Appendix — Gerstein v. Pugh
Supreme Court brief1975
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Text
5 1974
_
JOMAGL ROBAK, JR.OL
| a the
Supreme Cou
of the
Gnited States
OCTOBER TERM, 1973
NO. 73-477
RICHARD E. GERSTEIN, State Attorney for the
Eleventh Judicial Circuit in and for
Dade County, Florida,
Petitioner,
v8.
ROBERT PUGH and NATHANIEL HENDERSON,
on their own behalf and on behalf of all others
—
| an
THOMAS TURNER and GARY FAULK, on their
own behalf and on behalf of all others
similarly situated,
Respondents,
Appendix on Petitio, for Writ of Certiorari to
__. United-States Court of Appeals for the
Fifth Circuit
Assistant State Attorney for the
——————_—_————————e eee
MIAMI REVIEW — 371-4883 — 877-721
LMT LP CRIM 6 HS yt Rinse A
I
ADDENDUM TO DOCKET ENTRIES
The following though not appearing in the docket
entries in this case do constitute part of the official file
of the United States Court of area" for the Fifth
Circuit:
June 1, 1973—Letter from Fifth Cir¢euit Court of
Appeals To All Counsel of Record
June 8, 1973—Joint Memorandum In Response To
Court’s Letter of June 1, 1973.
September 18, 1973—Order of Fifth Circuit Court
of Appeals granting motion for stay of mandate.
ba Ag ces tee
Sgisth gY pled dl TRAINS, Sia Sa TERE kis SA dalla ATA
ed a eT ere en ee ee
Date
1971
Mar.
22
22
22
22
22
25
25
25
25
25
25
25
25
Il
DOCKET ENTRIES
Proceedings
Complaint.
Motion to Proceed in Forma Pauperis by
Robert Pugh.
Motion to Proceed in Forma Pauperis by
Nathaniel Henderson.
ORDER: Motion to proceed in forma
pauperis by Nathaniel Henderson is
GRANTED. (3/22/71-JLK)
ORDER: Motion to proceed in forma pau-
peris by Robert Pugh is GRANTED.
(3/22/71-J LK)
Summons ret’d exec. 3/23/71 as to Rocky
Pomerance.
Summons ret’d exec. 3/23/71 as to Ralph
Ferguson, Justice of the Peace.
Summons ret’d exec. 3/23/71 as to Morton -
S. Perry, Judge, S.C. Court.
Summons ret’d exec. 3/22/71 as to Ber-
nard Garmire.
Summons ret’d exec. 3/23/71 as to E. Wil-
son Purdy.
Summons ret’d exec. 3/23/71 as to Jason
Berkman, Justice of the Peace.
Summons ret’d exec. 3/23/71 as to Sidney
Segall, Judge, S.C. Court.
Summons ret’d exec. 3/24/71 as to Charles
Snowden, Justice of Peace.
Pages
1- 19
20- Zi
22- 23
24- 25
26- 27
28- 29
30- 31
32- 33
34- 35
36- 37
38- 39
40- 41
42- 43
ee eee
III
DOCKET ENTRIES (cont.)
Date Proceedings Pages
25 Summons ret’d exec. 3/23/71 as to Richard
E. Gerstein. 44- 45
25 Summons ret’d exec. 3/20/71 as to David
Maynard, Chief of Police of Hialeah. 46- 47
25 Summons ret’d etxec. 3/23/71 as to James
Rainwater, Judge, S.C. Court 48- 49
29 Summons ret’d exec. 3/24/71 as to Sylves-
ter Adair, J.P. 50- 51
29 Summons ret’d exec. 3/25/71 as to Ruth
Sutton, J.P. . 52- 53
Apr.
6 Answer of Deft. Richard E. Gerstein with
Motion for Summary Judgment with
Memo of Law and Notice of Hearing
5/10/71 at 2. 54- 67
7 Answer of Bernard E. Garmire, Chief of
Police, City of Miami. 68- 69
9 Notice of taking depositions of E. Wilson
Purdy, Bernard Garmire, Rocky Pomer-
ance and David Maynard. 70- 72
12 Motion of Thomas Turner and Gary Faulk
to Intervene as Pitfs. 73- 75
12 Supporting Memo. 76- 77
12 Motion of Thomas Turner to Proceed in
Forma Pauperis. 78- 79
12 Motion of Gary Faulk to Proceed in Forma
Pauperis. 80- 81
12 Notice of Hearing on Motions to Intervene
and Proceed in Forma Pauperis.
Diiticsisss ede Saisie
Date
12
12
12
12
12
12
12
12
12
12
14
15
14
16
21
22
27
27
IV
DOCKET ENTRIES (cont.)
Proceedings
Complaint of Intervening Pltfs.
Motion of Deft. Purdy to Dismiss.
Supporting Memo.
Notice of Hearing on Motion te Dismiss
5/10/71 @ 2 p.m. e
Motions of Defts. RAINWATER, SUT-
TON for Summary Judgment.
Supporting Memo.
Notice of Hearing 5/10/71 @ 2 p.m.
Answer of Defts. Rainwater and Sutton.
Answer of Deft. Sidney Segall.
Answer of Deft. Pomerance.
Answer, by deft. Morton L. Perry.
Motion of Dade County Bar Association
for Leave to appear as Amicus Curiae,
and Notice of hearing for 4/26/71 at
2:00 ,
Answer of Deft. David Maynard.
Amended Answer of Deft. Sidney L. Segall.
Letter to Judge King from Richard E.
Gerstein.
ORDER: Granting Leave to Appear as
Amicus Curiae. (4/21/71-JLK)
Motion Pltf for Partial Summary Judg-
ment.
Memo in Opposition to Deft. Gerstein’s
Motion for Summary Judgment and in
support of Pitfs’ Motion for Partial
Summary Judgment.
Pages
82- 94
95
96-103
104-107
108-114
115-117
118-119
120-122
123-125
126-128
129-130-
131-132
133-134
135
136-137
138-147
LO SARE RIT NORII SLI s SCN NE
Vv
DOCKET ENTRIES (cont.)
Date Proceedings Pages
27 Memoto Pltf in Opposition to Deft. Purdy’s
Motion to Dismiss. 148-149
27 Notice of hearing for 5/10/71 at 2:00
28 Motion of Deft. Rocky Pomerance for Judg-
ment on the Pleadings. — 150
28 Memo in Support of Motion. (Certificate)
of Service Attached) 151-155
28 Notice of hearing for 5/10/71 at 2:00.
4 Depositions of David Maynard, Theodore
Schempp and A.J. McLaughlin. 156-198
29 Motion of deft. Bernard Garmire for Judg-
ment on the Pleadings. . 199
29 Memo in support of Motion for Judgment
on the Pleadings for the City of Miami
Florida, filed by deft. Bernard Garmire. 200
29 Memo of Law, filed by City of Miami
Beach. 201-203
29 Certificate of Service. 204-205
29 Notice of hearing for 5/10/71 at 2:00.
5 Pltfs’ Memo Opposing Motion for Judg-
ment filed by Defts. Fomerance and
Garmire. 206-210
6 Deposition of E. Wilson Purdy. 211-222
7 Certificate of Service, by defts. 223
%
10 . Notice of add’] Authority, filed by pitfs. 224-225
11 Order resetting time for rehearing on
5/10/71 at 4:30 226
11 Memo of Amicus Curiae, Dade County Bar
Association. 227-239
Se ah 4 Kya
Date
VI
DOCKET ENTRIES (cont.)
Proceedings
12 Memo of Amicus Curiae, Dade County Bar
Association.
12 Notice of Add’l Authority, filed by deft.,
E. Wilson Purdy.
13 Letter from Peter L. Nimkoff to Judge
King re memorandum.
14 ORDER: 1 Deft. Gerstein’s Motion for
2.
3.
Summary Judgment DENIED.
Deft. Puruy’s Motion to Dismiss
DENIED.
Motions of Defts. Garmire, Pomerance
for Judgment on Pleadings DENIED.
. Motion of Pltfs Turner, Faulk
GRANTED. Their motion for forma
pauperis GRANTED.
. Pitfs’ Motion for partial summary
judgment against Deft Gerstein,
taken under advisement. '
. Motion of counsel for Defts. Sutton
and Rainwater to allow answer, mo-
tion for summary judgment and memo
stand as pleadings for Deft. Adair
GRANTED.
. Motion od Deft. Gerstein to allow
answer, Motion for summary Judg-
ment to apply to intervenors,
GRANTED. (5/13/71-JLK)
17 Affidavit of Sylvester P. Adair, Dade Jus-
tice of the Peace.
Pages
240-252
253-254
255
256-257
258
PES ee ED
vil
DOCKET ENTRIES (cont. )
Date Proceedings
14 Order setting cause for final hearing and
disposition on 6 14 71 at 10:30, with
directions by the Court. (5 14/71-JLK)
28 Answer, filed by E. Wilson Purdy.
June
1 Notice of taking deposition of James Rea-
gan, Jr., Robert: Morgan, Jack Sand-
strom, Judge James Rainwater, Judge
Ruth Sutton and Judge Sylvester Adair.
8 Deposition of Hon. James S. RAIN-
WATER.
Deposition of J ack SANDSTROM.
Deposition of Robert E. MORGAN..
Deposition of J AMES REAGAN, JR. (See
next entry for exhibit)
9 Letter from Legal Services Program to the
Clerk enclosing ‘Caseload Report for
the year ended 12 31 71”, to be filed as
an exhibit to the deposition of A. J.
Regan, Jr. (Docket Entry No. 73).
9 Pltfs’ Supplemental Memo.
10 Memo of Amicus Curiae, Dade County Bar
Association.
14 Notice of taking deposition of Judge Ruth
Sutton.
22 Notice of taking depositions of Morton L.
Perry, Judge, and Sidney L. Segall,
Judge.
co oO 7
Pages
259-260
261-264
265-267
268-304
305-314
315-327
328-352
353-354
355-366
367-378
379-381
382-384
i ae tile aaa
LRM ALLE LLL LLL LLL LILLE Rewer
Date
22
15
Sept.
VIitI
DOCKET ENTRIES (cont.)
Proceedings
Deposition of Deft. Ruth L. Sutton taken
by Pitfs. 6/15/71.
Deposition of Sidney L. Segall.
Motion for Separated Trials and Transfer
or Parties and Memo by counsel.
Notice of Additional .Authority filed by
pltfs.
Deposition of Morton L. Perry.
Motion for Separate Trials and Transfer
of Parties and Memo, by Deft. Charles
Snowden.
Motion for Partial Summary eens
filed by Pltfs.
Memo in support of Motion for Partial
Summary Judgment.
Reply Memorandum, filed by defendants.
OPINION & FINAL JUDGMENT: 1. This
is a valid class action. 2. Named pltfs.
shall be given a preliminary hearing to
determine probable cause for their ar-
rest by a committing magistrate unless
their cases have been otherwise conclud-
ed. 3. Defts., with 60 days of date hereof,
Pages
385-448
423-448
449-450
452-453
454-468
469-470
471-472
473-483
484-487
Date
Nov.
DOCKET ENTRIES (cont.)
Proceedings
shall submit to the Court a plan provid-
ing for preliminary hearings in all cases
wherein prosecution is to be upon direct
information. The preliminary hearing
shall be within a reasonable time of the
arrest. 4. Subsequent to final hearing
certain motions for summary judgment,
severance & transfer of party defts. to
party pltf. were filed. These motions are
hereby denied. 5. Court retains jurisdic-
tion for a consideration ef the plan & en-
forcement of the provisions of this final
judgment. (10/12/71-JLK) R106
10 (Richard E. Gerstein, State Atty. for the
Eleventh Judicial Circuit, Dade County,
Florida, Deft.) Petition for rehearing
and/or clarification andsupporting
memo of law.
12 Notice of Appeal filed by Pltfs. (The por-
tion appealed includes only two para-
graphs on page fourteen of the Opinion
and Final Judgment) Copies mld. Judge
Ruth L. Sutton; Duke Winsor and James
Jorgensen; Barry Richard, Esq.; Judge
Sidney Segall; Judge Ralph B. Ferguson,
Jr.; Judge Sylvester P. Adair; Alan Dia-
mond, Esq.; Judge Charles Snowden;
Judge Jason Berkman; Rocky Pomerance
Pages
488-502
503-510
ne ee CW RON Me eae
Ry
Biren:
14
Dec.
13
14
16
21
21
22
DOCKET ENTRIES (cont.)
Proceedings
Chief of Police; Judge James Rainwater;
Alan H. Rothstein, City Atty.; Bernard
E. Garmire; Alden Berry and Judge
Morton S. Perry, and U.S. Court of Ap-
peals; Rogow.
Response To Petition For Re-Hearing or
Clarification, by Pltfs.
Defendant E. Wilson Purdy’s Plan provid-
ing for Preliminary Hearings.
Adoption of E. Wilson Purdy’s Plan pro-
viding for Preliminary hearings. (Deft.).
ORDER: that a hearing to consider plan
submitted by Deft., E. Wilson Purdy, set
for Tues. 12-21-71, at 10:00 AM, before
Judge King. (12-15-71-JLK).
Pitf’s Response to Plan of E. Wilson Purdy.
Response to Deft. E. Wilson Purdy’s Plan
providing for Preliminary hearings.
(Deft. James Rainwater.)
ORDER: This cause came on for consider-
ation upon the Court’s own motion, sua
sponte, to extend the time for the trans-
mittal by the clerk of the court of the
record in this cause for purposes of ap-
peal. In as much as this court has need
for the use of said record for purposes
of examining the proposed committing
magistrate system as submitted to the
Pages
511-512
513-518
519-529
530-531
532
533-537
538-540
er
§ DOCKET ENTRIES (cont.) 4
Date Proceedings Pages
court by the Defts. in this cause, it is
therefore, ORDERED that the time for
transmitting the record on appeal is ex-
tended to February 1, 1972. (12-/22/71-
JLK) Certified copy mailed to 1J.S. Court
of Appeals. 541
1972
Jan.
25 Order Adopting Plan to Provide Prelimi-
nary Hearings. (See Order for details.
(1/25/72-J LEK) 542-549
CLERK’S CERTIFICATE. 550
Certified to be a true and correct copy of the original.
U.S. District Court
Joseph I. Bogart, Clerk
Southern Dist. of Fla.
By /s/ Ruth M. Hood
~~ Deputy Clerk
Date: 1-20-72
PNAS CLL OLN LID ANG ITN SS IONE IE
AE CONC Pe ERNE ARORA, OT in OAS Maar eals Mine
WE
[1]
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA.
CASE NO. 71-448-Civ-JLK
ROBERT PUGH and NATHANIEL HENDERSON,
on their own behalf and on behalf
of all others similarly situated,
Plaintiffs,
vs.
JAMES RAINWATER, MORTON S&S. PERRY, SIDNEY
SEGALL, Judges of the Small Claims Court in and
for Dade County, Florida; RICHARD E. GER-
STEIN, State Attorney for the Eleventh Judicial
Circuit in and for Dade County, Florida; RUTH
“SUTTON, CHARLES SNOWDEN, JASON BERK-
MAN, RALPH FERGUSON, and SYLVESTER
ADAIR, Justices of the Peace in and for Dade
County, Florida; E. WILSON PURDY, Sheriff of
Dade County, Florida; BERNARD E. GARMIRE,
Chief of Police of the City of Miami, Florida; DAVID
MAYNARD, Chief of Police of the City of Hialeah,
Florida; ROCKY POMERANCE, Chief of Police of
the City of Miami Beach, Florida,
Defendants.
COMPLAINT
[Filed March 22, 1971]
SPIGA TOA PIN AYER Se Lk OE RS
| Aye sche iNT. Heid FO
2
JURISDICTION
(1) This is an action brought by the plaintiffs on
behalf of themselves and all others similarly situated for
declaratory judgment and for preliminary and permanent
injunction as authorized by Title 42 U.S.C. §1983 and 28
U.S.C. $$2201 and 2202. The jurisdiction of this Court
is invoked un.der Title 28 U.S.C. §1343(3) and (4).
(2) The plaintiffs and all others similarly situated
seek to secure the rights, privileges and immunities estab-
lished by the Fourth Amendment and the Due Process and
Equal Protection Clauses of the Fourteenth Amendment
of [2] the Constitution of the United States. The plaintiffs
and all others similarly situated have been deprived of
such rights, privileges and immunities by: (1) the various
x
defendants’ refusal to provide preliminary hearings to*®%
judicially determine probable cause for incarcerating plaing *’
tiffs; and (2) the arbitrary and irratione! procedures of
defendants PURDY, GARMIRE, MAYNARD and POM-
ERANCE, and their employees which creates two classifi-
cations of defendants—i.e., those who receive a preliminary
hearing in Justice of Peace Courts and those who are de-
nied such a hearing altogether; and (3) the defendaut
judges’ imposition of monetary bail upon indigents as a
condition of release from custody pending trial.
PARTIES
(3) Plaintiff, ROBERT PUGH, is a male citizen of
the United States and of the State of Florida. He is pres-
ently incarcerated in the Dade County Jail charged with
robbery, carrying a concealed weapon and possession of a
firearm during the commission of a felony, and is await-
2 NPT A ght Oe Be
3
ing trial in the Criminal Court of Record in and for Dade
County, Florida. Ne bond has been set in his case pursuant
to F.S.A. Const. Art., 1, $14 since the main pending charge
is robbery.
(4) Plaintiff, NATHANIEL HENDERSON, is a
male citizen ef the United States and of the State of Flor-
ida. He is presently incarcerated in the Dade County Jail
charged with breaking and entering, possession of narcot-
ics, resisting arrest with violence and assault on a police
officer, and is awaiting trial in the Criminal Court of
Record in and for Dade County, Florida. Plaintiff remains ©
incarcerated solely because he is financially unable to post
the Four thousand Five hundred Dollar ($4,500.) bond
set in his case.
[3] (5) The plaintiffs are members of a class com-
posed of all persons arrested by law enforcement officers
in Dade County, Florida, who are being detained in the
Dade County Jail solely upon a direct information filed
by the State Attorney for the Eleventh Judicial Circuit
in and for Dade County, Florida, and who as a result
have not been provided with: (1) an opportunity to be
heard; (2) an opportunity to confront the witnesses against
them; (3) an opportunity to have probable cause (if any
exists) established by a judicial officer of the State of
Florida. The persons in the class are so numerous that
joinder of all persons is impractical; there are questions
of law and fact common to the class; the claims of ine
representative parties are typical of the claims of “he
class; and the representative parties will fairly and ade-
quately protect the interests of the class.
(6) Plaintiff HENDERSON also represents a class
of persons who are incarcerated in the Dade County Jail
solely because of their financial inability to post monetary
bail as a condition of release pending trial. The persons
in this class are so numerous that joinder of all persons
is impractical; there are questions of law and fact com-
mon to the class; the claims of the representative party is
typical of the claims of the class; and the representative
party will fairly and adequately protect the interests of
the class.
