules for Los Angeles refleet that there are almost semi-hourly,

round the clock, flights between Los Angeles and San Francisco.

The round trip air fare is approximately $45.00.

%® The airline schedules in evidence before the District Court

reflect the fact that there are no direct non-stop flights from Raleigh

to San Francisco, and that travel between the two cities is a

bothersome, time consuming process. The round trip air fare be-

tween the two cities is approximately $380.00.

29

practiced criminal law. While he has assisted in the ease

since its beginning as associate counsel, Mr. Malley ean-

not and will not accept the responsibility of chief coun-

sel. His reasons for this are of the highest order and are

entitled to be respected. He is a long-time personal

friend of the Petitioner.” His personal feelings are

very strongly involved in the case, to an extent that he

could not and should not function as chief counsel. Fur-

ther, he has no significant experience in the trial of

criminal cases, let alone a case involving a charge of

triple homicide.

Yet, Petitioner does not rely on the loss of his chief

counsel for five years as the sole basis for his allega-

tion that he will be denied the effective assistance of

counsel by the denial of his motion for transfer. The

added expenditure of trial in the distant forum will

undoubtedly inhibit the conduct of Petitioner's defense

no matter who his counsel may be.

As Petitioner has shown by unrebutted evidence be-

fore the lower court, he has substantial offers of free

legal assistance, clerical and secretarial help, and office

space in the Central District of California. All of these

services are essential elements in the conduct of the

defense of a protracted, serious criminal ease. They are

more than mere conveniences; rather, they are essen-

tial elements in the preparation for and conduct of any

important case. None of these services will be available

to the Petitioner in the Eastern District of North Caro-

lina without substantial additional expenditures. It is

7 Mr. Malley and Dr. MacDonald were roommates at Princeton

University. Mr. Malley knew the deceased wife of Dr. MacDonald.

30

tragic indeed to contemplate the financial ruin and the

short-changing of the defense of an accused who has

already once proven that he has been wrongfully and

falsely charged.

This Court has long held that the right to counsel

is not satisfied by the mere presence of an attorney at

trial. The presence of a lawyer is necessary at every

critical stage of criminal proceedings to ensure due

process. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999,

26 L.Ed. 2d 387 (1970). It has also been long recog-

nized that certain corollary rights are as important to

the defense of a case as the presence of a lawyer. An

embodiment of this principle is found in Rule 17 of

the Federal Rules of Criminal Procedure which pro-

vides for the payment of witnesses’ expenses by the

court for indigent defendants. The result of the trial

court’s ruling in this case will be either to straitjacket

Petitioner’s defense because of lack of funds, or to

place Petitioner’s defense under the stringent limits of

a court-financed indigent after his defense has bank-

rupted him.

C. Denial of Petitioner’s Motion Constitutes a Denial of

Due Process.

A full examination of the merits of this case will

demonstrate that the nature and scope of the questions

involved herein are of critical importance.

The rule that motions for transfer, in both civil and

criminal cases, should normally be left within the dis-

cretion of the trial court is a long-standing one. Ex-

perience bears out that most rulings on such motions

are not so egregious as to warrant any form of appel-

late relief. Nor are the interests at stake normally suf-

3

i

31

ficient to warrant special attention by the appellate

courts. In our increasingly complex and highly mobile

society, however, there will be an increasing number of

prosecutions brought by the Federal Government, for

reasons of convenience or otherwise, in a forum dis-

tant from the defendant’s home, residence or head-

quarters of operations.

There is the strong constitutional undercurrent

which is unsettled by a procedure which allows the

United States, the largest and most powerful federal

litigant, to demand that a person be tried in a particu-

lar forum, and although failing to introduce evidence of

its own in support of why that forum is to be given pref-

erence over the one to which a defendant is seeking

transfer, to nonetheless succeed in that demand and

defeat the need for a change of venue of a person of

ordinary means who faces trial in a lengthy criminal

case. Put in terms of this case, the United States of

America, with all its vast resources is able to insist that

Dr. Jeffrey MacDonald, a middle-class California doc-

tor with a net worth of $36,000, defend the most serious

of charges in a forum 3000 miles from his home, a forum

in which most of the witnesses do not reside, and one

where extraordinary hardships of financial ruin and

loss of chief counsel cannot help but result. To force

Petitioner to defend himself under such circumstances

is nothing short of an absolute denial of due process.

