# Brief for Respondent — Gerstein v. Pugh

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0372%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for Respondent
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 103

## Text

INTHE wikis: |
SUPREME COURT OF THE UNITED STATES—-~
OCTOBER TERM, 1973 .

NO. 73-477

RICHARD E. GERSTEIN, State Attorney for the
Eleventh Judicial Circuit of Florida,
in and for Dade County, Florida,

Petitioner,

VS.

ROBERT PUGH and NATHANIEL HENDERSON, on their
own behalf and on behalf of all others
similarly situated, and

THOMAS TURNER and GARY FAULK on their
own behalf and on behalf of all others
similarly situated, :

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS

BRUCE S. ROGOW
733 City National Bank Building
25 West Flagler Street
Miami, Florida

PHILIP A. HUBBART
Metropolitan Justice Building
1351 N.W. 12 Street
Miami, Florida

Counsel for Respondents

Washington, 0.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

ae Beene eee

ster

EY YS ong
OR Se eG Oe

cares

Meat na BENNO

W875

Pree ties

Soe et FE

(i)
TABLE OF CONTENTS

SUMMARY OF ARGUMENT ................
ARGUMENT:

I. The Due Process Clause of the Fourteenth
Amendment Requires that an Arrested Per-
son, Held in Custody, be given a Prompt
Judicial Hearing to Determine if Probable

it,

_Cause Exists to Deprive Him of His Liberty
A.

The Decisions of This Court Which Pro-
hibit the Taking of Property Without a
Prior Hearing, and Prohibit the Taking of
Conditional Liberty Absent a Subsequent
Hearing, Require That the Taking of
Absolute Liberty Be Followed By a Hear-

WG Rg he ee bee ew cbse eas wee xs

The Historical Evolution of the Pre-
liminary Hearing and Its Universal
Recognition By All of the States As an
Elementary Protection Against Arbitrary
Arrest and Imprisonment Supports the
Conclusion that Such Hearings Are an

Essential Part of Due Process of Law... . .

An Information Filed by a State Attorney
Cannot Obviate the Right to an Independent
Adversarial Determination of Probable Cause.

A.

The Information Process Provides None
Of The Elements Essential To A Due Pro-

Cees Hearing. 4. oes oe swe ecsves teaea 20

The State Attorney Cannot Be The
Neutral and Detached Magistrate Re-

‘quired By The Fourth Amendment.... . .

Sees 20

(ii)
Page _
Ill. The Failure to Accord Preliminary Hearings
to all Misdemeanants, Proceeded Against by
Information or Not, Violates the Equal Pro-
tection and the Due Process Clauses of the

Fourteenth Amendment and the Fourth
Asn os ee ves es ON a oe eer fae 22

IV. The Cases Relied Upon by the State Attorney _
are not Determinative of This Case. ............ 27

A. Hurtado v. Qalifornia, 110 U.S. 516
(1884) and its Progeny Relate to Pre-
liminary Hearings Prior to Arrest, An ;
Somae Not Fyenmmted TONGG fk ook oo nc Se oe 27

B. The Several Courts of Appeal Decisions
Cited By. the State Attorney Are Not
MO: 5. 6 6s ren rea 6 her A 30

C. Rule 5(c), Federal Rules of Criminal Pro-
cedure and Title 18 U.S.C. §3060(e) Do
Wet DiS og Hi ees eccrine ses poe 3]

V. The Judgment of the District Court was a
Proper Exercise of Jurisdiction. Neither
Abstention, The Anti-Injunction Statute or
Younger v. Harris, 401 U.S. 37 (1971), Bar

ee er ea er ae 32

VI. Providing Preliminary Hearings will Promote
the Efficient Administration of Justice........... 34
CE a oo on eee tia hehe se bs LilttOnPl iB AN Bininnict a aad PLease:

30

cedure which has likewise had approval here in such
_cases_as Qcampo v. United States...and Lem
Woom v, Oregon ....

Id. 369 U.S. 524,

The State Attornéy maintains that the Court was “‘cer-
tainly aware” that Washington law did not require
subsequent judicial determinations of probable cause
(Petitioners’ Brief, page 13). But Beck did not present the
issue of probable cause hearings. The speculative assertion
made by the State Attorney simply has no foundation.
Beck is merely a reaffirmation of Ocampo.