(7) Defendant RICHARD E. GERSTEIN, is the
State Attorney for the Eleventh Judicial Circuit in and
for Dade County, Florida. In such capacity he is charged
with the authority and responsibility pursuant to Florida
Statutes, Chapters 27 and 906 for filing informations
against persons alleged to have committed criminal acts.
[4] (8) Defendants RUTH SUTTON, CHARLES
SNOWDEN, JASON BERKMAN, RALPH FERGUSON
and SYLVESTER ADAIR are Justices of the Peace in
and for Dade County, Florida and in such capacity have
the authority and responsibility pursuant to F.S.A. §901.01
and Rule 1.122 of the Florida Rules of Criminal Procedure
to. provide preliminary hearings for defendants accused
of crimes in Dade County, Florida.
(9) Defendants JAMES RAINWATER, MORTON
S. PERRY, and SIDNEY SEGALL are Judges of the
Small Claims Court in and for Dade County, Florida, and
in such capacity are empowered pursuant to F.S.A. §901.01
and Rule 1.122 of the Florida Rules of Criminal Procedure
to provide preliminary hearings for defendants accused
of crimes in Dade County, Florida.
$i Se Nn ee RA SRE RO UANN MO:Y 2 ” —
(10) Defendant E. WILSON PURDY is the Direc-
tor of the Public Safety Department, Dade County, Flor-
ida. In such capacity defendant PURDY, his agents, serv-
ants and employees enforce the statutes of the State of
Florida and’.are responsible for arresting persons who
allegedly have committed violations of said statutes.
(11) Defendant BERNARD E. GARMIRE is the
Chief of Police of the City of Miami Police Department
and in such capacity defendant GARMIRE, his agents,
servants and employees enforce the statutes of the State
of Florida and are responsible for arresting persons who
allegedly have committed violations of said statutes.
(12) Defendant DAVID MAYNARD is the Chief
of Police of the City of Hialeah, Florida and in such ca-
pacity defendant MAYNARD, his agents, servants and
employees enforce the statutes of the State of Florida and
are responsible for arresting persons who allegedly have
committed violations of said statutes.
(13) Defendant ROCKY POMERANCE is the Chief
of Police of the City of Miami Beach, Florida and in such
capacity defendant [5] POMERANCE, his agents, serv-
ants and employees enforce the statutes of the State of
Florida and are responsible for arresting persons who
allegedly have committed violations of said statutes.
(14) At all times hereinafter mentioned, the acts
complained of were carried out by the above named defend-
ants, their agents, servants and employees in their official
capacities under color of state law, regulation, custom and
usage.
| a Jap ua ORGS t ed SES ‘ste Ae
6
FACTS
(15) Plaintiff ROBERT PUGH, was arrested on
March 3, 1971 and charge with robbery, carrying a con-
cealed weapon and possessicn of a firearm during the
commission of a felony. On March 4, 1971 he was pre-
sented to defendant SNOWDEN, who was sitting solely
for the purpose of setting bond. Because plaintiff PUGH
was charged with robbery, no bond was set pursuant to
F.S.A. Const. Art., 1, § 14. At the bond hearing on March
4, 1971, no evidence was presented against the plaintiff
to judicially determine probable cause for detaining the
plaintiff.
(16) Thereafter an information charging plaintiff
PUGH with robbery and other offenses was filed by de-
fendant GERSTEIN with the Clerk of the Criminal Court
of Record in and for Dade County, Florida. A copy of said
information is attached hereto as Plaintiffs’ Exhibit “A”.
Plaintiff was not present, nor given an opportunity to be
heard, nor to cross examine, nor to confront the witnesses
against him upon whose testimony the attached informa-
tion was issued.
(17) Plaintiff NATHANIEL HENDERSON was
arrested on March 2, 1971, and charged with breaking and
entering, possession of narcotics, resisting arrest with vio-
lence and assault on a police officer. On March 3, 1971,
he was presented to defendant [6] BERKMAN, who was
sitting solely for the purpose of setting bond. Bond was
set in the amount of $4,500. At the bond hearing on
March 3, 1971, no evidence was presented against the
plaintiff to judicially determine probable cause for detain-
ing the plaintiff.
(18) Thereafter an information charging plaintiff
HENDERSON with breaking and entering and other of-
fenses was filed by defendant GERSTEIN with the Clerk
of the Criminal Court of Record in and for Dade County,
Florida. A copy of said information is attached hereto as
Plaintiffs’ Exhibit “B”. Plaintiff was not present, nor
given an opportunity to be heard, nor to cross examine,
nor to confront the witnesses against him upon whv-<6
testimony the attached information was issued.
THE POLICIES AND PRACTICES COMPLAINED OF
COUNT I.
(19) It is the policy, pattern and practice of defend-
ants PURDY, GARMIRE, MAYNARD and POMER-
ANCE, and their agents, servants and employees to fail
to present arrested persons before judges without unneces-
sary delay for the purpose of establishing probable cause
at a preliminary hearing for the arrest of said defendant.
(20) It isthe policy and practice of defendant GER-
STEIN and his agents, servants and employees to file
direct informations based upon testimony provided to an
assistant state attorney by a police officer. Furthermore,
it is the policy and practice of defendant GERSTEIN, his
agents, servants and employees to refuse to provide a de-
fendant in custody by virtue of a directly filed informatio:
an opportunity for a binding preliminary hearing to deter-
mine probable cause for his incarceration.
[7] (21) It is the policy and practice of defend-
ants RUTH SUTTON, CHARLES SNOWDEN, JASON
BERKMAN, RALPH FERGUSON, SYLVESTER
dy
Pitt ee. ects
ADAIR, JAMES: RAINWATER, MORTON S. PERRY,
and SIDNEY SEGALL to refuse to provide a preliminary
hearing to persons incarcerated in the Dade County Jail
by virtue of a direct information filed by defendant
GERSTEIN.
(22) The above described actiors of the named de-
fendants results in the incarceration of plaintiffs and
members of their class solely upon a direct information
filed. by the state attorney and deprives said plaintiffs of
their liberty without an opportunity to be heard, to con-
front the witnesses against them, or to have a judicial
determination of probable cause made, all of which is in
violation of the Fourth Amendment and the Due Process
Clause of the Fourteenth Amendment to the Constitution
of the United States.
COUNT II.
(23) Plaintiffs repeat and reallege the facts set
forth in paragraphs 1 through 22 above.
(24) Defendants PURDY, GARMIRE, MAYNARD
and POMERANCE, through their agents, servants and
employees file charges upon persons they arrest with
either a justice of the peace, in Dade County, Florida, or
with the defendant, State Attorney GERSTEIN.
(25) If said charges are filed with the defendant
State Attorney, then as set forth in Count I, the plaintiff
is deprived of his right to a hearing based upon the direct
information filed by the defendant GERSTEIN.
(26) If however, defendants PURDY, GARMIRE,
MAYNARD and POMERANCE, through their agents,
servants and employees choc3e to file the charges with a
justice of the peace, then a pre- [8] liminary hearing will
be accorded to the arrested person in due course.
(27) Defendants PURDY, GARMIRE, MAYNARD
and POMERANCE, ana their employees have unfettered
discretion in choosing the authorities with whom they will
file charges. No standards or rules guide said decisions.
(28) The actions of defendants PURDY, GARMIRE,
MAYNARD and POMERANCE and their agents. serv-
ants and employees thereby creates two classes of arrested
persons: (1) persons who are denied preliminary hearings
because the arresting officer ‘1as filed. charges directly
with the State Attorney’s Office, thereby causing an in-
formation to issue, and (2) persons who are granted pre-
liminary hearings because the arresting officer has filed
charges with one of the J ustices of Peace of Dade County,
Florida.
(29) The creation of these two classes of arrested
persons is arbitrary, unreasonable and capricious. The
plaintiffs and members of their class, who are being denied
preliminary hearings, are thus denied equal protection of
the laws in violation of the Fourteenth Amendment of the
Constitution of the United States as a result of the irra-
tional, unreasonable, arbitrary and capricious actions of
the agents of defendants PURDY, GARMIRE, MAY-
NARD and POMERANCE.
10
COUNT III.
(30) Plaintiff HENDERSON repeats and realleges
paragraphs 1, 2, 4, 6, 8, 9, 14 and 17 set forth above.
(31) It is the policy, pattern and practice of defend-
ant judges RAINWATER, PERRY, SEGALL, SNOW-
DEN, SUTTON, FERGUSON, ADAIR and BERKMAN
to set monetary bail upon persons presented before them
as a condition of release pending trial.
[9] (32 Plaintiff HENDERSON has remaiied in-
carcerated since March 3, 1971, solely because of his finan-
cial inability to post the Four thousand Five hundred
Dollar ($4500.) bail set to assure his future appearance.
(33) The actions of the defendant judges creates
two classes of arrested persons: (1) persons who are finan-
cially able to post the monetary bail bonds set in their
respective cases and thus secure their release from jail,
and (2) persons who are financially unable to post the
monetary bail bonds set in their respective cases and who
must remain in ja‘! solely because of their poverty.
(34) The creation of these two classes of arrested
persons is arbitrary, unreasonable and capricious. It dis-
criminates against poor persons solely because of their
poverty without any rational basis. Plaintiff HENDER-
SON. and members of his class are thus denied equal pro-
tection of the laws in violation of the Equal Protection
Clause of the Fourteenth Amendment to the Constitution
of the United States. "
Bais. Oita
IAEA NTC rn
ll
NATURE OF RELIEF
(35) There is between the parties and actual con-
troversy as herein set forth. The plaintiffs and the classes
they represent, are suffering irreparable injury and are
threatened with irreparable injury in the future by reason
of the acts herein complained of. The plaintiffs have no
plain, adequate or complete remedy to redress the wrongs
and unlawful acts herein complained of other than this
action for declaration of rights and injunction. Any other
remedies to which plaintiffs and members of their class
ean be remitted would be attended by such uncertainties
and delays as to deny them eybstaniial relief, would in-
volve a multiplicity [10] of suits and cause further ir-
reparable injury, damage and inconvenience of the plain-
tiffs. Unless the acts complained of are declared uncon-
stitutional and enjoined by this Court, thousands of per-
sons will be similarly incarcerated without an opportunity
to be heard and solely because of their poverty in violation
of the Due Process and Equal Protection Clauses of the
Constitution of the United States in the same manner as
plaintiffs herein. ;
PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully pray on behalf
of themselves and all others similarly situated that this
Court assume jurisdiction of this cause and:
(1) Enter a declaratory judgment pursuant to Title
28 U.S.C. § § 2201, 2202 and Rule 57 of the Federal Rules
of Civil Procedure declaring that the practices of the de-
fendants GERSTEIN, RAINWATER, PERRY, SEGALL,
SNOWDEN, FERGUSON, SUTTON, ADAIR and BERK-
12
MAN of refusing to provide a hearing to determine prob-
able cause for plaintiffs and their class immediately after
arrest violates the Fourth Amendment and the Due Proc-
ess Clause of the Fourteenth Amendment to the Consti-
tution of the United States.
(2) Enjoin defendants GERSTEIN, RAINWATER,
PERRY, SEGALL, SNOWDEN, REGUSON, SUTTON,
ADAIR and BERKMAN from failing to accord plaintiffs
and members of their class due process hearings immedi-
ately after arrest to determine whether or not probable
cause exists for the detention of the plaintiffs and their
class.
(3) Enter declaratory judgment pursuant to Title
28 U.S.C. § § 2201, 2202 and Rule 57 of the Federal Rules
of Civil Procedure declaring that the practices of the
defendants PURDY, GARMIRE, MAYNARD and POM-
ERANCE and their agents, servants and [11] employees
of arbitrarily filing charges against plaintiffs and mem-
bers of their class with the State Attorney for the Eleventh
Judicial Circuit in and for Dade County Florida or the
Justices of the Peace of Dade County, Florida, creates
an arbitrary and irrational classification in violation of
the Equal Protection Clause of the Fourteenth Amend-
ment to the Constitution of the United States.
(4) Enjoin defendants PURDY, GARMIRE, MAY-
NARD and POMERANCE and their agents, servants and
employees from arbitrarily filing charges upon plaintiffs
and members of their class with the State Attorney for the
Eleventh Judicial Circuit in and for Dade County, Florida
or the Justices of the Peace of Dade County, Florida.
RESIS OO Se. a ~~ « a i
13
(5) Enter declaratory judgment pursuant to Title
28 U.S.C. § § 2201, 2202 and Rule 57 of the Federal Rules
of Civil Procedure declaring that the practices of defend-
ants, RAINWATER, PERRY, SEGALL, SNOWDEN,
FERGUSON, SUTTON, ADAIR and BERKMAN of set-
ting monetary bail upon plaintiffs and members of their
class as a sole condition for their release pending trial
results in an arbitrary and irrational discrimination in
violation of the Equal Protection Clause of the Fourteenth
Amendment of the Constitution of the United States.
(6) Enjoin defendants RAINWATER, PERRY,
SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR
and BERKMAN from using monetary bail as the sole
means of granting pre-trial release for plaintiffs and mem-
bers of their class.
[12] (7) Grant such other and further relief as this
Court may deem just and proper. a
Respectfully submitted,
/s/ Bruce 8. Rogow
BRUCE S. ROGOW, ESQUIRE —
RENE V. MURAL, ESQUIRE
Legal Services of Greater Miami,
Inc.
622 N. W.62 Street
Miami, Florida 33150
Tel: 759-1608 .
Patt Pee ane
14,
/s/ Phillip A. Hubbart
PHILLIP A. HUBBART
ESQUIRE
Public Defender of the Eleventh
Judicial Circuit of Dade County,
Florida
Metropolitan Justice Building
1351 N. W.12 Street
Miami, Florida 33125
Tel: 377-7156
COUNSEL FOR PLAINTIFFS
[13]
VERIFICATION
STATE OF FLORIDA ).
. SS:
COUNTY OF DADE }
THE UNDERSIGNED having personally appeared
before me, a Notary Public, and after being duly sworn,
deposes and says. that he is the named plaintiff in the
foregoing complaint and that the facts alleged therein
are true to the best of his knowledge, information and
belief.
/s/ Robert W. Pugh
15
SWORN TO AND SUBSCRIBED before me, this 11
day of March, 1971.
/s/ E. L. Tribble
NOTARY PUBLIC,
STATE OF FLORIDA AT LARGE
My Commission expires:
Notary Public, State of Florida at Large. My com-
mission expires Jan. 28, 1975. Bonded through Fred W.
Diestelhorst.
[14]
VERIFICATION
STATE OF FLORIDA )
. SS:
COUNTY OF DADE )
THE UNDERSIGNED having personally appeared
before me, a Notary Public, and after being duly sworn,
deposes and says that he is the named plaintiff i: the
foregoing complaint and that the facts alleged therein
are true to the best of his knowledge, information an:
belief.
/s/ Nathaniel Henderson
lhe siel
TBR WRI se eet Raa
16
SWORN TO AND SUBSCRIBED before me, this 11
day of March, 1971.
/s/ E. L. Tribble
NOTARY PUBLIC,
STATE OF FLORIDA AT LARGE
My Commission expires:
Notary Public, State of Florida at Large. My com-
mission expires Jan. 28, 1975. Bonded through Fred W.
Diestelhorst.
17
[54]
[TITLE OMITTED]
[Filed April 6, 1971]
ANSWER OF DEFENDANT
~ RICHARD E. GERSTEIN
COMES NOW Richard E. Gerstein, State Attorney
for the Eleventh Judicial Circuit in and for Dade County,
Florida, and as his Answer to the Complaint states as
follows:
The defendant admits the allegations of para-
graph one (1) of the Complaint.
2. The defendant denies the allegations of para-
graph two (2) of the Complaint.
3. The defendant admits the allegations of para-
graph (3) of the Complaint.
4. The defendant: admits the allegations of para-
graph four (4) of the Complaint with the exception of
the last sentence thereof. The defendant is without [55]
knowledge of the financial ability of the plaintiff Nathan-
iel Henderson and, therefore, cannot admit or deny the
last sentence of paragraph four (4) of the Complaint.
5. The defendant_admits the allegations of para-
graph five (5) of the Complaint.
6. The defendant is-without knowledge of the allega-
tions of paragraph six (6) of the Complaint and, there-
fore, cannot admit or deny.
—
tlh inci SOMA ts scons Mal I Rn OR
18
7. The defendant admits the allegations
graph seven (7) of the Complaint.
8. The defendant admits the allegations
graph eight (8) of the Complaint.
9. The defendant admits the allegations
graph nine (9) of the Complaint.
10. The defendant admits the allegations
graph ten (10) of the Complaint.
11. The defendant admits the allegations
graph eleven (11) of the Complaint.
12. The defendant admits the allegations
graph twelve (12) of the Complaint.
13. The defendant admits the allegations
graph thirteen (13) of the Complaint.
14. The defendant admits the allegations
graph fourteen (14) of the Complaint.
15. The defendant admits the allegations
graph fifteen (15) of the Complaint.
16. The defendant admits the allegations
graph sixteen (16) of the Complaint.
17. The defendant admits the allegations
graph seventeen (17) of the Complaint.
18. The defendant admits the allegations
graph eighteen (18) of the Complaint.
PEGDA, “Cen NBR Se
of para-
of para-
of para-
of para-
of para-
of para-
of para-
of para-
of para-
of para-
of para-
of para-
Cee Dak Aira
19
19. The defendant is without sufficient knowledge
of the allegations contained in paragraph nineteen (19) so
as to admit or deny the Complaint.
[56] 20. The defendant admits the allegations of
paragraph twenty (20) of the Complaint.
21. The defendant is without sufficient knowledge
of the allegations contained in paragraph twenty-one (21)
so as to admit or deny the Complaint.
22. The defendant denies the allegations of para-
graph twenty-two (22) of the Complaint.
23. The defendant repeats and realledges the An-
swers set forth in paragraphs one (1) throught twenty-two
(22) above.
24. The defendant admits the allegations of para-
graph twenty-four (24) of the Complaint.
25. In Answer to paragraph twenty-five (25) of the
Complaint, the defendant admits that there is no hearing
when charges are filed with the State Attorney, but denies
that this constitutes any deprivation of any right of the
plaintiffs or any class they may represent.
26. The defendant admits the allegations of para-
graph twenty-six (26) of the Complaint.
27. The defendant denies the allegations of para-
graph twenty-seven (27) of the Complaint.
28. The defendant denies the allegations of para-
graph twenty-eight (28) of the Complaint.
20
29. The defendant denies the allegations of para-
graph twenty-nine (29) of the Complaint.
30. In Answer to paragraph thirty (30) of the Com-
plaint, the defendant repeats and realledges his Answer
to paragraphs one (1), two (2), four (4), six (6), eight
(8), nine (9), fourteen (14), and seventeen (17) set forth
above.
