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

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2

9

2

1

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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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Appendix — Gerstein v. Pugh · 420 U.S. 103 | Frix