D. Application of the Platt Criteria to the Facts of This Case.

The standards for the exercise of a District Court’s

discretion on a motion to transfer were established in

the case of Platt v. Minnesota Mining & Manufactur-

ing Co., supra, 376 U.S. at 243-244, where this Court

approved an enumeration of ten factors which should

32

be weighed in balancing the inconvenience and deter-

mining the interests of justice:

location of the Petitioner

disruption of Petitioner’s affairs

expense to the parties

. location of counsel

. relative docket conditions

. relative accessibility of alternative forums

. location of possible witnesses

location of domuments and records likely to be

involved

9. location of the events in issue

10. other special elements or circumstances

PARMAR ONE

Petitioner has made an overwhelming showing of

need under these factors. And, an examination of each

of these factors reveals that there are no significant

ones which weigh against transfer. The overwhelming

balance lies in Petitioner’s favor.”

1. Relative docket conditions of the two forums.

The relative docket condition of the districts involved

in a proposed change of venue is a factor which has

been examined by appellate courts in cases involving

writs to compel or halt interdistrict transfers. In the

Platt case the Seventh Circuit pointed out that, for a

valid comparison, a proper analysis must be made of

the available statistics. Platt v. Minnesota Mining &

Manufacture, supra, 345 F.2d at 685-686. The Court

there, for example, criticized Judge Platt for using par-

tial statistics as the basis for his decision to refuse

transfer.

18 Since the first four Platt factors were discussed above, only

the application of the remaining factors will be discussed.

33

In the present case, the District Judge ignored the

proper criteria, which had been included in the memo-

randa presented by the Petitioner, and evaluated this

factor solely upon the ‘‘per-judge’’ caseload between

the two districts involved. Uncontroverted evidence

presented by Petitioner showed that the more accurate

criterion by which to compare the two districts is the

capacity of each district to handle its current criminal

caseload. The statistic which offers the most accurate

evaluation of this capacity is the length of time which

the respective districts require to move a case from ini-

tiation to trial. In the latest report of the Administra-

tive Office of the United States Courts, * the ecompara-

tive disposition time for criminal cases is: Central Dis-

trict of California: 4.3 months; Eastern District of

North Carolna: 5.0 months (filing to disposition). The

report further indicates that as a result of a 2.9% in-

crease in filings during the last year, the disposition

time in the Eastern District of North Carolina has in-

creased by .7 months, or more than 8%. In contrast,

filings in the Central District of Califoraia have

dropped since 1973 by 2.6%.

An even more crucial criterion, however, is the com-

parison of judicial manpower in the two districts.

The Central District of California has seventeen

judgeships and the Eastern District of North Carolina

has only two. The effect of an extended criminal

trial on the docket conditions in a two judge dis-

trict would be devastating. On the contrary, the Cen-

tral District of California can readily adjust its case-

load, even for the protracted three-month trial of this

19 Administrative Office of the United States Courts, Annual

Report to the Director, 1974, pp. A-56, 57; [X-108: amended

portion, pp. A-56,57; LX-108.

34

ease. The District Court judge not only ignored these

more reliable criteria, but also relied upon figures

which were prepared at a time when there were three

judges in the Eastern District of North Carolina,

neither mentioning nor giving any consideration to

the fact that one of his colleagues, Chief Judge Butler,

was to retire on July 1, 1975, without replacement.

Once this information is considered in the balance, it

is obvious that the Petitioner’s trial will wreak havoc

on the trial calendar of the Eastern District of North

Carolina.”

2. Accessibility of place of trial: location of documents,

records and witnesses.

The facts and evidence demonstrating the relative

inaccessibility of the Raleigh area when compared with

the Los Angeles metropolitan area are a matter of rec-

ord * and were uncontroverted in the District Court.

Since it is wholly unsupported by the evidence and de-

livered without discussion, Petitioner is unable to de-

termine the basis, if any, for the conclusion of the

“In footnote 2 of his memorandum opinion, the District Judge

explains that ‘‘as a matter of courtesy’’ he communicated with

Judge Hill, one of the judges of the Central District of California.

The District Judge thereby received ex parte evidence out of the

presence of the Petitioner and his counsel. This ‘‘evidence’’, which

was apparently given heavy weight by the District Judge, was not

taken under oath, not subject to cross-examination, was self-serving

and contradicted the clear weight of the evidence presented in

Court by Petitioner, Petitioner strenuously objects to such an

eyregrious violation of his constitutional rights.

*t According to the figures provided by the Federal Aviation

Agency Statistical Handbook of Aviation, Calendar Year 1974,

there are more than 15 times as many passenger arrivals into Los

Angeles as into the Raleigh-Durham airport. Table 4.7 of the

Handbook also shows that the number of airplane departures for

Los Angeles was approximately ten times that for Raleigh-Durham.