31. The defendant is without sufficient knowledge
of the allegations contained in paragraph thirty-one (31)
so as to admit or deny the Complaint.
32. The defendant is without sufficient knowledge —
of the allegations contained in paragraph thirty-two (32)
so as to admit or deny the Complaint.
[57] 33. The defendant denies the allegations of
paragraph thirty-three (33) of the Complaint.
34. The defendant denies the allegations of para-
graph thirty-four (34) of the Complaint.
WHEREFORE, the defendant Richard E. Gerstein,
having answered the Complaint, prays that the Court enter
a final judgment in his favor.
RICHARD E. GERSTEIN
STATE ATTORNEY
By: /s/ Jack R. Blumenfeld
JACK R. BLUMENFELD
Assistant State Attorney
Brrciicccs:| RIED. gh on AOR
21
[58]
[TITLE OMITTED]
MEMORANDUM OF LAW
AND MOTION FOR SUMMARY JUDGMENT
COMES NOW the Defendant Richard E. Gerstein as
State Attorney for the Eleventh Judicial Circuit in and
for Dade County, Florida, by and through the undersigned
Assistant State Attorney and moves this Court for a sum-
mary final judgment in his favor and states that there are
no material disputed issues of fact and that the Defendant-
Gerstein is entitled to a judgment in his favor for the
reason stated in the attached Memorandum of Law.
/s.. Jack R. Blumenfeld
JACK R. BLUMENFELD, Esq.
Attorney for Defendant-Gerstein
Assistant State Attorney
Metropolitan Justice Building
1351 Northwest 12 Street
Miami, Florida 33125
96 Font A Ga RAIN STRODE DE 3 Ea
Deitel, i ela A
22
[59] |
' [TITLE OMITTED]
MEMORANDUM OF LAW IN SUPPORT
OF DEFENDANT-GERSTEIN’S. MOTION
FOR SUMMARY JUDGMENT
The undisputed facts in this case are as follows:
1. The Plaintiffs have both been charged with viola-
tions of the Florida Statutes.
2. They have been charged by Information (which
Informations are attached to the Complaint as Exhibits
A and B), as permitted by Article I, Section.15 (a) of
the Florida Constitution.
3. That prior to the filing of the Information there
was no Preliminary Hearing.
4. That the Informations were filed by the Defend-
ant-Gerstein, or by one of his duly appointed Assistant
State Attorneys, under and by his authority.
5. It is the policy and practice of the Defendant-
Gerstein, his agents, servants and employees to [60] file
Information based on independent examination of the
facts, notwithstanding the result of any Preliminary Hear-
ing, if any, and notwithstanding that there has been no
Preliminary Hearing.
6. It is the policy and practice of the Defendant-
Gerstein, his agents, servants, and employees to resist any
attempt to have Preliminary Hearing after an Informa-
tion has been filed or an indictment has been found.
* * *
23
[82]
. [TITLE OMITTED]
COMPLAINT
JURISDICTION
S
(1) This is an action brought by the intervening
plaintiffs on behalf of themselves and all others similarly
situated for declaratory judgment and for preliminary
and permanent injunction as authorized by Title 42 U.S.C.
$1983 and 28°U.S.C. §$2201 and 2202. The jurisdiction of
this Court is invoked under Title 28 U.S.C. $1343(3)
and (4).
[83] (2) The intervening plaintiffs and all others
similarly situated seek to secure the rights, privileges and
immunities established by the Fourth Amendment and the
Due Process and Equal Protection Clauses of the Four-
teenth Amendment of the Constitution of the United States.
The intervening plaintiffs and all others similarly situated
have been deprived of such rights, privileges and immuni-
ties by: (1) the various defendants’ refusal to provide
preliminary hearings to judicially determine probable cause
for incarcerating intervening plaintiffs: and (2) the ar-
bitrary and irrational procedures of defendants PURDY,
GARMIRE, MAYNARD and POMERANCE, and their
employees which creates two classifications of defendants
—i.e., those who receive a preliminary hearing in Justice
of the Peace Courts and those who are denied such a hear-
ing altogether; and (3) the defendant judges’ imposition
of monetary bail upon indigents as a condition of release
from custody pending trial.
ee. ee
aan De ae reth - ~
OR Neen Ba ERE ae
ae
Baveinecie Vaid oh.
24
PARTIES
(3) Intervening plaintiff THOMAS W. TURNER,
is a male citizen of the United States and of the State of
Florida. He is presently incarcerated in the Dade County
Stockade charged with auto theft, and is awaiting trial
in the Criminal Court of Record in and for Dade County,
Florida. He remains incarcerated solely because he is un-
able to post the $1,000 bond set in his case.
(4) Intervening plaintiff GARY FAULK, is a male
citizen of the United States and of the State of California.
He is presently incarcerated in the Dade County Stockade
charged with possession of marijuana and soliciting a ride
(hitchhiking) and is awaiting trial in the Criminal Court
of Record in and for Dade County, Florida and the Metro-
politan Court in and for Dade [84] County, Florida. He
remains incarcerated solely because he is financially unable
to post the $1,525 bond set in his case.
(5) The intervening plaintiffs are members of a
class composed of all persons arrested by law enforcement
officers in Dade County, Florida, who are being detained
in the Dade County Jail or Stockade solely upon a direct
information filed by the State Attorney for the Eleventh
Judicial Circuit in and for Dade County, Florida, and
who as a result have not been provided with: (1) an op-
portunity to be heard; (2) an opportunity to confront the
witnesses against them; (3) an opportunity to have prob-
able cause (if any exists) established by a judicial officer
of the State of Florida. The persons in the class are so
numerous that joinder of all persons is impractical; there
are questions of law and fact common to the class; the
claims of the representative parties will fairly and ade-
quately protect the interests of the class.
SOE IRAN nl 09 a eS RAEN si — ae
25
(6) The intervening plaintiffs also represent a class —
of persons who are incarcerated in the Dade County Stock-
ade or Jail solely because of their financial inability to
post monetary bail as a condition of release pending trial.
The persons in this class are so numerous that joinder of
all persons is impractical; there are questions of law and
fact common to the class; the claims of the representative
parties are typical of the claims of the class; and the repre-
sentative parties will fairly and adequately protect the
interests of the class.
(7) Defendant RICHARD E. GERSTEIN, is the
State Attorney for the Eleventh Judicial Circuit in and
for Dade County, Florida. In such capacity he is charged
with the authority and responsibility pursuant to Florida
Statutes, Chapters 27 and 906 [85] for filing informations
against persons alleged to have committed criminal acts.
(8) Defendants RUTH SUTTON, CHARLES
SNOWDEN, JASON BERKMAN, RALPH FERGUSON
and SYLVESTER ADAIR are Justices of the Peace in
and for Dade County, Florida and in such capacity have
the authority and responsibility pursuant to F.S.A. §901.01
and Rule 1.122 of the Florida Rules of Criminal Procedure
to provide preliminary hearings for defendants accused of
crimes in Dade County, Florida.
(9) Defendants JAMES RAINWATER, MORTUN
S, PERRY, and SIDNEY SEGALL are Judges of the Small
Claims Court in and for Dade County, Florida, and in
such capacity are empowered pursuant to F.S.A. §901.01
and Rule 1.122 of the Florida Rules of Criminal Procedure
to provide preliminary hearings for defendants accused
of crimes in Dade County, Florida.
ee eee
2h Wines! EX
FTE ie
ee ee
a ee ee
Disdiaine bc. '
26
(10) Defendant E. WILSON PURDY is the Direc-
tor of the Public Safety Department, Dade County, Flor-
ida. In such capacity defendant PURDY, his agents,
servants and employees enforce the statutes of the State
of Florida and are responsible for arresting persons who
allegedly have committed violations of said statutes.
(11) Defendant BERNARD E. GARMIRE is the
Chief of Police of the City of Miami Police Department
and in such capacity defendant GARMIRE, his agents,
servants and employees enforce the statutes of the State
of Florida and are responsible for arresting persons who
allegedly have committed violations of said statutes.
(12) Defendant DAVID MAYNARD is the Chief of
Police of the City of Hialeah, Florida and in such capacity
defendant MAYNARD, his agents, servants and employees
enforce the statutes of the State of Florida and are re-
sponsible for arresting perscis who allegedly have com-
mitted violations of said statutes. ;
[86] (13) Defendant ROCKY POMERANCE is the
Chief of Police of the City of Miami Beach, Florida and in
such capacity defendant POMERANCE, his agents, serv-
ants and employees enforce the statutes of the State of
Florida and are responsible for arresting persons who
allegedly have committed violations of said statutes.
(14) At all times hereinafter mentioned, the acts
complained of were carried out by the above named de-
fendants, their agents, servants and employees in their
official capacities under color of state law, regulation,
custom and useage.
27
FACTS
(15) Intervening plaintiff THOMAS W. TURNER,
was arrested on March 11, 1971 and charged with auto
theft. On March 12, 1971 he was presented to defendant
SNOWDEN, who was sitting solely for the purpose of
setting bond. Bond was set in the amount of $1,000. At
the bond hearing on March 12, 1971, no evidence was
presented against the plaintiff to judicially determine
probable cause for detaining the plaintiff.
(16) An information charging the intervening plain-
tiff TURNER with auto theft has been or will be filed by
Defendant GERSTEIN with the Clerk of the Criminal
Court of Record in and for Dade County, Florida. Interven-
ing plaintiff will not be given an opportunity to be present,
nor to be heard, nor to cross examine, nor to confront the
witnesses against him upon whose testimony the informa-
tion will be issued.
(17) Intervening plaintiff GARY FAULK was ar-
rested on March 19, 1971 and charged with soliciting a
ride (hitchhiking) and possession of marijuana. On March
20, 1971 he was presented to defendant RAINWATER who
was sitting solely for the purpose of setting bond. Bond
was set in the amount of $1,500 on the possession charge
and $25 on the hitchhiking charge. At the bond hearing
[87] on March 20, 1971 no evidence was presented against
the intervening plaintiff to judicially determine probable
cause for detaining him.
(18) An information charging intervening plaintiff
FAULK with possession of marijuana has been or will be
filed by defendant GERSTEIN with the Clerk of the Crim-
Sicha ibiza in ORDER cee ESN Ra PROC RA Pie n°
ix ,
bad
28
inal Court’ of Record in and for Dade County, Florida.
Intervening plaintiff will not be given an opportunity to
be present, nor an opportunity to be heard, nor to cross
examine, nor to confront the witnesses against him upon
whose testimony the information will be issued.
THE POLICIES AND PRACTICES COMPLAINED
OF
COUNT IL.
(19) It is the policy, pattern and practice of de-
fendants PURDY, GARMIRE, MAYNARD and POM-
ERANCE, and their agents, servants and employees to fail
to present arrested persons before judges without unneces-
sary delay for the purpose of establishing probable cause
at a preliminary hearing for the arrest of said defendant.
(20) It is the policy and practice of defendant
GERSTEIN and his agents, servants and employees to file
direct informations based upon testimony provided to an
assistant state attorney for a police officer. Furthermore,
it is the policy and practice of defendant GERSTEIN, his
agents, servants and employees to refuse to provide a de-
fendant in custody by virtue of a directly filed informa-
tion an opportunity for a binding preliminary hearing to
determine probable cause for his incarceration.
(21) It is the policy and practice of defendants
RUTH SUTTON, CHARLES SNOWDEN, JASON BERK-
MAN, RALPH FERGUSON, SYLVESTER ADAIR,
JAMES RAINWATER, MORTON S. PERRY, and SID-
NEY [88] SEGALL to refuse to provide a preliminary
Regi SAARI ONO ON LL NSO SA ARCA RCI AML A MORTON
29
hearing to persons incarcerated in the Dade County Jail
by virtue of a direct information filed by defendant
GERSTEIN.
(22) The above described actions of the named de-
fendants results in the incarceration of the intervening
Jaintiffs and members of their class solely upon a direct
information filed by the state attorney and deprives said
intervening plaintiffs of their liberty without an oppor-
unity to be heard, to confront the witnesses against them,
or to have a judicial determination of probable cause made,
all\of which is in violation of the Fourth Amendment and
the Due Process Clause of the Fourteenth Amendment to
the Constitution of the United States.
COUNT II.
(23) Plaintiffs repeat and reallege the facts set forth
in paragraphs 1 through 22 above.
(24) Defendants PURDY, GARMIRE, MAYNARD
and POMERANCE, through their agents, servants and
employees file charges upon persons they arrest with either
a justice of the peace, in Dade County, Florida, or with
the defendant, State Attorney GERSTEIN.
(25) If said charges are filed with the defendant
state attorney, then as set forth in Count I, the interven-
ing plaintiffs are deprived of their right to a hearing based
upon the direct informations filed by the defendant
GERSTEIN.
PA ALL AS
30
(26) If however, defendants PURDY, GARMIRE,
MAYNARD and POMERANCE, through their agents,
servants and employees choose to file the charges with a
justice of the peace, then a preliminary hearing will be
accorded to the arrested person in due course.
(27) Defendants PURDY, GARMIRE, MAYNARD
and POMERANCE, and their employees have unfettered
discretion in choosing the [89] authorities with whom they
will file charges. No standards or rules guide said decisions.
(28) The actions of Defendants PURDY, GAR-
MIRE, MAYNARD and POMERANCE and their agents,
servants and employees thereby creates two classes of —
arrested persons: (1) persons who are denied preliminary
hearings be ‘ause the arresting officer has filed charges
directly with the State Attorney’s Office, thereby causing
an information to issue, and (2) persons who are granted
preliminary hearings because the arresting officer has
filed charges with one of the Justices of the Peace of Dade
County, Florida.
(29) The creation of these two classes of arrested
persons is arbitrary, unreasonable and capricious. The
intervening plaintiffs and members of their class, who are
being denied preliminary hearings, are thus denied equal
protection of the laws in violation of the Fourteenth
Amendment of the Constitution of the United States as a
result of the irrational, unreasonable, arbitrary and capri-
cious actions of the agents of defendants PURDY, GAR-
MIRE, MAYNARD and POMERANCE.
a ee i aa AAO OOP TAT DEAN PEARS EY SA OS A te LT A tl RE, ek
na ate a5 OE aay WS: ee toh nam aR
2 eo wits
31
COUNT III.
(30) Intervening plaintiffs repeat and reallege para-
graphs 1, 2, 4, 6, 8, 9, 14 and 17 set forth above.
~(31) It is the policy, pattern and practice of de-
fendant judges RAINWATER, PERRY, SEGALL,
SNOWDEN, SUTTON, FERGUSON, ADAIR and BERK-
MAN to set monetary bail upon persons presented before
them as a condition of release pending trial. —
(32) Intervening plaintiffs have remained incar-
cerated solely because of their financial inability to post
the monetary bail set to assure their future appearances.
(33) The actions of the defendant judges creates
two classes of arrested persons: (1) persons who are finan-
cially [90] able to post the monetary bail bonds set in their
respective cases and thus secure their release from jail,
and (2) persons who are financially unable to post the
monetary bail bonds set in their respective cases and who
must remain in jail solely because of their poverty.
(34) The creation of these two classes of arrested
persons is arbitrary, unreasonable and capricious. It dis-
criminates against poor persons solely because of their
poverty without any rational basis. Intervening plaintiffs
and members of their class are thus denied equal protec-
tion of the laws in violation of the Equal Protection Clause
of the Fourteenth Amendment to the Constitution of the
United States.
Sate anata RN REA RAPA, CP RESTS S »
Sxnuine
82
NATURE OF RELIEF
(35) There is beween the parties an actual con-
troversy as herein set forth. The intervening plaintiffs
and the classes they represent, are suffering irreparable
injury and are threatened with irreparable injury in the
future by reason of the acts herein complained of. The
intervening plaintiffs have no plain, adequate or complete
remedy to redress the wrongs and unlawful acts herein
complained of other than this action for declaration of
rights and injunction. Any other remedies to which in4
tervening plaintiffs and members of their class can be
remitted would be attended by such uncertainties and
delays as to deny them substantial relief, would involve a
multiplicity of suits and cause further irreparable injury,
damages and inconvenience of the intervening plaintiffs.
Unless the acts complained of are declared unconstitutional
and enjoined by this Court, thousands of persons will be
similarly incarcerated without an opportunity to be heard
[91] and solely because of their poverty in violation of the
Due Process and Equal Protection Clauses of the Constitu-
tion of the United States in the same manner as interven-
ing plaintiffs herein.
PRAYER FOR RELIEF
WHEREFORE, intervening plaintiffs respectfully
pray on behalf of themselves and all others similarly situ-
ated that this Court assume jurisdiction of this cause and:
(1) Enter a declaratory judgment. pursuant to Title
28 U.S.C. §$2201, 2202 and Rule 57 of the Federal Rules
of Civil Procedure declaring that the practices of the de-
fendants GERSTEIN, RAINWATER, PERRY, SEGALL,
SNOWDEN, FERGUSON, SUTTON, ADAIR and BERK- -
33
MAN of refusing to provide a hearing to determine prob-
able cause for intervening plaintiffs and their class im-
mediately after arrest violates the Fourth Amendment and
the Due Process Clause of the Fourteenth Amendment to
the Constitution of the United States.
(2) Enjoin defendants GERSTEIN, RAINWATER,
PERRY, SEGALL, SNOWDEN, FERGUSON, SUTTON,
ADAIR and BERKMAN from failing to accord interven-
ing plaintiffs and members of their class due process hear-
ings immediately after arrest to determine whether or not
probable cause exists for the detention of the intervening
plaintiffs and their class.
(3) Enter declaratory judgment pursuant to Title
28 U.S.C. $$2201, 2202 and Rule 57 of the Federal Rules
of Civil Procedure declaring that the practices of the de-
fendants PURDY, GARMIRE, MAYNARD and POM-
ERANCE and their agents, servants and employees of ar-
bitrarily filing charges against intervening plaintiffs and
members of their class with the State Attorney [92] for
the Eleventh Judicial Circuit in and for Dade County,
Florida or the Justices of the Peace of Dade County, Flor-
ida, creates an arbitrary and irrational classification in
violation of the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States.
(4) Enjoin defendants PURDY, GARMIRE, MAY-
NARD and POMERANCE and their agents, servants and
employees from arbitrarily filing charges upon interven-
ing plaintiffs and members of their class with the State
Attorney for the Eleventh J udicial Circuit in and for Dade
County, Florida or the Justices of the Peace of Dade
County, Florida.
NRE eae baw.
Sida
irritates cia ainetisaa ssntecatineinn tes tnt AOAC INS
ad
34
(5) Enter declaratory judgment pursuant to Title
28 U.S.C. §§2201, 2202 and Rule 57 of the Federal Rules
of Civil Procedure declaring that the practices of defend-
ants RAINWATER, PERRY, SEGALL, SNOWDEN,
FERGUSON, SUTTON, ADAIR and BERKMAN of set-
ting monetary bail upon intervening plaintiffs and mem-
bers of their class as a sole condition of their release
pending trial results in an arbitrary and irrational dis-
crimination in violation of the Equal Protection Clause of
the Fourteenth Amendment of the Constitution of the
United States.
(6) Enjoin defendants RAINWATER, PERRY,
SEGALL, SNOWDEN, FERGUSON, SUTTON, ADAIR
and BERKMAN from using monetary bail as the sole
means of granting pre-trial release for intervening plain- \
tiffs and members of their class.
(7) Grant such other and further relief as this Court
‘may deem must and proper.
Respectfully submitted,
/s/ Bruce 8. Rogow
BRUCE S. ROGOW, ESQUIRE
_ RENE V. MURAI, ESQUIRE
Legal Services of Greater Miami,
Ine.
622 N. W. 62 Street
Miami, Florida 33150
35
PHILLIP A. HUBBART,
ESQUIRE
Public Defender
Metropolitan Justice Building
1351 N. W. 12 Street |
Miami, Florida 33125
[93]
’ VERIFICATION
STATE OF FLORIDA )
| ) ss
COUNTY OF DADE )
THE UNDERSIGNED, having personally appeared
before me, a Notary Public, and after being duly sworn,
deposes and says that he is the named Plaintiff in the
foregoing complaint and that the facts alleged therein are
true to the best of his knowledge, information and belief.
/s/ Thomas W.. Turner
SWORN TO AND SUBSCRIBED BEFORE me, this
31 day of March, 1971.
/s/ Eanet L. Leibble
Notary Public,
State of Florida at Large’
My Commission Expires:
NOTARY PUBLIC, STATE of FLORIDA at LARGE.
MY COMMISSION EXPIRES JAN. 28, 1975. Bonded
through FRED W. DIESTELHORST.
Salat MR GE BRA IO RAI MER LS is na eso
ens Yee
REGIS 0 eh Red gE RTP LAE EDO OR
36
[94]
VERIFICATION
STATE OF FLORIDA, )
) SS
COUNTY OF DADE, )
THE UNDERSIGNED, having personally appeared
before me, a Notary Public, and after being duly sworn,
deposes and says that he is the named plaintiff in the fore-
going complaint and that the facts alleged therein are true
to the best of his knowledge, information and belief.
/s/ Gary Faulk
SWORN TO AND SUBSCRIBED before me, this 30
' day of March, 1971.
/s/ Earnest L. Liebble
Notary Public
State of Florida at Large
My Commission Expires:
NOTARY PUBLIC, STATE of FLORIDA at LARGE.
MY COMMISSION EXPIRES JAN. 28, 1975. Bonded
through FRED W. DIESTELHORST.
* * *
37
[14]
PUBLIC DEFENDER
Eleventh Judicial Circuit of Florida
Metropolitan Justice Building
1351 N.W. 12th Street
Miami, Florida 33125
PHILLIP A. HUBBART | Telephone
Public Defender ~ 377-7166 —
May 12, 1971
The Honorable James L. King, Judge
United States District Court for the
Southern District of Florida
Main Post Office Building
Miami, Florida
RE: PUGH V. RAINWATER, CASE NO. 71-448-Civ-JLK
Dear Judge King,
In.response to your Honor’s request that the Plaintiffs
and the State Attorney, in conjunction with the other local
officials in the above-styled cause, confer for the purpose
of working out arrangements to provide preliminary hear-
ings for all persons arrested for state offenses in Dade
County, Florida, Mr. Jack Blumenfeld, representing the
State Attorney’s Office, Phillip Hubbart, the Public De-
fender for Dade County and co-counsel for the Plaintiffs,
and Mr. Bruce Rogow, co-counsel for the Plaintiffs, have
conferred for the above stated purpose. Here are the re-
sults of our conversations.
thee a WA Re A Re ait AA es
=” = 4
_ 88
1. It has not been possible for the parties to agree
on procedures to immediately implement preliminary hear-
ings for all persons charged with state offenses in Dade
County, Florida. It is the State Attorney’s position that
it is impossible to provide such hearings immediately in all
cases without cooperation of all elements of the criminal
justice system and enabling legislation.
2. If the Court rules that preliminary hearings are
constitutionally required for all persons arrested for state
offenses in Dade County, Florida, the State Attorney would
ask [15] that the State be given (90) days, from
date of the Court’s order or from the date of the man-
date of an appellate Court should there be an appeal,
to implement the provisions of this order. This ninety (90)
day period is requested so as to make the necessary ar-
rangements with local officials to provide such preliminary
. hearings and might act as impetus for the Florida State
Legislature to pass pending legislation to provide a com-
mitting magistrate system for Dade County, Florida. The
Plaintiffs have no objection to this request.
Respectfully submitted,
/s/ Jack A. Blumenfeld
JACK R. BLUMENFELD
Assistant State Attorney
2 eR Ne i RIA Bem
a a ee
/s/ Phillip A. Hubbart
PHILLIP A. HUBBART
Public Defender
PAH/fb
= pete. rearing te
Deter e
39
: Bruce Rogow, Esquire
Judge Sidney Segall
Judge Ralph B. Ferguson, Jr.
Barry Richard, Esquire
Alan H. Rothstein, Esquire
Alan Diamond, Esquire
Judge Morton S. Perry
Judge Charles Snowden
Judge Jason Berkman
PORTED
ee ne eee
40
[256]
[TITLE OMITTED]
ORDER
[Filed May 14, 1971]
THIS CAUSE came on to be heard before me on
May 10, 1971, upon the various motions of defendants and
plaintiffs. The Court had the benefit of memoranda and
oral argument from counsel for the respective parties.
Based upon said presentations, it is hereby
ORDERED and ADJUDGED:
1. The Motion for Summary Judgment by Defendant
GERSTEIN is DENIED.
2. The Motion to Dismiss by Defendant PURDY is
DENIED. Defendant PURDY shall have 20 days from
the entry of this Order in which to file an Answer.
3. The Motions for Judgment on the Pleadings by
Defendant GARMIRE and POMERANCE are DENIED.
4. The Motion to Intervene as Plaintiffs by
THOMAS W. TURNER and GARY FAULK is
GRANTED. The Motion of the Intervening Plaintiffs
to proceed in forma pauperis is also GRANTED.
~5. The Plaintiffs’ Motion for Partial Summary
Judgment against Defendant GERSTEIN is taken under
advisement
be
41
6. The ore tenus Motion of counsel for Defendants
SUTTON and RAINWATER to allow the Answer, Motion
for Summary [257] Judgment and Memorandum of Law
heretofore filed for those Defendants to stand as the
pleadings for Defendant ADAIR is GRANTED.
7. The ore.tenus Motion of Defendant GERSTEIN
to allow his Answer, Motion for Summary Judgment and
Memorandum to apply to the intervening Complaint is
GRANTED. The pleadings of the Defendant GERSTEIN
shall be deemed applicable to the intervenors.
é
DONE and ORDERED in chambers, at Miami, Dade
County, Florida, this 13 day of May, 1971.
/s/ James Lawrence King
U. §. DISTRICT COURT JUDGE
NP ut iictew
42
[828]
[Filed June 8, 1971]
[TITLE OMITTED]
DEPOSITION OF JAMES REAGAN, JR.
The oral examination of James Reagan, Jr., taken
pursuant to Notice of Taking Deposition on behalf of the
Plaintiffs, before Melvin Gross, a Notary Public in and
for the State of Florida at Large, on Thursday, the 3rd
day of June, 1971, at 3:55 o’clock p.m., at the Office of
the Public Defender, the Hon. Phillip A. Hubbart, 1351
Northwest 12th Street, Miami, Florida.
[329] APPEARANCES:
HON. PHILLIP A. HUBBART,
Public Defender, and
BENNETT H. BRUMMER, ESQ.
Assistant Public Defender, and
BRUCE ROGOW, ESQ. of
Legal Services,
622 Northwest 62nd Street,
Miami, Florida.
On behalf of the Plaintiffs.
ichasiainilisd Weis cicinaahinpeins lies bias oie ee XEN Nant Race Caves Pile
HON. RICHARD E. GERSTEIN,
State Attorney.
, By: JACK R. BLUMENFELD, ESQ.,
: Assistant State Attorney.
1 On behalf of the Defendant Reagan.
43
BARRY RICHARD, ESQ.
Assistant Attorney General,
1350 Northwest 12th Avenue,
Miami, Florida.
On behalf of the Defendants
Rainwater, Sutton and Adair.
ALAN T. DIMOND, ESQ.
Assistant County Attorney,
1626 Dade County Courthouse,
Miami, Florida.
On behalf of Defendants
Sandstrom and Reagan.
[330]
INDEX
Witness Direct Cross
James Reagan, Jr. 3 (H) a
8 (R) —
15 (H) —
ae | ae -
| ters _
23 (R) —
[331] Thereupon
JAMES REAGAN, JR.
a Defendant herein, was called as a witness by the Plain-
tiffs and, after having been first duly sworn, was exam-
ined and testified on his oath as follows:
SRT ge ences
“
DIRECT EXAMINATION
BY MR. HUBBART:
Q Would you state your name and official position,
please?
A A.J. Reagan, Jr. I am the Administrative Officer
for the State Attorney of this Judicial Circuit.
Q How long have you been so employed?
A About 20 months.
Q Mr. Reagan, at my request, did you make a search
of the files and records of the State Attorney’s Office to
determine how many criminal charges had been no ac-
tioned by the State Attorney for the period of January
Ist, 1970 through March 31st, 1971?
A Ihad it done under my direction.
Q Let me show you a memorandun, for the purpose
of refreshing your recollection, concerning [832] the re-
sults of that search of the records. First of all, while you
are looking at that, and while your Counsel is looking at
that, could you tell me what a No Action Notice is?
A Yes. It is a statement by the State Attorney that
he does not intend at this time, or at that time, to prose-
cute further a particular charge upon which a Defandant
has been booked by a police officer.
Q And the determination is made by the State At-
torney that there is not sufficient evidence at that time
to proceed on that criminal charge?
A That is correct, or for some other reason. There
might be some impediment to the prosecution at that time.
ea is iti oun
— oan ee ene
Q Could you tell me the results of this search of the
records and this investigation that you made? '
A Yes. We found that during the period of January
1st, 1970 through March 3lst, 1971, we filed No Action
Notices on eleven hundred and sixty-five individual
charges.
Q Would you say that the vast majority [333] of
these No Action Notices are the results of police officers
arresting Defendants where there was not sufficient evi-
dence to justify the filing of the charge,
A That is correct.
Q Could you tell me what the procedure is in the
State Attorney’s Office, as to how a case is No Actioned?
What procedures are taken by the office before a deter-
mination is made that a charge should be No Actioned?
A Well, when the complainant appears before our
Assistant to file the formal charge, to give us an affidavit
concerning the facts of the case, the Assistant at that time
evaluates the evidence —
Q When you say Assistant, you mean an. Assistant
State Attorney?
A That is correct. He evaluates the evidence and
makes a determination of what the proper charge to file
is. If there is a charge that we do not intend to file, then
he will initiate this No Action Notice. It is then reviewed
by the Chief of our Complaint Division.
[334] Q He is also an Assistant State Attorney?
A That is correct. And it is finally reviewed by the
State Attorney, Mr. Gerstein.
Sabha Best
46
Q So it goes through three separate people; two
Assistant State Attorneys and the State Attorney himself,
in determining yhether or not a particular charge made by
a police officer should be No Actioned, is that correct?
A That is correct.
Q When a decision is made that a charge will be
No Actioned, then who is notified, if anybody?
A Well, we immediately notify the jail, if the De-
fendant is incarcerated. We send the original of the No
Action to the Shift Commander of that particular shift
of the jail. A copy is filed with the Clerk of the Criminal
Court of Record and a copy is sent to the arresting officer,
or the booking officer, and we keep a copy of it.
Q Now, if a Defendant is booked in on, say five
charges, and there is a determination that three of these
charges should be No Actioned, 1 understand the
procedure, you would then notify the jail, if he is incar-
cerated, that you are going to No Action three of the five
charges, and then you file an Information charging the
Defendant with the remaining two charges?
A That is correct.
Q So the bonds that have been set by the Com-
mitting Magistrate, or from the Master Bond List, what-
ever, on the other three’ charges that you have No
Actioned, would be dropped, is that coggect ?
A That is correct.
Q And the bonds would remain on the two charges
: that you filed?
A Well, no, it depends on what you mean by a bond.
Do you mean if the bond would remain had the Defendant
been released from jail?
47
Q Iam talking about—
A —and already posted bond?
Q
I am talking about incarcerated Defendants?
A No. The charges would be removed from the jail
card and he would not be required to post bond on those
charges, that is correct.
[336] Q So the bond would be dropped on the three
charges and the other two charges he would have to post
a bond in order to get out of jail, is that correct?
A That is correct.
MR. HUBBART: I have no further questions.
BY MR. ROGOW:
Q Mr. Reagan, how soon after a person is arrested
does the police officer present himself before the State
Attorney to file the Information?
A It varies in individual cases. From one day to
several days.
When you say several days, more than five?
On occasions, yes.
More than a week?
On occasions, yes.
More than ten days?
On occasions, yes.
More than two weeks?
On occasions, yes.
>OoO PO PO PO
4
9
*
2
%
2
9
2
1
A
At
SRN SS, eee SRI + <8 ED WE sod OR RCS
48
Q More than a month?
[337] A I know of no such length of time as that.
Q But it would be somewhere between two weeks
and a month that you have seen cases where no complain-
ant presented himself to the Assistant State Attorney?
A. I cannot recall of anything over two weeks, per-
sonally. Of course, I am not saying there have not been
occasions. We have had rather extensive followup proce-
dures to see that that does not happen.
I have one girl who does nothing all day but call police
officers and say, “You arrested this man, come in and
file.”
Q How soon after the arrest does she begin to make
the followup telephone calls?
A The next day. We have a rather elaborate system
of cross-indexing our complaint. When a police officer
comes to file, he is given a slip which is called a Referral
Slip. It is a multicopy form and it has such information
on it as the Defendant’s name, the nature of the complaint,
the person who is filing the complaint. We cross-index
[338] these by both complaint and defendant.
The gfiginal slip goes with the complainant to the
Assistant State Attorney. He takes the slip from him and,
“on the back of it, indicates what action he has taken on
the complaint. If he intends to file the Information, he will
write, “Information filed.”
This slip is then routed back through this young lady
in our Jail Records Section. She makes the followup call
as soon as she gets the slip. She says, “The case is filed.”
49
She then drops that one from consideration and follows
up only on the ones that she hasn’t got an Information on.
Q. Those are only for jail cases?
A That is correct.
Q If a man is out on bond, there is no procedure to
encourage the police officer to come in and file the Infor-
mation right away?
A Unfortunately, I don’t have the personnel for that
sort of followup. Do,
Q After a complaining witness, or a complaint is
made, the police officer comes in and talks to an Assistant
State Attorney, and then the [339] Assistant State Attor-
ney prepares the Information, if he thinks one should be
filed, is that correct?
A That is correct.
Q What does he do after that with that Informa-
tion? Where does he go with that Information?
A First it goes through our Jail Reeords Section, as
I mentioned before. The booking sheet is attached to the
file at that point in time. It then goes to a processing sec-
tion, to make sure that everything necessary for the prose-
cution of this case is contained in it.
Q How long does this, processing take? That is what
I am getting at. |
A In jail cases, we expedite them anywhere from
24 to 72 hours.
Q What happens in these 24 to 72 hours?
A The assistant takes the complaint, the complaint
peat cs tei, Lak dane 1% « ms
db bneacecie
Sit ep RAIN aM EE te Todi METS
50
- is processed for other information, such as corporate cer-
tificates or anything that we might need in court. Birth
certificates, things of this nature. Then it is typed. Then
it is sent back to the Assistant State Attorney that took
the complaint for his approval.
[340] If it is proper, he initials it. It is then reviewed
by the Chief of our Complaint Division who also initials
it. Then it is sent'to Mr. Gerstein, who signs it. It is then
filed with the Clerk of the Criminal Court of Record.
Q You say that at the outside it is 72 hours?
A On jail cases, yes.
Q On jail cases?
A_ We allot absolute, top priority to jail cases. And
the least priority we uave, of course, are people out on
bond.
Q. When the Information is finally signed by Mr.
Gerstein, or one of the other Assistants, it is tnen sent
up to the Clerk of the Criminal Court of Record?
A That, is correct.
Q It is then out of your hands at that point?
A That is correct.
Q You have no further contact with the Informa-
tion, other than the general processes of the Court?
[341] A Well, except in so far as we prepare the
calendar. As soon as the information is divisioned, by that
I mean that a Judge is assigned to it and a case number
is assigned to it, the Clerk notifies us of these two factors
_and we then set the jail cases. We then set it on the next
day’s calendar for arraignment.
nae hte RteE
51
Q So then you are depending upon when the Clerk
gets the calendar and assigns it to a Judge?
A Before we can sei it for arraignment, that is
correct.
Q That is out of your control? That is strictly in
the Clerk’s control?
A That’s right.
Q What happens if someone is arrested on Friday?
Does thai increase the length of time which the Informa-
tion will be filed because of the weekend?
A Yes.
Q So that would increase the 72 hours to approxi-
mately two more days? :
A You are talking about working days?
Q Yes.
[342] A Yes. It would be the nearrs. working day
for our office.
Q So if a person were arrested on Friday, the In-
formation might not be filed until the next Monday?
A It is possible.
Q And in bond cases, there is no timetable that you
can give us?
A No, not at all.
Q Do you have any idea of the lag between arrest
and —
A We try to keep within a three-week period. In
other words, we have the Information filed three weeks
after the arrest, I would say, 95 per cent of the bond
cases.
etag MSS
hia aS a reiak el
Bisticttesandcacrcteninion. iain
52
Q Do you have any statistical breakdown on the
percentage of cases in which you do have filed within 72
hours? :
A No, sir, I don’t.
Q Are there many cases which go beyond 72 hours?
A That is hard for me to say, Mr. Rogow. I really
don’t know.
[343] MR. BLUMENFELD: You are referring to
these eleven hundred and sixty-five No Action Notices and
this procedure refers to direct files, is that correct?
THE WITNESS: That is correct, Where arrests had
been made without warrants.
MR..BLUMENFELD: And if the officer elects to
go to the Justice of the Peace and there is a bind-over
from the Justice of the Peace and the Assistant elects not
to file it, that is not included in these eleven hundred and
sixty-five No Action Notices?
THE WITNESS: That is correct, it is not included.
MR. BLUMENFELD: That is another form of
notice, is that correct?
THE WITNESS: That is correct.
BY MR. HUBBART:
Q Mr. Reagan, where the police officer does not
file directly with the State Attorney’s Office, but goes
through the Justice of the Peace Court and files a com-
ESOL ee RE ae Ate, ae
gee :
58
plaint there, could you tell us what the procedures are, in
so far as the State [344] Attorney’s Office is concerned,
after the case has been bound over? How do you handle
that?