4

see Sy

Splat.

35

District Judge that Raleigh is more accessible to the

parties and witnesses than Los Angeles.

The record reveals that within the immediate Los

Angeles metropolitan area, there are four major air-

ports. The combined traffic of these four airports is

ten times that of the Raleigh-Durham airport.” The

difference in accessibility of the two districts by air

transportation was further demonstrated to the Dis-

trict Judge by the introduction of the official airline

service schedules for each area. In quantity alone,

there were only four pages of scheduled flights for the

Raleigh-Durham area and no less than forty pages of

scheduled flights into the Los Angeles metropolitan

area.

In considering the convenience of the parties in this

case, it must be noted that the primary Government

attorneys are assigned to the Department of Justice

in Washington, D.C. and will be attending the trial

from Washington, D.C. There is also one assistant

United States attorney who is assigned to the case from

the office of the United States Attorney for the East-

ern District of North Carolina, James Stroud. Stroud,

and Petitioner’s local counsel, Durant Williams

Escott, are the only attorneys involved in this case who

reside in North Carolina.

The inconvenience whicl will be incurred by the

Petitioner if the trial of this case is held in North

Carolina is discussed at length above. Likewise, there

is a lengthy discussion in an earlier section of the ex-

treme inconvenience which trial in North Carolina will

cause to Professor Segal.

22 Thid,

36

Even the conclusion of the District Judge that trial

in Raleigh would be more convenient to Mr. Malley

in Washington, D.C. than trial in Los Angeles, is not

supported by the facts in the record. Mr. Malley testi-

fied, without contradiction, and the record was supple-

mented by tables of airline schedules, that because of

the infrequency of airline service, especially non-stop

flights, between Washington, D.C. and Raleigh, that

in fact it was more convenient for an attorney to fly

from Washington, D.C. to Los Angeles.** The one to

two hours flying time to Raleigh at inconvenient and

infrequent times made the frequent five-hour non-stop

flights to Los Angeles more convenient in general and

in particular to him.

If Los Angeles is, as the evidence shows, the more

accessible forum, the factors regarding the location of

witnesses, documents and records are easily placed into

perspective. Only a very small percentage of the known

witnesses in the case are still residing within the East-

ern District of North Carolina. Most of the innumer-

*3 Examination of the airline schedules submitted into evidence

reveals the following: From Washington to Raeigh there are only

5 direct, daily flights, each approximately an hour in length. The

earliest daily flight to arrive in Raleigh lands at 9:35 a.m. The

latest to leave Washington departs at 6:30 p.m. One of these five

flights leaves not from Washington but from Baltimore, nearly

forty miles from the capital.

On the other hand, flying from Washington to Los Angeles, there

are 12 daily direct, non-stop flights and nearly 100 listed connect-

ing flights. There are flights departing Washington from all Wash-

ington area airports at all hours of the day and night. It is sub-

stantially easier for a busy attorney to schedule an appearance

in Los Angeles folowing a full business day in Washington than

it is for him to make the one available afternoon flight to Raleigh.

The conclusion is inescapable that Raleigh is less accessible, even

to a near neighbor such as the nation’s capital, than is Los Angeles.

37

able fact witnesses connected to this case were in the

Army at the time the murders were committed, and are

now scattered all over the United States and in seven

foreign countries. Essential character witnesses whom

the Petitioner intends to call reside in the Los Angeles

area,

Regarding the former Army personnel who have

been transferred or discharged, the Los Angeles area

is a highly accessible forum from all foreign countries

and all parts of the United States. The Southern Cali-

fornia area is the home of several major military air-

ports * to which military witnesses could be flown with

relative ease for the Government. Raleigh, on the other

hand, apparently has no scheduled direct flights from

anywhere outside the continental United States, and

only one nearby military airport, Pope Air Force Base.

In a case such as this one, ease of scheduling is critical

in minimizing the expense of transporting and lodging

witnesses.

Of particular importance here are the several char-

acter witnesses whom the Petitioner anticipates calling

from the Los Angeles area. These witnesses are all pro-

fessional persons with heavy scheduling commitments,

who may be unable to testify if the trial is held in a

distant forum requiring two or three days for their

brief appearance. Yet the testimony of these witnesses

is vital to the defense of the charges lodged against

the Petitioner. To require such important character

evidence in a serious case to be handled by deposition,

as suggested by the District Judge, amounts to a cal-

lous disregard for Petitioner’s right to a fair trial.

** Norton Air Force Base and North Island Naval Air Station

both regularly receive large numbers of overseas flights from all

parts of the world.