A Certainly we — the Justice of the Peace trans-
mits all of these papers to the Clerk of the Criminal Court
of Record.
Q After they held a preliminary hearing on the
matter?
A That is correct. This is assuming there is a bind-
over. The Clerk of the Criminal Court of Record sends
us copies of all these papers. It is assigned to an Assistant
who investigates, to determine the proper charge to file.
After that determination is made, an Information is filed
in that particular case. In this instance we already have
a division and a case number so we don’t have the com-
munication problem. :
In the event that the Assistant decides that there is
insufficient evidence to file an Information, or for any
other reason he declines to file an Information, he insti-
tutes a Notice called a No Information. This is a report
similar to a No Action Notice. He sets forth the reasons
why he is declining to file an Information in this case.
[345] It is approved the same way the No Action is
approved. Then the oral announcement is made in open
court and that closes the JP bind-over, in so far as the
Criminal Court is concerned.
Q What is the lag in time, between the time of ar-
rest and the JP bind-over case, and the time that the JP
Puchi Mab antiods aparece
= ‘
sens PAO Bee TMS 2. Ht BAY
4
ater What etelS LS te eth METRE ABE 8
o4
finally gets the papers to you and you file an Information
against the Defendant? Do you have any approximation
on-that?
A Anywhere from seven days to six weeks. Yes.
Q And that is between the time of the arrest of the
Defendant and the time of the filing of the Information?
A That is correct.
s
Q Could you give us an approximation as to the
length of time in a No Action case, the length of time
between the time of the Defendant’s arrest and the time
that the matter is finally No Actioned?
A I would say, in the great majority of cases, be-
tween three and five days. ,
Q Of course, a weekend arrest would lengthen that
time by twe days?
[346] A Iam speaking of working days.
Let me point out, too, that most of these No Actions
don’t terminate the arrest. In other words, something is
filed.
Q That was just like I was talking about the five
charges where you may drop three and file on two, in
which case the bond is dropped on the three for the in-
carcerated defendants?
MR. BLUMENFELD: That likewise holds true on
No Information.
MR. REAGAN: On a No Information, there is an-
other problem involved. The JP’s, historically, have only
55
one charge per case. They make separate cases out of
every affidavit. They only put one charge on an affi-
davit. So if the police officer goes in and charges a man
with breaking and entering and grand larceny from the
house he broke and entered, that comes out to two cases
in the JP Court. It goes to the Criminal Court and it stays
two cases.
Once it gets to us, we consolidate it by filing one
Information on one of the cases, charging both crimes
and we have to No Information the [347] second case.
It is really a misnomer. That is, we are filing a No
Information in one cause of action but we are terminating
the second case for the record. And that happens in a great
number of cases.
Q The Clerk of the Criminal Court of Record of
Dade County is taking over the printing and preparing of
the calendar, are they not?
A Hopefully.
Q That will happen this summer. So that you will
no longer have the responsibility of notifying the Clerk
as to a particular Defendant that you filed an Informa-
tion on, that you need the division and the number?
A That is correct.
Q And then putting him on the calendar shortly
after you get that Information back from the Clerk?
A That is correct.
MR. HUBBART: That’s all I have.
CS AER DOV TR DS LON a TEMS sah
-
RIT sce Abbe an a at gl Fs NTN COR a ain hai tees te
es ae
ee
bie ASS
eo a ore eer
BY MR. ROGOW:
Q Along the same lines, Mr. Reagan, after you file
the Information with the Clerk, how [348] long does it
take him, if you know, to assign it to the division, get it
on the calendar, and then get it back to you so that you
will know it is going to appear in court?
A That varies greatly. From as little time as the
same day.
If we file an Information early in the morning, it is
possible that we would be notified that afternoon of the
division, the number —I have also seen the work back-
logged so that it takes as much as a week.
Q Between the time you bring it over there and the
time it is back on the calendar?
A Right.
MR. BLUMENFELD: No, not that it gets back on
the calendar, that we get notified of the case number and
the division so that we cannot put it on the calendar.
Q (By Mr. Rogow) How long after you get noti-
fied does it take you to put it on the calendar?
A We put it on the calendar the next available day.
Of course, you understand, if we get [349] this notice
after three o’clock in the afternoon, then it cannot go on
the next day’s calendar. You have got another 24 hour
period.
Q What I want to try to get from you is that at the
tin-e the complaining party comes to you, everything starts
at that time for you?
A Yes.
FF,
gs
57
Q There is nothing you can do before that? From
the time the complaining party comes to you, how much
time elapses, usually, before the case is put on the calen-
dar and the Defendant appears in court?
A My notice would be — the average would be be-
tween ten and fifteen days.
Q Ten and fifteen days?
A Yes.
Q Plus whatever time it took for the complainant to
come into your office?
A That is correct.
Q And if the man is in jail, he stays in jail during
all that time and he doesn’t see a Judge at all in that time,
except for the bonding judge that he saw the first morn-
ing?
[350] A That is correct.
(Thereupon a discussion was held off the record.)
BY MR. HUBBART:
Q These No Actions figures that you have given us,
the eleven hundred and sixty-five, is that in reference to
incarcerated Defendants?
A No, sir. Not all of these are caaeene Defend-
ants.
MR. BLUMENFELD: Excuse me. Not all of these
are Defendants. Not all eleven hundred and sixty-five are
Defendants. That is eleven hundred and sixty-five counts.
“SBA AR RA ad
hat baie A aA i io le Pt ea I EB TREE
Geeks Sassen ccd Wc tach aN
58
Q (By Mr. Hubbart) Of the eleven hundred and
sixty-five, from the No Actions filed from January Ist,
1970, until March 31st, 1971, this refers to the incarcer-
ated Defendants as well as non-incarcerated Defendants?
A That is correct. We also use this in order to clear
bonds. For example, a Defendant is arrested and posts a
bond on five charges, we only elect to prosecute him on
two charges, and in order to release the bond on the other
three charges, we [351] use this vehicle of a No Action.
Q Do you have any idea, any approximation as to
the number of incarcerated Defendants who are incar-
cerated —
Let me rephrase that. There are eleven hundred and
sixty-five individual charges; do you have any idea of
what percentage would involve incarcerated Defendants?
A No, sir, I don’t.
!
BY MR. ROGOW:
Q Mr. Reagan, do you have any idea of how many
eases are nol pros’d after an Information is filed? In
other words, somewhere along the way a decision is made
by the State Attorney’s Office not to proceed after the
Information is filed?
A Not in that particular category. I have statistics
on how many cases are terminated by dismissal, nol pros’d
or No Infornjation.
Q Could you get those statistics for us, unless you
have them in your head?
A No, I haven’t. If you will excuse me, I will get
them now.
FV La aN yee
59
Q Are they written?
[352] A Yes, they are in writing.
Q Would you give us a memorandum on that, where
your statistics show that, and we will attach that as an
exhibit to the deposition?
MR. BLUMENFELD: You want the calendar year
1970 as a base?
Mi. HUBBART: That is all right. Could you give
us any breakdown, also, on these eleven hundred and sixty-
five, how many of these involved incarcerated Defendants,
if there is any way of determining that?
THE WITNESS: I could count them.
MR. HUBBART: I would like for you to do that,
if you don’t mind.
THE WITNESS: I don’t mind.
MR. HUBBART: I have no further questions,
MR. ROGOW: No further questions. :
MR. BLUMENFELD: No questions.
(Reading, signing and notice of filing were
waived by the witness.)
(Thereupon the taking of the deposition was
concluded at 4:15 p.m.)
Sidivaane: re |
Reet ees | TOMER INCREAS ON AY ER BOS SED Bee a attics SER
Seah tire
a Ra its Meat eek Ser RAN
Se ae ae
60
CERTIFICATE OF NOTARY
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
I, MELVIN GROSS, a Notary Public in and for the
State of Florida at Large, hereby certify that I reported
the deposition of sAMES REAGAN, JR., at the time and
place hereinabove set forth; that the witness was first
duly sworn by me; that the foregoing pages numbered
from 1 to 24, inclusive, constitute a true and correct tran-
scription of my stenographic report of the deposition of
said witness.
I FURTHER CERTIFY that I am neither attorney
nor counsel for, nor related to or employed by any of the
parties connected with the action, nor financially inter-
ested in the action.
WITNESS my hand and seal in the City of Miami,
Dade County, Florida, this 6th day of June, 1971.
/s/ Melvin Gross
Notary Public
61
[353]
[Filed June 9, 1971]
economic opportunity model cities office
Legal 622 n.w. 62nd Street
Services miami, florida 33150
Program, inc. telephone 759-1608
June 9, 1971 (area code 305)
Clerk
United States District Court
300 N.E. First Avenue
Miami, Florida
RE: PUGH V. RAINWATER
Case No. 71-488-Civ-JLK
Dear Sir:
Enclosed please find a “Caseload Report for the Cal-
endar Year Ended December 31, 1971” from the office of
the State Attorney for the Eleventh Judicial Circuit. This
is to be filed as an exhibit to the deposition of A. J. Regan,
Jr., already on file with the Court.
Very truly yours,
/s/ Bruce S. Rogow
BRUCE S. ROGOW, ESQUIRE
ec: Jack R. Blumenfeld, Esquire
Alan Diamond, Esquire
Barry Richard, Esq.
BSR/nlj
oe
we lS ge eS A aicraatncsadiaild ]
Bo tite olan Se ee Sa Ae De
Dea Eee et
~~
62
[354]
STATE ATTORNEY, ELEVENTH JUDICIAL CIRCUIT
CASELOAD REPORT FOR THE CALENDAR YEAR
ENDED DECEMBER 31, 1970
Dispo-
In Process eitionp
Fiscal Year Add New Cases for Quarter— Since
Cases 1/1/70 From Informations and Indi 1/1/70
Capital Offenses .........00 65 93 158 90
Other Non-Capital
PORIEIE sccisceniassseuvitiniiinne 21,403 12,804 34,207 5,401
Misdemeanors .......ssesceeseeee 12,760 3,741 16,501 2,365
TOTAL CASES ........ 34,228 16,638 50,866 7,856
TOTAL NUMBER
of PERSONS NA
TOTAL NUMBER
OF CASES
BOUND OVER
Dispositions Totals
No True Bills .
Nolle Pros 194
Plea of Guilty (3,234)
Convictions 4,716
Acquittals ; 1,565
*Other (Absentee Docket, etc.)..... 1,373
TOTAL DISPOSITIONS ...... 7,856
*Guilty Pleas included in convictions.
(*) If these cases are reactivated at a future date, treat as new cases.
Other Matters
Appeals to Higher Courts ......0 311
Bond Validations ......cscsssesssseeeseeees 15
Bond Estreatures ....csscssssesssesseserees 1,918
Extradition Proceedings .........0+ 68
Rule I Motions w.ccccccssesecscseseeveees 160
Criminal Hearings ........cssesssesseeeee 12,771
Habeas Corpus Hearings .............. 159
Uniform Support Procedures ...... 1,250
Other Cases Not Enumerated
(Specify) 1,696
TOTAL OTHER MATTERS .. 18,348
(Signature)
lo
Process
At
Period
12/31/70
68
28,806
14,136
43,010
Note: One form may be used for all four quarters. Just erase or Sno-Pake
totals from the previous quarter, list the new quarter, then add Cases
In Process at the beginning of the year; after subtracting: dispositions
since the beginning of the year, a new total of Cases In Process at the
ending of the new quarter will be obtained.
Distribution: Four copies to Judicial Administrative Commission — which will
retain one, and forward one each to the Governor's Office, the
Attorney General, and the Budget Director.
Pty
ROE Uo Iho
See LORENA TE Re LS F
aN
Ge
}
63
[TITLE OMITTED]
[Filed July 6, 1971]
MOTION FOR SEPARATE TRIALS AND
TRANSFER OF PARTIES AND MEMORANDUM
Plaintiffs and Defendants, James Rainwater, Ruth
Sutton, and Sylvester P. Adair, hereby jointly move this
_ Court to order a separate trial on the issue of bail, raised
by Count III of the Complaint and to grant leave to said
defendants to transfer from party defendants to party
plaintiffs on the issue of preliminary hearings, raised by
Counts I and II of the i and as grounds there-
for states:
1. The two issues are factually and legally unrelated.
2. Said defendants in their memoranda and in oral
argument have argued in favor of the plaintiffs’ position
on the preliminary hearing issue.
3. It is apparent from the pleadings that judgment
against the defendants Rainwater, Sutton and Adair is
not necessary in order for the plaintiffs to obtain the relief
they seek on the preliminary hearing issue.
4. Transfer of the defendants Rainwater, Sutton and
Adair from parties defendant to parties plaintiff would
clarify the positions of the parties for the remainder of the
64
litigation in [450] this court and on appeal should one be
taken. | .
Respectfully submitted,
BRUCE S. ROGOW, ESQUIRE
Legal Services. of Greater
Miami, Inc. —
622 N.W. 62nd Street
oo '. Miami, Florida 33150 .
PHILLIP A, HUBBART,
. ESQUIRE
Public Defender of the Eleventh
‘Judicial Circuit
Metropolitan Justice Building
1351 N.W. 12th’ Street
Miami, Florida 33125
By /s/ Phillip A. Hubbart
-
RSS See Se ene
ROBERT: L. SHEVIN
Attorney General
t
/s/ Barry Scott Richard
BARRY SCOTT RICHARD
Chief Assistant Attorney General
-1350,N.W. 12th Avenue, Rm 530
Miami, Florida —
ii Ri Mie i5i RS REAR AROS
a
65
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy
of the foregoing Motion for Separate Trials and Trans-
fer of Parties was mailed to the parties listed below this
25th day of June, 1971.
Howard Levine and
James Jorgensen
Legal Unit
1320 N.W. 14th Street
Public Safety Dept.,
Miami, Florida
Judge James Rainwater
1351 N.W. 12th St.
Room 444
Miami, Florida
Judge Sidney Segail
1351 N.W. 12th St.,
Miami, Florida
Ralph B. Ferguson, Jr.,
Justice of the Peace -
2001 N.W. 7th Street
Miami, Florida
Sylvester P. Adair
Justice of the Peace
432 Washington Avenue
Homestead, Florida
Bruce Rogow, Esq.
Legal Services of Greater
Miami
622 N.W. 62nd St.
Miami, Fla., 33150
Alan Diamond, Esq.
Assistant County Attorney
73 West Flagler Street
Miami, Florida
Morton S. Perry, Judge
1351 N.W. 12 St.
Room 440
Miami, Florida
Charles Snowden
Justice of the Peace
12210 N.W. 7th Ave.
Miami, Fla.
Ruth L. Sutton
Justice of the Peace
220 Miracle Mile
Coral Gables, Fla.
Rocky Pomerance
Chief of Police
City of Miami Beach
100 Meridian Avenue
Miami Beach, Florida
[451]
Bernard E. Garmire
Chief of Police for the
City of Miami
1145 N.W. 11th Street
Miami, Florida
Alan H. Rothstein
City Attorney
Larry J. Hirsch,
Asst. City Attorney
65 S.W. 1st Street
Miami, Florida 33130
66
Jason Berkman
Justice of the Peace
407 Lincoln Road
Miami Beach, Fla. ~
David Maynard
Chief of Police for the
City of Hialeah
Hialeah, Florida
Jack R. Blumenfeld, Esq.
Asst. State Attorney
1351 N.W. 12th Street
Miami, Florida 33125
/s/ Barry Scott Richard
BARRY SCOTT RICHARD
Chief Assistant Attorney General
Miami Division
67
[469]
[TITLE OMITTED]
[Filed July 16, 1971]
MOTION FOR SEPARATE TRIALS AND —
TRANSFER OF PARTIES AND MEMORANDUM
Defendant, Charles H. Snowden, hereby joins in the
Motion of defendants James Rainwater, Ruth Sutton, and
Sylvester P. Adair and plaintiffs, for separate trials on
the issues of preliminary hearings and bail and to transfer
said defendants from party-defendants to party-plaintiffs
on the issue of preliminary hearings and defendant,
Charles H. Snowden, hereby adopts the Memorandum filed
with said Motion.
ROBERT L. SHEVIN
Attorney General
/s/ Barry Scott Richard
BARRY SCOTT RICHARD ~
Chief Assistant Attorney General
1350 N.W. 12th Avenue, Rm 530
- Miami, Florida
Attorneys for Defendant,
Charles H. Snowden
Jia —
ii lg ah? OP aah im
Detece:. Bi linen tal a DO Sie co PRO a scars tl Baa
68
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy
of the foregoing Motion was mailed to the parties listed
below, this 14th day of July, 1971.
Howard Levine and Morton S. Perry,
James Jorgensen _ Judge
1320 N.W. 14th Street 1351 N.W. 12th St.
_ Public Safety Dept., Room 440
Miami, Florida Miami, Florida
Sylvester P. Adair
Justice of the Peace
432 Washington Avenue
Homestead, Florida
[470]
Judge James Rainwater Alan Diamond, Esq.
1351 N.W. 12th St. Asst. County Attorney
Room 444 73 W. Flagler Street
Miami, Florida Miami, Florida
Judge Sidney Segall _ Phillip A. Hubbart
1351 N.W. 12th St., Public Defender
Miami, Florida 1351 N.W. 12th St.
Miami, Fla.
Ralph B. Ferguson, Jr. David Maynard
Justice of the Peace Chief of Police
2001 N.W. 7th Street City of Hialeah
Miami, Florida Hialeah, Florida
Bernard E. Garmire
Chief of Police for
City of Miami
1145 N.W. 11th St.
Miami, Fla.
Alan H. Rothstein
City Attorney
Larry J. Hirsch,
Asst. City Attorney
65 S.W. 1st Street
Miami, Florida 33130
_ Rocky Pomerance
Chief of Police-
City of Miami Beach
100 Meridian Avenue
Miami Beach, Florida
Bruce Rogow, Esq.
Legal Services of
' Greater Miami
622 N.W. 62nd St.
Miami, Fla. 33150
69
Charlies Snowden
Justice of the Peace
12210 N.W. 7th Ave.
Miami, Fla.
Ruth L. Sutton
Justice of the Peace
220 Miracle Mile
Coral Gables, Fla.
Jason Berkman
Justice of the Peace
407 Lincoln Road
Miami Beach, Fla.
Jack R. Blumenfeld, Esq.
‘Asst. State Attorney
1351 N.W. 12th Street
Miami, Florida 33125
/s/ Barry Scott Richard
BARRY SCOTT RICHARD
Chief Assistant Attorney General
2 a ARORA a aR ANN
j 70
[488]
[TITLE OMITTED]
[Filed Oct. 12, 1971]
OPINION AND FINAL JUDGMENT
Plaintiffs Robert Pug and Nathaniel Henderson
brought this class action, in which plaintiffs Thomas
Turner and Gary Faulk have intervened, seeking relief
for the alleged deprivation of their rights as secured by
the Fourth and Fourteenth Amendments to the Constitu-
tion of the United States. Jurisdiction is founded upon
28 U.S.C. 1343 (3), (4) and grows out of a Constitutional
attack (42 U.S.C. 1983) upon the procedure whereby plain-
tiffs were incarcerated, upon information filed by the
state attorney, and held for trial in Dade County, Florida,
without review by a committing magistrate of the prob-
able cause for their arrest.
The defendants herein are sued in their official
capacities (sheriff, police chiefs, state attorney, justices of
the peace and judges of small claims courts of Dade County
and several of its municipalities) as individuals charged
with the responsibility of administering the system under
which plaintiffs were incarcerated.
The plaintiffs contend that they have been deprived
of a Constitutional right to a preliminary hearing before a
judicial officer to determine whether there is probable
cause that they committed the offenses with which they
are charged.
71
Under the present procedure the state attorney (or
one of his assistants) considers the reports submitted
[489] by police officers of the results of their investiga-
tions and thereafter files a direct information and issues
a capias for arrest of the individual charged with the
offense. The person may be already in jail or is then
arrested and waits in jail until either he is released on
bond or is tried. There is no review by a judicial officer
as to the probabie cause for the arrest and detention of a
person charged by the state attorney in a direct informa-
tion.
Plaintiffs further allege they have been denied their
constitutionally protected right to equal protection of the
law in that in certain instances the police will process cases
through the offices of the justices of the peace instead of
going to the office of the state attorney as was done herein.
A justice of the peace conducts a preliminary hearing for
probable cause whereas the state attorney does not. It is
contended that the unfettered discretion of the police in
deciding whether to file criminal charges with the justice
of the peace or the state attorney, results in an arbitrary
and unreasonable creation of two classes of arrested per-
sons, those who are afforded a preliminary hearing and
those who are not.
Lastly plaintiffs contend that the setting of a mone-
tary bail bond as a condition for the release of persons
financially unable to post the bond creates two classes of
arrested persons and discriminates against poor persons,
thereby violating their right of equal protection of the law.
Plaintiffs Henderson, Turner and Faulk allege they re-
main imprisoned because of their impoverished financial
conditions.
ere |
in Pt
72
In the case of plaintiff Pugh no bond has been set
pursuant to F.S.A. Constitution, Article 1, §14 since the
main pending charge is robbery, a crime punishable by
life imprisonment, F.S.A. 813.011.
[490} On May 13, 1971 the Court, upon the request
of all counsel took the plaintiff's pending motions for
summary judgment under advisement. for the purpose of
permitting the Florida Legislature an opportunity to con-
sider pending legislation providing for the type of prob-
able cause hearing sought herein. The Legislature ad-
journed without enacting the proposed statute and this
case was set for final hearing. In the course of arguing
their respective positions during final hearing, all counsel
agree that there are no issues of fact to be resolved in this
suit and that the issues can, and should, be determined as
a matter of law.
Consistant with the philosophy of non-intervention in
state criminal procedures the Court afforded the parties
a reasonable time, subsequent to the final hearing, within
which to attempt to agree upon the implementation of a
system securing to all persons the protection of judicial
review of the probable cause for arrest. This proved fruit-
less. The time of restraint is past and the Court has no
alternative except to act.
UNDISPUTED FACTS
A person may be charged with a crime in Dade
County, Florida, in one of five ways:
(1) A police officer witnesses the commission
of a crime, places the accused under arrest and
‘ _—
73
takes him to jail. Sometime between 24 hours
and two weeks later the arresting officer files a
sworn affidavit with the office of the state attor-
ney who, then files a direct information and
issues a capias against the defendant.
(2) A police officer conducts an investigation of
an alleged criminal offense, decides he has suf-
ficient evidence to arrest, and places the defend-
ant in jail. The arresting officer then goes to
the state attorney with his affidavit and a direct
information is filed against the defendant by the
state attorney.
(3) A police officer conducts an investigation
but takes the case to the state attorney before
making the arrest and, after issuance of the di-
rect information, arrests the defendant and places
him in jail.
(4) A police officer conducts an investigation,
[491] presents the matter by affidavit to a
justice of the peace, who issues a warrant for
arrest and conducts a preliminary hearing to de-
termine probable cause as to the commission of
the alleged crime. The defendant is released if
no probable cause is found to exist.
(5) The results of an investigation are sub-
mitted by the state attorney to the grand jury,
which determines probable cause and returns an.
indictment to a judge. After review, the judge
either issues the arrest warrant and causes the
indictment to be filed or dismisses the charge.
oe
74
Under the process outlined in paragraphs 1, 2, and 3
above there is no judicial determination, prior to trial of
whether or not there is probable cause to believe that the
particular defendant under arrest did in fact, commit the
offense for which he is being held in custody. The proce-
dures outlined in paragraphs 4 and 5 provide for a prob-
able cause hearing, by a judicial officer, prior to trial
and are not therefore under attack in this litigation.
When an accused person is informed agairst by the
state attorney and arrested, processing of the information
does not begin until the arresting officer appears before
an assistant state attorney and files his affidavit of facts.
In spite of the fact that officers are urged to file their
affidavit with the state attorney as promptly as possible
periods from twenty-four hours to more than two weeks
elapse before the affidavit is filed and processing begins.
The state attorney, between January 1, 1970 and
March 31, 1971, decided not to file direct informations in
1,165 cases in which a person had been charged or ar-
rested as a result of police investigation. The majority
of these “no actions” resulted from arrests on charges
lacking sufficient evidence to justify the filing of an
information.
Obviously, a judicial officer considering probable
cause on a preliminary hearing would have promptly dis-
posed of all of these cases with a tremendous saving of
human misery (to all those who had been arrested on in-
sufficient evidence) and of tax dollars (to the average
citizen who is paying for the cost of a vastly overcrowded
jail facility in Dade County, Florida).
‘
75
[492] Once the state attorney’s office decides to file
the information a period of twenty-four to seventy-two
hours plus weekends is required to prepare the informa-
tion for filing with the Clerk of the Criminal Court of
Record. The information is then filed and set for arraign-
ment with an average delay of ten to fifteen days from
the time the arresting officer appears until the time the
defendant is arraigned.*
At no time prior to trial is a defendant who is pro-
ceeded against by information afforded a hearing to de-
termine the existence of probable cause. It is the policy
of the state attorney to oppose any attempt to secure such
a hearing.
, JURISDICTION
Where the Federal Court is asked to pass upon the
validity of state criminal procedures, the question of
jurisdiction requires careful scrutiny. Defendants urge
that the Federal Anti-Injunction Statute, 28 U.S.C. 2283,
along with the recent Supreme Court decisions in a. series
of cases led by Younger v. Harris, 401 U.S. 37, 91 S. St.
746 (1971), remove this cause from the Court’s jurisdic-
tion. See, Boyle v. Landry 400 U.S. 77, 91 S. Ct. 758,
(1971); Dyson v. Stein, 400 U.S. 200, 91 S. Ct. 769
(1971) ; Samuels v. Mackell, 400 U.S. 66, 91 S. Ct. 674
(1971); Perez v. Ledesma, 400 U.S. 82, 91 S. Ct. 674
(1971) ; Byrne v. Karalexix, 400 U.S. 216, 91 S. Ct. 777
(1971).
“Although the record does not reflect the ultimate disposition
of the direct information cases alone, it does appear that of the total
of 7.856 cases disposed of by the state attorney in 1970, there were
198 “nolle pros”, and 1,565 acquittals.
ta 6 Mie ire Paton Pe eae ay 7
76
The Anti-Injunction Statute provides that “A court
of the United States may not grant an injunction to stay
proceedings in a State Court except as expressly author-
ized by Act of Congress, or where necessary in aid of its
jurisdiction, [493] or to protect or effectuate its judg-
ments”, 28 U.S.C. §2288. The Younger case rested not
upon an interpretation of this statute and the exceptions
thereto but upon “the national policy forbidding Federal
Courts to stay or enjoin pending State Court proceedings
except under special circumstances”, 401 U.S. at 41.
Under Younger, et al as well as under the statute the
relief precluded is the enjoining of a prosecution or a
declaratory judgment with the same effect, Samuels v.
Mackell, supra. Moreover, in each of the Younger cases
the requested relief included a declaration of unconstitu-
tionality of a state substantive criminal statute. Plaintiffs
at bar ask the Court neither to declare unconstitutional a
state statute nor to enjoin a prosecution, but instead pray
for a declaration of procedural rights and an injunction
from the continued denial thereof. This case is therefore
‘ not in conflict with either Younger or 28 U.S.C. §2283.
Furthermore, even were the relief requested herein con-
sidered to be within Younger, the circumstances of this
case would come within the exceptions to that principle.
Mr.: Justice Black outlined in Younger the circum-
stances under which a Federal Court can enjoin a state
criminal proceeding. There must be a “great and imme-
diate” “irreparable injury” other than the “cost, anxiety,
and inconvenience of having to defend against a single
criminal proceeding. There must be a “great and imme-
cannot be eliminated by the defense therein, 401 U.S. at
46, S. Ct. at 751. Although Younger recognizes that .
77
jufadiction would exist where a state prosecution was
brought in bad faith or for harrassment, as in Dombrow-
ski v. Pfister, 380 U.S. 479 (1965), it is clear that these
factors are not additional prerequisites to relief but are
indicative of irreparable injury. See also Duncan v. Perez,
No. 31089, 5 Cir. June 14, 1971. [494] In describing the
harassment present in Dombrowski, the Court noted that
“[t]hese circumstances . . . sufficiently establish the kind
of irreparable injury sufficient to justify federal inter-
vention”, 401 U.S. at 48, 91S. Ct. at 752.
Plaintiffs at bar are challenging the validity of their
imprisonment pending trial with no judicial determination
of probable cause. These facts present an injury which is
both great and immediate and which goes beyond cost,
anxiety, and inconvenience. Furthermore, the state has
consistently denied the right asserted, so that the injury
_is irreparable in that it cannot be eliminated either by the
defense to the prosecution or by another state proceeding.
See Anderson v. State, 241 So.2d 390 (Fla. 1970); San-
garee v. Hamlin, 235 So.2d 729 (Fla. 1970) ; Montgomery
v. State, 176 So.2d 381 (1965) ; Bangus v. State, 141 So.2d
264 (1962)*. For the reasons stated the Court finds that
it has jurisdiction in this cause.
CONSTITUTIONAL QUESTIONS
The principal constitutional issue for determination
is, of course, whether one who is arrested and held for trial!
upon an information filed by the state attorney is entitled
to a hearing before a judicial officer on the question of
probable cause.
*The case law cited relates only to count I of the complaint.
Lengthy consideration of counts II and III is unnecessary in light of
the holdings which follow.
ae eee
ohn ad
PBA DRE 6 ne eet AE
78
The Court is faced with a unique factual situation
which does not appear to be controlled by the plethora of
cases cited by counsel. Defendants rely on Woom v. Ore-
gon, 229 U.S. 586, 33 S. Ct. 783 (1914) in which the Su-
preme Court held that an Oregon defendant who was ac-
cused by sworn complaint [495] before a committing
magistrate had no right to an examination as a condition
precedent to the filing of an information by the district
attorney. In Woom the Court was concerned with the va-
lidity of the information rather than the pre-trial deten-
tion. Furthermore, that case did not consider a procedure
resulting in lengthy detention after arrest, where neither a
sworn complaint nor an information had been filed.
It is significant that the Woom case relied on Hurtado
v. California, 110 U.S. 516, 4 C. Ct. 111 (1884) holding
that a grand jury indictment was not a prerequisite to a
felony prosecution, and stating:
. we are unable to say that the substitution
for a presentment or indictment by a grand jury
of the proceeding by information after examina-
tion and commitment by a magistrate, certifying
to the probable guilt of the defendant with the
right on his part to the aid of counsel, and to the
cross-examination of the witnesses produced for
the prosecution, is not due process of law,” (em-
phasis added) 110 U.S. at 587, 4 S. Ct. at 122.
- Numerous opinions have been cited in which this
circuit has held there is no due process right to a pre-
liminary hearing. The issue in each of those cases how-
ever, was the validity of the trial as affected by the ab-
sence of a preliminary hearing and not the validity of the
79
pre-trial detention itself. In Scarborough v. Dutton, 393
F.2d 6 (5 Cir. 1968) the Court, upholding a conviction
where the defendant had been incarcerated for seven
months without a preliminary hearing, stated, “The fail-
ure to hold a preliminary hearing, without more, does not
amount to a violation of constitutional rights which would
vitiate the subsequent conviction”. 393 F.2d at 7 (empha-
sis added). See also: Murphy v. Beto, 416 F.2d 98 (5 Cir.
1969) ; McCoy v. Wainwright, 396 F.2d 818 (5 Cir. 1968) ;
King v. Wainwright, 368 F.2d 57 (5 Cir. 1966); Worts
v. Dutton, 395 F.2d 341 (5 Cir. 1968); Kerr v. Dutton,
395 F.2d 79 (1968); ef. Hamilton v. Alabama, [496] 368
U.S. 52, 82 S.Ct. 157 (1961). :
In Anderson v. Nosser, 438 F.2d 183 (5 Cir. 1971),
even though the Court did not consider the validity of a
‘conviction, the facts were analogous to those in the fore-
going post-conviction cases. In each case cited supra the
pre-trial detention had ceased to exist, and the trial itself
being valid, there was no continuing deprivation of rights.
The confinement in Anderson occurred over a period of
two to four days with the various federal complaints being
filed from three months to fourteen months after plain-
tiffs’ release. Consequently, in Anderson, just as in the
post conviction cases the Court was asked to grant relief
‘from a deprivation of rights no longer in effect. That the
Anderson Court itself considered the case to come within’
the post conviction situation is apparent from its reliance
upon Kulyk v. U.S., 414 F.2d 139 (5 Cir. 1969), and other
cases, all of which turned upon the validity of a convic-
tion, 488 F.2d at 196. %
The instant case differs from the foregoing in that
this Court is asked to determine the validity of a present
—— EE wo ee ee Oo
4
Ei ate ail D CD ha Hf ed Ne a Ne A 8k
80
confinement. The complaint herein was filed during plain-
tiffs’ incarceration. Unlike Anderson, .the confinement
at bar is not an isolated event but is a recurring part of
the state sanctioned prosecutorial system. Unless corrected
the wrong complained of will continue to infringe upon
the rights of the individyal plaintiffs and the class they
represent.
A criminal system wherein the: individual faces pro-
longed imprisonment upon the sole authority of the police
and/or prosecutor violates the principles which underly
- this country’s founding and which are the essence of the
constitutional guarantees of freedom from unreasonable
seizure and from deprivation of liberty without due proc-
ess of law.
[497] The danger inherent in a system of this kind
was described by Mr. Justice Frankfurter in McNabb v.
United States:
[Legislation requiring that arrested persons be
promptly taken before a committing authority,
appears on the statute books of nearly all of the
states.
The purpose of this impressively pervasive re-_
quirement of criminal procedure is plain. A
democratic society, in which respect for the dig-
nity of all men is central, naturally guards
against the misuse of the law enforcement proc-
ess. Zeal in tracking down crime is not itself an
assurance of soberness of judgment. Disinter-
estedness in law enforcement does not alone pre-
vent disregard of cherished liberties. Experience
ee
has therefore counseled that safeguards must be
provided against the dangers of the overzealous
as well as the despotic. The awful instruments of
the criminal law cannot be entrusted to a single
functionary. The complicated process of criminal
justice is therefore divided into different parts,
responsibility for which is separately vested in
the various participants upon whom the criminal
law relies for its vindication. Legislation such as
this, requiring that the police must with reason-
able promptness show legal cause for detaining
arrested persons, constitutes an important safe-
guard — not only in assuring protection for the
innocent but also in securing conviction of the
guilty by methods that commend themselves to a
progressive and self-confident society. 318 U.S.
332, 343-44, 63 S. Ct. 608, 614 (1943).
Over forty years ago the Florida Legislature (1939)
enacted a statute requiring any officer arresting without
a warrant to take the defendant before a committing mag-
_ istrate without unnecessary delay, F.S.A. 901.23. Thus we
see the requirement for a preliminary hearing is not a new
- innovation in the law of the State of Florida.
The Fourteenth Amendment provides that no state
shall deprive any person of liberty without due process of
law. The fundamental requisite of due process of law is
the opportunity to be heard. Grannis v. Ordean, 234 U.S.
385, 34 8. Ct. 779, (1914). “It is an opportunity which
must be granted at a meaninguful time and in a meaning-
ful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85
S. Ct. 1187, 1191 (1965).
SS
82
[498] It has been held that a hearing must he given before
a drivers license and vehicle registration can be suspended,
Bell v. Burson, 91 S. Ct. 1586 (1971) ; Salkay v. Williams,
No. 30090 (5 Cir. June 22, 1971); before prohibiting the
sale of liquor to an individual for one year, Wisconsin v.
Constantineau, 400 U.S. 433, 91 S. Ct. 507; before termina-
tion of welfare payments (even though a subsequent hear-
ing was afforded), Goldberg v. Kelly, 397 U.S. 254, 90
S. Ct. 1011 ‘{1970); before garnishment of wages (even
though there was a subsequent trial), Snidach v. Family
Finance Corp., 395 U.S. 337, 89 S. Ct. 1920 (1969) ; be-
fore a thirty day suspension from a public school, Williams
v. Dade County School Board, 441 F.2d 299 (5.Cir. 1971);
before refusal of admission to public hospital staff, Sosa
v. Board of Managers, 437 F.2d 173 (5 Cir. 1971); and
before termination of employment on college faculty, Fer-
guson v. Thomas, 430 F.2d 852 (5 Cir. 1970). It would
appear beyond question that due process demands a pre-
liminary hearing within a reasonable time after an ac-
cused has been deprived of his freedom.
In Goldberg v. Kelly, the-Court summarized the test
for providing procedural due process as follows:
The extent to which procedural due process must
be afforded the recipient is influenced by the ex-
tent to which he may be “condemned to suffer
grievous loss.” Joint Anti-Facist- Refugee Com-
mitte-v. McGrath, 341 U.S: 123, 168, 71 S. Ct.
624, 647, (1951) (Frankfurter J., concurring),
and depends upon whether the recipient’s interest
in avoiding that loss outweighs the governmental
interest in summary adjudication. 397 U.S. 254,
262-63, 90 S. Ct. 1011, 1017-18.
83
In this case the grievous loss is that one’s freedom and
the countervailing governmental interest is that of the
state in avoiding the burden of preliminary hearings.
Although the state may incur additional expense in ex-
panding its existing committing system to include hearings
for direct information cases, this expense will be more than
offset by the savings in jail and [499] trial costs regarding
those persons heretofore jailed and/or tried without prob-
able cause. Moreover, these financial considerations are so
grossly overbalanced by the prolonged loss of freedom by
innocent persons that further comment is unnecessary.