38

Regarding the documentary evidence, the Govern-

ment has conceded that all its complete documents are F

contained in only two and one-half filing cabinet draw- ii

ers and that there will be little documentary evidence My

adduced at trial. Petitioner’s voluminous documents

and files are located primarily on the West Coast (in

Los Angeles and San Francisco). Petitioner further

anticipates requests will be made for documents now

located in such various places as Washington, D.C. and

St. Louis, Missouri. The accessibility of the Los Ange-

les area applies equally to the interstate transportation

of documents as it does to the transportation of wit-

nesses.

3. Special circumstances requiring consideration.

As was set forth in the statement of the case earlier ;

in this Petition, the Petitioner has previously endured

the emotional and financial, if not the legal, equivalent

of a full trial on these charges. The Petitioner was

formally charged with the murders of his wife and

daughters and underwent a formal pre-trial investiga-

tion convened under Article 32 of the Uniform Code

of Military Justice, throughout the proceedings. The

Article 32 proceeding against the Petitioner was the ‘

longest in the 27-year history of the Uniform Code.

Approximately 60 witnesses, including the Petitioner,

testified in over 4 weeks of hearings. The expense to

the Petitioner, despite the fact that he was provided

with free office space, telephones, and other facilities,

and some free legal assistance, was over $50,000. The

Petitioner was confined a period of nearly five months. ‘

Ne AMES AIG AS pie uae We le

At the conclusion of the Article 32 hearings, the

charges against the Petitioner were determined by the

39

investigating officer to be ‘not true’? and were dis-

missed.

As though one trial were not enough, however, the De-

partment of Justice, five years later, has recommended

the prosecution of this case. Although following dis-

missal of the charges against him, pursuant to the

Article 32 proceeding, Petitioner continually sought

through personal visits and correspondence to obtain

a final disposition of the matter, the Government failed

to so act. The delay throughout this period has been

solely attributable to inaction by the Government.

Despite the fact that high Justice Department offi-

cials had twice stated in 1974 that there was no evi-

dence to warrant further prosecution, the Petitioner

was indicted on January 24, 1975, just a few weeks be-

fore the statute of limitations expired. The indictment

was brought solely to avoid threatened accusations of

“cover-up”? against the Department of Justice by

Alfred Kassab, the step-father of the Petitioner’s de-

ceased wife, who, though he previously testified as a

character witness for the Petitioner at the Article 32

investigation, had conceived an irrational hatred for

the Petitioner. Motivated by this hatred, he filed

“‘charges’’ with the Chief Judge of the Eastern Dis-

trict of North Carolina.

Though these “‘charges”’ contained no new evidence,”

the Justice Department suddenly reversed its previous

position and convened a grand jury. The Department

of Justice officials involved in the disposition of this

case determined that their personal job security might

be jeopardized by the Kassab accusations. It should be

*° In fact, no new evidence has been produced since 1971.

40

noted that at least one of the officials involved in the

Justice Department’s decision was also a key figure

who testified at length before the Senate Watergate

Committee. It is not difficult to understand the tremen-

dous potential for political pressure which could be

generated by someone such as Mr. Kassab in a case

which has received highly sensational and widespread

press coverage for five years.

The burden imposed by the Government’s needless

and negligent delay in this case is too heavy for any

court to ask Petitioner to bear. The defense of these

charges will substantially impair the financial status

of the Petitioner wherever the trial is held. But, trial

in the distant and inconvenient forum of the Eastern

District of North Carolina will bankrupt the Petition-

er. Without question, this additional burden to Peti-

tioner has been occasioned by the Government’s five-

year failure to act in this case. It is too much to ask

the Petitioner to bear the cost of defending himself

twice against charges of first degree murder and also

to force upon him the additional burdens of the case

which are solely attributable to the unconscionable

Government delay in proceeding with this case. Yet, as

is seen from a reading of this Petition, no considera-

tion or weight whatsoever was given either to these

very important special elements of the case, or to any

of the other compelling and uncontroverted reasons

advanced by Petitioner. Such abuse of discretion

compels this Court to act and to grant the relief re-

quested.

41

CONCLUSION

For all of the foregoing reasons, the Petition for

Writ of Certiorari should be granted.

Respectfully submitted,

BERNARD L. SEGAL

Suite 220

536 Mission Street

San Francisco, California 94105

MicHAEL J. MALLEY

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Petitioner

Of Counsel:

DvuRANT WILLIAMS Escort

412 Law Building

Charlotte, North Carolina

Dated: July 31, 1975.