The taxpayers of this community have labored under
a near intolerable burden of the spiraling cost of combat-
ing crime. The expense of maintaining 2. jail, with many
persons who would never be there in the rir: instance
if their case had been reviewed by a judge in an o“fective
committing magistrate system, will be substantially less
than its present cost and will certainly be a tangible bene-
fit to all citizens of this community.
A preliminary hearing in direct information cases is
compelled by the Fourth Amendment, as well as by the
Fourteenth Amendment.
The Fourth Amendment provides that “The right of
the people to be secure in their persons . . . against un-
reasonable searches and seizures, shall not be violated, and
no warrants shall issue but upon probable cause, supported
by oath or affirmation . . .” It has been established that
this amendment is operable upon the states via the due
process clause of the Fourteenth Amendment, Mapp. v.
Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961) and that it
ft
>
Cetin nina tometer didi aaeee
ia oe hte a ntact! ait Hast ipo
84
applies to arrest warrants as well as to search warrants.
Giordenello v. U.S., 357 U.S. 480, 78 S. Ct. 1245 (1958).
The existence of a Fourth Amendment right to a
probable cause hearing has been recognized in two opinions
of the Court of Appeals for the District of Columbia Cir-
cuit. In Cooley v. Stone, 134 U.S. App. D.C. 317, 414 F.2d
1213 (1969) the Court held that a juvenile in the custody
of a detention home had the right to a probable cause hear-
ing and cited approvingly the following language of the
lower court:
[500] No person can be lawfully held in penal
custody by the state without a prompt judicial
determination of probable cause. The Fourth
Amendment so provides and this constitutional
mandate applies to juveniles as well as adults.
414 F.2d at 1213.
In Brown v. Fauntleroy, 442 F.2d 838 (1971) the Court
found that the same right applied to a juvenile released
pending trial to the custody of his mother. In that. opin-
ion the Court emphasized that the basis of the right was
in the Constitution @nd not in the Federal Rules of Crim-
inal Procedure. Of the fact that the accused was not in
physical state custody the Court said;
“(T)he right to be free of a seizure made with-
out probable cause does not depend upon the
character of the subsequent custody. Appellant
accordingly has the right to have the validity
of the seizure determined since he will be called
to trial for conduct which led to the seizure.”
442 F.2d at 842.
> a certian aetna en
85
Recently the Supreme Court overturned a State Court
conviction based upon evidence seized under a search war-
rant issued by the state attorney general who was the
chief investigator and prosecutor in the case. The war-
rant was held to be invalid under the Fourth and Four-
teenth Amendments because not issued by the “neutral
and detached magistrate required by the Constitution”,
Coolidge v. New Hampshire, 400 U.S. 814, 91 S.ct. 2022
(1971). If a prosecuting official cannot properly issue a
search warrant in a case he is prosecuting, then he is a
fortiori not a proper person for determining the existence
of probable cause to hold an accused for trial.
The Court finds that under the Fourth and Four-
teenth Amendments, arrested persons, whether or not re-
leased on bond, have the constitutional right to a judicial
hearing on the question of probable cause.
Count II alleges that the system which denies a pre-
liminary hearing to plaintiffs’ class while granting [501]
a hearing to other criminal defendants is violative of the
right to equal protection of the law. Because of the Court’s
holding that in all direct information cases the accused
must be given a hearing as a right of due process and
freedom from unreasonable seizure, it is unnecessary for
the Court to determine whether the prior system was in-
valid for failure to afford equal protection of the law.
See Troy State University v. Dickey, 402 F.2d 515 (5 Cir.
1968).
Plaintiffs contend in count III that where an accused
is financially unable to post the required security for his
release pending trial there exists an arbitrary and un-
reasonable classification based solely upon wealth in viola-
A ate OO bee 6 A etree
Bradsoas..
LOR EE TR Cig e et
86
tion of the right to equal protection of the law. The record
establishes that it is the policy of defendants to set bonds
sufficiently low to allow accus?d persons their release
while assuring their subsequent appearance at trial. The
severity of the crime along with the accused’s ties to the
community, past criminal record, and financial resources
are all considered in the setting of bonds. There is no
allegation that any bond in question was set in excess of
that which the judiciial officer deemed necesary to assure
trial appearance.
In contending that they are denied release solely
because of their poverty, plaintiffs ignore the other factors
distinguishing them from released persons. The record
shows that plaintiffs’ confinement is not the result ‘of a
classification based solely upon wealth, consequently they
have not been deprived of their right to -equal protection
of the law. — .
The Court recognizes the cooperative attitude of the
state authorities and their desire to comply with the law.
Obviously they are the individuals most qualified to develop
the new procedures required by this order. It is hereby
suggested that the assistance of Presiding Circuit Judge
Marshall C. Wiseheart in the implementation of this
[502] this order would be helpful. It is therefore,
ORDERED and ADJUDGED:
1. That this is a valid class action brought pursuant
to Rule 23 (b) (2), Federal Rules of Civil Procedure, on
behalf of all persons arrested in Dade County who are or
will be proceeded against by direct information of the state
attorney.
87
2. The named plaintiffs shall immediately be given
a preliminary hearing to determine probable cause for
their arrest by a committing magistrate unless their cases
have been otherwise concluded. ,
3. That defendants shall, within 60 days of the date
hereof, submit to the Court a plan providing for pre-
liminary hearings before a judicial officer empowered to
act as committing magistrate in all cases wherein prosecu-
tion is to be upon direct information. The preliminary
hearing shall be within a reasonable time of the arrest.
4. Subsequent to final hearing certain motions for
summary judgment, severance and transfer of party de-
fendants to party plaintiff were filed. These motions be
and the same are hereby denied.
' 5. The Court retains jurisdiction for a consideration
of the plan and enforcement of the provisions of this
final j»dgment.
DONE and ORDERED in chambers at Miami, Flor-
ida, this 12th day of October, 1971.
/s/ James Lawrence King
JAMES LAWRENCE KING
UNITED STATES .
DISTRICT JUDGE
ec: Counsel of Record
ee 9 dS AYO ORS ROA Tae RINE aN
88
[542]
[TITLE OMITTED]
[Filed January 25, 1972]
ORDER ADOPTING PLAN
TO PROVIDE PRELIMINARY HEARINGS
In its Opinion and Final Judgment in this cause
entered October 12, 1971, the Court directed defendants
to submit a plan providing for preliminary hearings
before a judicial officer in all criminal cases in Dade
County wherein prosecution is to be upon direct infor-
mation of the State Attorney. A single plan having been
submitted, that being on behalf of Defendant E. Wilson
Purdy, and the Court having provided all parties with
the opportunity for oral argument regarding said plan,
it is
ORDERED AND ADJUDGED: ©
I. That the aforesaid plan, as modified by the Court,
shall be the official plan for implementation of the Court’s
final judgment, said modified plan being as follows: |
1. The purpose of this plan is to provide every
arrested person (hereinafter defendant) who is to [543]
be proceeded against by direct information of the State
Attorney immediate access to a committing Magistrate
who shall conduct a first appearance hearing for the fol-
lowing purposes: (A) To advise the defendant of the
charges against him; (B) To advise the defendant of his
rights under the Constitution of the United States and
the Constitution of the State of Florida; (C) To appoint
89
counsel if the defendant is indigent; (D) To set a date
and time for a preliminary hearing to determine whether
there is probable cause that the defendant committed the
offense with which he is charged.
2. All procedings will be conducted pursuant
to Florida Statutes, the Florida Rules of Criminal Proce- .
dure and the applicable case law.
8. All arrested persons who are subject io
“booking” will be booked at the Metropolitan Dade County
Jail.
4, All officers who make an arrest, with or
without a warrant, shall immediateiy take the arrested
person, or where that is not feasible cause him to be taken,
before a Magistrate for a first appearance hearing. Ab-
sent extreme circumstances said hearing shall take place
within three (3) hours of the time the defendant is taken
into custody.
5. The Chief Judge for the Eleventh Judicial
Circuit in and for Dade County shall designate sufficient
Judges, who will sit as a committing magistrate division.
6. A committing magistrate will be available
for first appearance hearings on a twenty-four (24) hour
basis seven (7) days per week.
[544] 7. All first appearance hearings will be held
in the courtroom or chambers of the designated committing
magistrate.
in A 5d
Derr An.
90
8. At the first appearance hearing the magis-
trate will set the time and place for a preliminary hearing
to determine whether there is probable cause to hold the
defendant for trial. If both the State of Florida, repre-
sented by the office of the State Attorney, and the defend-
ant, properly represented by counsel, are prepared to pro-
ceed with tho preliminary hearing, the magistrate shall
immediately conduct such a hearing. If either party is not
prepared for the preliminary hearing said hearing shall
not be set to take place within a period of twenty-four
(24) hours after the first appearance hearing unless the
parties agree to a time within that period. Except in ex-
treme circumstances the preliminary hearing will be set
to take place not more than four (4) days after the first
appearance hearing for all defendants who are unable to
post bond and do not qualify for the Pre-Trial Release
Program and not more than ten (10) days after the first
appearance hearing for all other defendants.
¢
9. A defendant may waive his right to a pre-
liminary hearing or agree to a hearing date that is later
than the time hereinabove set forth, provided that such a
waiver is signed by the accused and his legal counsel, if
any.
10. There wiil be provided sufficient assistant
state attorneys available at the first appearance hearing
and at the preliminary hearing to assist officers in draft-
ing the charges against the arrested person and to other-
wise represent the position of the State of Florida at said
proceedings.
[545] 11. There will be provided sufficient assistant
public defenders to represent, both at the first hearing
91.
and at the preiiminary hearing, those persons who are
entitled to public representation.
12. The magistrate shall allow the defendant a
reasonable time to obtain counsel and for such purposes
shall, if necessary, postpone setting the preliminary hear-
ing for a period not to exceed forty-eight (48) hours. He
shall also, upon request of the defendant, require an offi-
cer to communicate a message to such_counsel in Dade
County as the defendant may name. The officer shall with
diligence and without cost to the defendant perform that
duty. If the defendant desires private counsel and private
counsel cannot be obtained within a reasonable time the
magistrate shall continue the cause and release the defend-
ant on his own recognizance, in the custody of another or
on bond, or the magistrate may order incarceration of the
defendant. If incarceration is ordered, the magistrate must
immediately schedule a preliminary hearing to be held
within four (4) days. If the magistrate finds the defend-
ant to be indigent, he shall appoint a public defender to
represent him.
13. Upon information or complaint under oath
the magistrate may arraign the defendant and may accept
a plea of guilty or nolo contendere to any offense within
the jurisdiction of the Court. If the charged offense is not
within the jurisdiction of the Court the magistrate shall
set a hearing for the purpose of accepting the plea before
a Court with appropiate jurisdiction.
‘14. Preliminary hearings may be held in any
court of competent jurisdiction, such location is to be set
by the magistrate at the time of the first appearance
hearing.
Piieiiiheisiscirins
BOLL CALA LOAD, PRATER EEA SP Ea Pa AI OLED EIS IBS A 0 AG REA PIT
92
i546] 15. The magistrate, where he has appropriate
jurisdiction, may, upon appropriate plea, sentence any
defendant either at the first appearance or at the prelim-
inary hearing.
16. If, at the time of the preliminary hearing,
it appears to the magistrate that there is probable cause
that an offense has been committed and that the defend-
ant committed it, the magistrate shall forthwith order the
defendant to answer to the Court having trial jurisdiction;
otherwise the magistrate shall discharge the defendant.
17. If the magistrate discharges the defendant,
the defendant shall not be required to answer to a sub-
sequent charge for the same offense(s) except upon an
indictment by the Grand Jury which shall have been re-
turned within thirty (30) days of the defendant’s dis-
charge.
18. If the magistrate orders the defendant to
answer to the Court having trial jurisdiction, he may
release the defendant on his own recognizance, in the
custody of another, or on bond, or he may order the de-
fendant to be incarcerated. For purposes of the prelim-
inary hearing the magistrate shall issue such process as
may be necessary to secure the attendance of witnesses
within the state for the state or the defendant. All wit-
nesses shall be examined in the presence of the defendant
and may be cross examined. At the conclusion of the testi-
mony for the prosecution, the defendant shall, if he so
elects, be sworn and testify in his own behalf and in such
a case he shall be warned in advance by the magistrate
that anything he may say can be used against him at a
subsequent trial. He may be cross examined and whether
RARER Nee se et ROR en BE PDO ATR OG A LY EAB: Ni MRD OLN ian
93
he testified or not any witness produced by him shall be
sworn and examined.
[547] Prior to the examination of any witness in the
cause the magistrate may, ard on request of the defendant
shall, exclude from the courtroom all other witnesses who
have not yet testified. The magistrate may cause the wit-
nesses to be kept separate and prevented from communi-
cating with one another until all are examined. |
At the request of the prosecuting attorney or the
defense attorney the testimony of the witnesses and the
defendant, if he testified, shall be recorded verbatim sten-
ographically or by mechanical means and shall be tran-
scribed, and furnished to the requesting attorney. If the
testimony or any part thereof is transcribed at the request
of either party, a copy of such testimony shall be furnished
at cost to the other party. If the defendant is indigent,
transcriptions shall be furnished free of cost upon request
by the defense attorney.
When the magistrate has discharged the defend-
ant or held him to answer he shall transmit within forty-
eight (48) hours thereafter to the clerk of the court having
trial jurisdiction of the offense the following information
as applicable:
(a) The name of the incarcerated person await-
ing trial, the date of incarceration and the
charge.
(b) The complaint and the warrant.
ae se nese cs eric cette ti Rms
Bpisctscetisics.
[548]
94
(c) The written testimony of the witnesses if
transcribed and filed. .
(d) The recognizance or undertaking for the
appearance of the defendant. ¢
(e) A copy of the order discharging or holding
the defendant.
(f) Every article, writing, money or other ex-
hibits received in evidence provided, how-
ever, that such article, writing, money or
other exhibits so used in evidence before
said magistrate may be returned to the
owner thereof upon a written order of the
magistrate unless the State objects thereto
in which case the trial Court will resolve the
issue.
19. The following sanctions shall be imposed for
failing to bring the defendant before a committing magis-
trate and/or for failure tw hold a preliminary hearing:
(1) If, within twenty-four (24) hours after a
defendant’s arrest, a first appearance has not
been held and/or a magistrate has not set bail
for a defendant charged with an offense bailable
as of right, the defendant shall immediately be
released on his own recognizance.
(2) Ifa defendant is not afforded a preliminary
hearing within the applicable period set forth in
paragraph (8) herein and the hearing is not
properly postponed or waived, then all charges
95
shall be withdrawn and the defendant, if incar-
cerated, shall immediately be released. The State
shall be permitted to refile a charge so with-
drawn, however, in the event a charge is twice
withdrawn pursuant to this [549] provision, the
defendant shall not again be held to answer to
that charge except upon an indictment of the
Grand Jury returned within thirty (30) days of
the date of the second withdrawal.
Postponements may be granted in accordance
with the Florida Rules of Criminal] Procedure
after notice to the parties and an opportunity to
be heard.
20. Incase of conflict between this plan and
applicable Florida Statutes, Florida case law, or the Flor-
ida Rules of Criminal Procedure the three last mentioned
authorities will apply to the extent that they are not
inconsistent with the Court’s Opinion and Final Judg-
ment of October 12, 1971.
21. In order to accomplish the purposes of this
plan the details herein may be altered as required to keep
the system functioning without further approval by this
Court.
22. This plan is not intended to apply to vio-
lations charged under the various municipal codes.
23. Each law enforcement agency will be re-
sponsible for the transportation of its own prisoners and
it is not anticipated that this is a responsibility of Metro-
politan Dade County.
| Seer ait oats anh eae 8
96
24. This plan shall be put into effect within
ninety (90 days from the date of this order.
II. The Motion of Defendant Gerstein for Rehearing
and/or Clarification be and the same is hereby denied.
DONE AND ORDERED in Chambers at. Miami,
Florida this 25 day of January, 1972.
/s/ James Lawrence King
© James Lawrence King
UNITED STATES
DISTRICT JUDGE
97
[1]
Copy to: Judge King
71-448-CIV-JLK
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 72-1585
ROBERT PUGH and NATHANIEL
HENDERSON, ET AL,
v.
JAMES RAINWATER, ET AL.
Appeal from the United States District Court
for the Southern District of Florida
(OCTOBER 24, 1972)
Before BROWN, Chief Judge, TUTTLE and
INGRAHAM, Circuit Judges.
PER CURIAM:
It appearing that the order of the trial court in this
case was stayed pending appeal by a panel of this court,
and the case having now been argued :n open court and
submitted, it is now
ORDERED that the stay heretofore entered is her eby
VACATED.
PMS Cee LALA +
98
It having been made to appear on oral argument that,
with the substantial acquiescence of the Attorney Geieral
of the State of Florida, measures have now been instituted
to afford some of the relief relating to hearings to deter-
mine probable cause for arrest of members of the class
represented by named plaintiffs, the trial court is directed
to compare in detail the plan incorporated in its order
with the present practice, and make specific findings in
which it determines to what extent the present practice
falls short of mec.iing constitutional requirements. A copy
of its [2] findings shall be furnished to counsel and to
this court.
Pending the completion of such inquiry, the trial
court may put into effect such parts, of its plan as are
consistent with the proposed plan spapittd to the court
by Sheriff Purdy. «
A. true copy
Test: EDWARD W. WADSWORTH
Clerk, U.S. Court of Appeals, Fifth Circuit
By /s/ Carol A. Gaudet
Deputy
New Orleans, Louisiana
a OCT 24 1972
PRN ea a SONAR INTESTINE ELA, MENS MCR 2 SERN DOR AL en and ay onde Co eee ae a
| .
99
[3]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
No. 71-448-Civ-JLK
ROBERT PUGH and NATHANIEL HENDERSON,
on their own behalf and on behalf of all others
similarly situated, et al,
Plaintiffs,
vs.
JAMES RAINWATER. et al,
s Defendants.
FINDINGS AND CONCLUSIONS RELATIVE
THE COMMITTING MAGISTRATE SYSTEM
OF DADE COUNTY, FLORIDA
‘ [Filed February 16, 1973]
I
HISTORY
This action brought almost two years ago by Florida
prisoners held for trial without ever having received an
impartial judicial determination of probable cause for their
detention, now comes before the court for detailed find-
ings on the extent to which present state practice falls
short of meeting constitutional requirements. In an order
of October 12, 1972, this court initially ruled that both
the fourth amendment and the due process clause of the
fourteenth amendment require a prompt hearing before
Divi rsisccriememes ror
100
a neutral and detached judicial officer for individuals
held-for trial solely upon an information filed by a single
state attorney. Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.
Fla. 1971).
The court allowed defendants both before and after
that ruling an opportunity to voluntarily bring Florida
practice into compliance with basic constitutional stand-
ards. After this case was initiated on March 22, 1972, the
court permitted the pre-trial schedule to be protracted in
order that the 1971 Florida Legislature might have an
opportunity to consider and act upon the issue. Likewise,
the court’s [4] October 25 order postponed the question
of implementation to provide all defendants 60 days within
which to avail themselves of the opportunity to submit
proposals concerning what sort of system for providing
prompt preliminary hearings by an impartial judicial
officer should be adopted in Dade County, Florida. The
only proposal submitted in response to the court’s mandate,
(which came from defendant E. Wilson Purdy, Sheriff of
Dade County) suggested the creation of acommitting
magistrate system.' In the absence of alternative proposals,
the Purdy Plan, as it came to be known, was substantially
adopted on January 25, 1972 after careful deliberation by
the court. Pugh v. Rainwater, 336 F.Supp. 490 (S.D.Fla.
1972).
Implementation of the Purdy Plan was delayed at the
request of defendants for 90 days to permit adequate time
for necessary administrative arrangements. State Attor-
ney Gerstein’s subsequent request that the court further
‘Defendant State Attorney Gerstein adopted Sheriff Purdy’s plan,
while reserving his right to pursue appellate remedies.
re
>
101
delay compliance, pending eompletion of an appeal; was
denied. The Fifth Circuit Court of Appeals granted the
requested stay by order of March 31, 1972. :
Despite the Fifth Circuit stay, the Dade County judi-
ciary officials moved voluntarily in the hiatus during
appeal to establish their own plan for providing prelim-
inary hearings. To effectuate this court’s implementation
order, a Committing Magistrate Rules Committee was
formed by administrative order of Chief Judge Marshall
C. Wiseheart of the Eleventh Judicial Circuit of Florida
on March 13, 1972. After the stay had been issued, how-
ever, the work of the committee independently bore fruit
as an administrative [5] order of the Chief Judge created
a committing magistrate system on April 15, 1972, which
provided a limited right to a preliminary hearing. Although
the requirements of the Dade County Magistrate System
did not entirely conform with those of this court’s order
or those of the Purdy Plan, the differences are now moot |
in view of subsequent developments.” In retrospect, it is
only unfortunate that in spite of our efforts to secure
alternative proposals, the court did not have the opportu-
nity to consider the plan actually implemented.
The signa] development, however, came with the issu-
ance of Amended Rules of Criminal Procedure by the
Florida Supreme Court on December 6, 1972. The Amended
Rules, which took effect February 1, 1973, contain many
af the safeguards contained in this court’s plan of January
25, 1972, including provision for preliminary hearings
7It should be noted; although defendant State Attorney Gerstein
acquiesced in the committing magistrate system, he reserved the Tight
to continue to file direct informations with the Clerk of the Criminal
Court of Record.
Bic
102
under a committing magistrate system. The State Supreme
Court has once again demonstrated that it is not blind to
the continued violation of 40-year old state statutes requir-
ing an arresting officer to take the defendant before a
committing magistrate without unnecessary delay. Fla.
Stat. § § 901.06 901.23 (1971) (originally enacted as Law
of June 12, 1939, ch. 19554, §§ 6, 23, [1939] Fla. Laws
1300); see e.g. State ex rel. Carty v. Purdy, 240 So.2d
480 (Fla. 1970); Milton v. Cochran, 147 So.2d 137 (Fla.
1962).
Upon hearing oral argument on October 18, 1972, in
the appeal, the Fifth Circuit entered an order of October
24, [6] vacating its stay of our January 25, 1972 order,
directing this court to make specific findings on the con-
stitutional deficiencies of present practice, and authorizing
the implementation of the Purdy Plan.’ In accordance with
that mandate, a hearing was set for November 16, 1972,
but delayed at the request of defendants until January 18,
3The Fifth Circuit order stated:
“(I]t is now
“ORDERED that the stay order heretofore entered is hereby
VACATED.
“It having been made to appear on oral argument that with
substantial acquiescence of the Attorney General of the Strte
of Florida, measures have now been instituted to afford
some of the relief relating to hearings to determine probable
cause for arrest of members of the class represented by
named plaintiffs, the trial court is directed to compare in
detail the plan incorporated in its order with the present
practice, and make specific findings in which it determines
to what extent the present practice falls short of meeting
constitutional requirements. A copy of its findings shall be
furnished to counsel and to this court.
“Pending the completion of such inquiry. the trial court may
put into effect such parts of its plan as are consistent with
the proposed plan submitted to the court by Sheriff Purdy.”
. Fe Cn 1 ip MELE HPRLDCOSIAY EA AOI: Oe A NOE Ad a 4) Cha
103
1973. On the basis of the presentations of the parties and
amicus curiae Dade County Bar Association at that hear-
ing, the following findings of fact and conclusions of law
are hereby entered.
The parties agreed and stipulated to the premise, in
which the court concurs, that the mandated assessment of
present practices must concern itself with state procedures
after February 1, 1973, under the Florida Rules of Crim-
inal Procedure as now amended. The parties further
agreed and stipulated that, so viewed, only four aspects
of present [7] practice differ from the court’s plan of
January 25, 1972, and remain to pose issues of constitu-
tional dimension in this case.
II
THE PRESENT PRACTICE WHICH PER-
MITS THE STATE ATTORNEY TO FILE
AN INFORMATION AND OBVIATE THE
REQUIREMENTS OF A DETERMINATION
OF PROBABLE CAUSE BY A NEUTRAL
AND DETACHED MAGISTRATE DIFFERS
FROM THE COURT’S PLAN AND VIO-
LATES THE FOURTH AMENDMENT AND
THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT
Rule 3.131(a) of the Florida Rules of Crimina] Pro-
cedures states:
“A defendant, unless charged on an information
or indictment has the right to a preliminary
hearing on any felony charge against him.
PE Re etd PS AP TS BOOP BIS PO
~
Bese. sonia
104
The Rule is consistent with the longstanding law of Flor-
ida. State ex rel. Hardy v. Blount, 261 S.2d 172 (Fla.
1972).
The validity of this practice, which permits the State
- Attorney to be the sole arbiter of probable cause, has
always been the main issue in this case.
Not only does the present practice permit the State
Attorney to block a preliminary hearing, it also allows him
to overrule a determination of no probable cause made by
a magistrate by refiling an information. Therefore the
whole preliminary hearing system is really conditioned
upon the desires of the State Attorney. If he files an
information prior to the preliminary hearing, none will
take place. If he files an information after a magistrates
detached and impartial determination of no probable
cause, the accused may remain in jail until trial.
This practice cannot be reconciled with the constitu-
tional requirement of the due process clause of the four- —
teenth amendment and the fourth amendment. The con-
tinuation of the practice is in clear conflict with the plan
previously entered by the court and with the original
decision of the court.
[8] In addition to the cases relied upon in that decision
(at 336 F.Supp. 1107 et. seq.), recent Supreme Court
decisions confirm that the deprivation of liberty caused
by the prosecuting attorney without any judicial review
is unconstitutional. See: Morrissey v. Brewer, ____ U.S.
___.. 92 S.Ct. 2503 (June 29, 1972;) Fuentes v. Shevin,
92 U.S. 1983 (June 12, 1972): Stanley v. Illinois,
HS. —, 2 S.Ct. 1208 (April 3, 1972); Shadwick v.
a
105
City of Tampa, ____ U.S. ___, 92 S.Ct. 2119 (June 19
1972), and United States v. United States District Court,
—— US. ___, 92 S.Ct. 2125 (June 19, 1972).
ITI
THE PRESENT PRACTICE WHICH EX-
CLUDES MISDEMEANANTS FROM A PRE-
LIMINARY HEA XING DIFFERS FROM THE
COURT’S PLAN AND VIOLATES THE
FOURTH AMENDMENT AND THE DUE
PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMEND-
MFNT.
Rule 3.13(a) of the Florida Rules of Criminal Pro-
cedure, as amended, authorizes hearings before a neutral
and detached judicial officer only “on any felony charge.”
Thus, misdemeanants need not be afforded a preliminary
hearing under the present practice, despite the fact that
the preliminary hearing provisions of the amended rules
provide the only guarantee of prompt determinations of
probable cause. Consequently, the accused misdemeanant
reniains unprotected by present practices against depriva-
tion of his liberty. As the court’s original opirion made
clear, this deprivation of liberty is particularly unjusti-
fiable as a denial of due process for those misdemeanants
who remain in custody without bond. Pugh v. Rainwater,
332 F.Supp. 1107 (S.D.Fla.1971): ef. Morrissey vy.
Brewer, __ U.S.____, 92 S.Ct. 2593 ( 1972). The Court’s
plan to effectuate its original order, as well as the proposal
of Sheriff Purdy, therefore made no distinction between
felony cases and mis [9] demeanors.
te,
106
However, it is well-settled that ‘once it is determined
that due process applies, the question remains what
process is due.” Morrissey v. Brewer, 92 S.Ct. 2593, 2600
(1972). and that the process due depends on the extent
to which an individual will be “condemned to suffer
grievous loss.” Joint Anti-Fascist Refugee Comm. v. Mc-
Grath, 341 U.S. 123, 168 (1951) (Frankfurther J., con-
curring), quoted in Goldberg v. Kelley, 397 U.S. 254, 263
(1970).
Although we think it clear that the deprivation to
misdemeanants held in custody unable to meet their bond
requires a prompt neutral probable cause determination,
the question becomes more difficult as applied to misde-
meanants out on bond and those who are charged with
violating county ordinances which carry no penalty of
imprisonment. We have therefore taken our cue from the
Supreme Court in Argersinger v. Hamlin, 92 S.Ct. 2006
(1972) and concluded that a neutral determination cf
probable cause is required by the fourth amendment for
all misdemeanants who face potential imprisonment.
However, we are unable te conclude that either due
process or the fourth amendment requires a probable cause
determination by a judicial officer for those misdemean-
ants accused of violations which carry no possible impris-
onment. See Shadwick v. City of Taimpa. We think that
misdemeanants within this category can properly be
screened by a State Attorney for the very reason that his
office is not fundamentally concerned with the prosecu-
tions of the barking dog variety, but screens them as a
general rule at the request of complaining citizens.
=
a
Beene fea rares
as TREE LIONEL I CERIN SNE OUR RR cite
107
Thus, the State Attorney may not constitutionally
obviate preliminary hearings where a potential term of
con[10]finement faces the misdemeanant.
The present practice, as embodied in tht: amended
rule, suffers from an additional shortcoming. It creates
a classification, based solely on the type of offense, which
deprives accused misdemeanants, but not accused felons,
of a right long recognized as “fundamental”: the right
not to be deprived of liberty without due process of law
and consistent with the fourth amendment. Thus, although
classification of crimes is ordinarily a matter left largely
to the states, this categorization touches upon a right
“that the court has come to regard as fundamental and
that demand[s] the lofty requirement of a compelling
governmental interest” to justify it. In re Kras, 41
U.S.L,.W. 4117, 4121 (January 10, 1973), citing Shapiro v.
Thompson, 394 U.S. 618, 688 (1969).
Two such state interests were advanced by defend-
ants with the voluntary cooperation and testimony of the
Hon. John A. Tanksley, Chief Judge of the Magistrate
Division of the Eleventh Judicial Circuit, as sufficiently
compelling to justify the classification. First, the state’s
interest in assuring misdemeanants a fair and impartial
trial. Judge Tanksley testified that Justice Adkins of the
Florida Supreme Court wished to inform the court that
although the advisory committee which formulated +he
amended rules had recommended that preliminary hear-
ings be afforded misdemeanants, the Florida Supreme
Court had demurred from so: providing because of its
concern that the same magistrate who determined prob-
able cause in a misdemeanor case might end up trying
that very case thereby denying the defendant a fair and
|
108
impartial trial. Although the state’s interest in providing
fair and impartial fact-finders is doubtless both a laudable
and compelling one, Judge Tanksley went on to testify
that preliminary hearings and misdemeanor trials are
conducted by [11] separate panels of judges under the
present practice in Dade County. While he could not
speak for practice in the remainder of the state, we are
not in this suit faced with practices outside Dade County.
The second compelling interest suggested by defend-
ants was that of expense to the state to provide prelimi-
nary hearings for misdemeanants Judge Tanksley testi- -
fied that if the five Dade County Judges assigned as
magistrates were to provide preliminary hearings for
misdemeanors as well as felonies their caseload might in-
crease by as much as 30 to 35,000 cases a year, or ap-
proximately 3,000 a month. He acknowledged, however,
that these projections represented an upper limit, and
that figure might be considerably reduced in practice due
to waivers of preliminary hearings and guilty pleas. He
also acknowledged that a large part of the misdemeanor
caseload consists of county penal violations, formerly
heard by justices of the peace, which are now classified
as misdemeanors as a result of the state court reorganiza-
tion act. He characterized these as the “barking dog” and
“loud parties” cases. Since these cases, which do not in-
volve potential imprisonment, are not affected by the
court’s order, we conclude that the increase in the mag-
istrate’s caseload from providing preliminary hearings to
misdemeanants who face potential imprisonment will fall
considerably short of Judge Tanksley’s projection and, if
substantial, will not be overly burdensome. The court; con-
cludes, however, that while more magistrates as well as
courtroom facilities may be needed as a result of our
it SORE =
Dettswcs «1 charac thn sce “tanita ha eM alata. Siac 9 ileal Sane wt te
» nl NT VS BE gs EE INR RE AORN Na PEN TN ert NEN TROLS eR net
109
order, and that costs may increase in the short run, it
will not be a significant increase.
Judge Tanksley also testified, however, that despite
dark predictions to the contrary by defendants at the
time of this court’s initial order, the magistrate’s system
has been [12] highly successful in felony cases. He es-
timated that, as a result of the magistrate system, felony
caseloads have been reduced by 20 to 25 percent, with
corresponding savings to the taxpayers of Dade County.
We are pleased to learn that there is now evidence to
support our prediction that
., “[t]he expense of maintaining a jail, with many
~ persons who would never be there in the first
instance if their case had been reviewed by a
judge in an effective committing magistrate
system, will be substantially less than its present
cost and will certainly be a tangible benefit to
all citizens of this community.” 332 F.Supp. at
1114.
Although we acknowledge that a state has a proper
interest in maintaining its fiscal integrity and may legit-
imately attempt to limit its expenditures, it is well settled
that a state may not accomplish such a purpose by
invidious distinctions between classes of its citizens.
Shaprio v. Thompson, 394 U.S. 618, 633 (1969). In the case
before us, defendants must do more than show that deny-
ing due process to misdemeanants will save money. In
the absence of other suggestions of compelling interests,
we must conclude that present practice deprives misde-
meanants of equal protection of the law, in addition to
due process and fourth amendment guarantees,
110
IV
THE PRESENT PRACTICES WHICH PRO-
VIDE DIFFERENT TIMES FOR PRELIMI-
NARY HEARINGS FOR THOSE CHARGED
WITH CAPITAL OFFENSES OR OFFENSES
PUNISHABLE BY LIFE IMPRISONMENT
DIFFER FROM THE COURTS PLAN AND
VIOLATE THE DUE PROCESS AND EQUAL
PROTECTION CLAUSES OF THE FOUR-
TEENTH AMENDMENT AND THE FOURTH
AMENDMENT.
Rule 3.131(b) of the Florida Rules of Criminal Pro-
cedure provide:
“In all cases where the defendant is in custody,
except capital offenses or offenses punishable
by life imprisonment, the preliminary hearing
shall be held within 72 hours of the time of the
defendant’s first appearance. In all capital of-
fenses and offenses punishable by life imprison-
ment and in all cases where the defendant is not
in custody the preliminary hearing shall be held
within seven days of the time of defendant’s
first appearance.” (emphasis added).
[13] The present practice, as set forth in that rule,
differs from the court’s plan and Sheriff Purdy’s plan
only insofar as it excludes the two enumerated categories
of offenses from the established time frame of four days.*
*The court pl an had required initial appearance within three hours
of arrest and preliminary hearing within four days thereafter. The new
Florida Rules require initial appearance within 21 hours and prelian
Bown. +
111
By creating a separate classification for persons ac-
cused of capital offenses or offenses punishable by life
imprisonment, the practice suffers an equal protection in-
firmity similar to that caused by the total exclusion of
misdemeanants from a preliminary nda The court
finds no compelling governmental interest which justifies
the classification. cf. In re Kras, supra, and Shaprio v.
Thompson, supra.
By failing to set the same time requirements for
capital and life imprisonment cases as compared to other
felonies, their present practice condones an extended de-
privation of liberty without a hearing.
The timeliness of the preliminary hearing has been
a constant concern of this court. The court recognizes
that tolerating a deprivation of liberty for four days,
absent a judicial determination of probable cause, is
questionable. In Argersinger v. Hamlin, 407 U.S. 25 (1972)
the court prohibited a denial of liberty for one day absent
counsel. Here we are condoning a denial of liberty for
four days absent a [14] hearing. Property rights have
consistently been protected by a hearing prior to the tak-
ing. Fuentes v. Shevin, 407 U.S. 67 (1972).
Thus, while four days may be a reasonable time to
allow witnesses to be summoned and other mechanical
tasks performed, an eight day (24 hours for initial ap-
pearance plus seven days) deprivation of liberty is not
reasonable. For the reasons set forth in the original Pugh
nary hearing 72 hours (3 days) thereafter. Thus the crucial time of
i geal hearing is hastened by three hours under the Florida
ules, except for the persons falling into the classification set forth
oe Bs ee
Servrrer
tld wth Jest ieL ght Nithy AG Aan BE
patil jth perks
112
v. Rainwater decision and upon the recent decisions of the
Supreme Court cited infra. The court finds that the
present practice of not setting the same time requirement
for all persons who will be proceeded against by informa-
~ tion violates the fourth and fourteenth amendments.
~
P : ¥.
THE FAILURE OF THE PRESENT PRACTICE
TO PROVIDE SANCTIONS FOR FAILURE TO
CONDUCT THE PRELIMINARY HEARING
AND THE REFILING OF AN INFORMATION
IF A DEFENDANT IS DISCHARGED DIF-
FERS FROM THE COURT PLAN AND RE-
SULTS IN VIOLATION OF THE FOURTH
“AND FOURTEENTH AMENDMENTS.
The present practices provide no sanction for the
failure to accord a preliminary hearing or for the refiling
of an information after determination of no probable
cause. They do not, because Florida law tolerates the use
of thé information process in lieu of a probabie cause
determination by a neutral and detached magistrate.
Rule 3.131(a), Florida Rules of Criminal Procedure. The ©
court plan did contain sanctions-If-4 preliminary hearing
was not accorded within the time s Sala set and there
was not a waiver or proper postnonement, then the de-
fendant was to be discharged and the charges withdrawa.
However they could be refiled, but if the preliminary
hearing was not accorded thereafter, then the defendant |
was to be discharged and not held again to answer except
upon an indictment returned within 30 days of t
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