Whatever the application of Hurtado, Lem Woom and
Ocampo, they share one characteristic with the several
Courts of Appeal decisions which the State Attorney
urges in support of his argument. They all attempted to
reverse otherwise valid convictions because of the denial
of a preliminary hearing. No such attempt is made here,
and that fact distinguishes all of the cases cited by the
State Attorney.

B. The Several Courts of Appeal Decisions Cited
By the State Attorney Are Not Applicable.

The State Attorney refers to several Courts of Appeal
decisions which hold that preliminary hearings are not
required by the Due Process Clause.'* Each of those cases
involved a defendant who was seeking to overturn his

'8Scarborough v. Dutton, 393 F.2d 6 (Sth Cir. 1968); Kerr v.
Dutton, 393 F.2d 79 (2d Cir. 1968); Sciortino v. Zampano, 385
F.2@ 132 (3d Cir. 1969); Rivera v. Gov't of the Virgin Islands, 375
F.2d 988 (4th Cir. 1967); Barber v. U.S., 142 F.2d 805 (6th Cir.
1944); U.S. v. Luxenberg, 374 F.2d 241 (7th Cir. 1967); Weber v.
Ragen, 176 F.2d 579 (8th Cir. 1949); U.S. v. Gross, 416 F.2d 1205
(9th Cir. 1969); Austin v, U.S., 408 F.2d 808 (10th Cir.'1969); and
Swingle v. U.S., 389 F.2d 220 (D.C. Cir. 1968). The casts invoiving
federal defendants arose out of indictments and are doubly in-
applicable.

31

otherwise valid conviction because of the denial of a pre-
liminary hearing. That relief is not sought here.

Those cases are grounded upon the sound theory that a
fair trial is possible without a preliminary hearing. The
question presented here is whether a pre-trial deprivation
of liberty is fair without a peepee hearing. The Fifth
Circuit concluded:

The distinction between a pretrial declaration of a

right to a hearing and a post conviction appeal for

reversal on the basis of the absence of such a hearing

is a pragmatic and sensible distinction.

Pugh v. Rainwater, 483 F.2d at 787. ~

The Courts of Appeal cases did not consider the right
to a preliminary hearing in the context presented here.
Therefore those decisions are not dispositive of the claims
before this Court.

C. Rule 5(c). Federal Rules of Criminal Procedure _
And Ti’. 18 U.S.C. § 3060(e) Do Not Bar |
Relic..

Rule 5(c), Federal Rules of Criminal Procedure and

Title 18 U.S.C. §3060(e) disallow preliminary hearings if
an information is filed prior to the hearing date. It is
argued that the existence of those provisions supports the
constitutional validity of the practices under scrutiny
here. The respondents respectfully submit that no such
conclusion can be drawn. The federal information pro-
vision has never been questioned in this Court on_
analogous Fifth and Fourth Amendment grounds. In the
absence of such an inquiry, it cannot be said that *=
§3060(e) and Rule 5(c) govern the constitutional issues
in the instant matter. PE
As a practical matter, the federal practice would be
minimally affected by affirmance in this case. Under Rule
7(a), Federal Rules of Criminal Procedure, informations
may be used only in misdemeanor cases, unless a felony
defendant waives indictment. Misdemeanants generally

32

secure pre-trial release in the federal system, pursuant to
the Bail Reform Act (Title 18 U.S.C. §3146 et. seq). In
the state system, pre-trial detention is widespread’? and
preliminary hearings would have a more important
impact. ;

V.

THE JUDGMENT OF THE DISTRICT COURT
WAS A PROPER EXERCISE OF JURISDICTION.
NEITHER ABSTENTION, THE ANTI-INJUNCTION
STATUTE OR YOUNGER »v. HARRIS, 401 U.S. 37
(1971), BAR RELIEF IN THIS CASE.

The State Attorney has commingled abstention, the
anti-injunction ‘statute (Title 28 U.S.C. §2283) and
Younger v. Harris, 401 U.S. 37 (1971), in his argument
that the decisions below were improper exercises of juris-
diction. None of those theories bar relief in this case.?°

Abstentiorni is a narrow doctrine properly utilized only
when the state law “is susceptible of ‘a construction by
the state courts that would avoid or modify-the [federal]
constitutional question.’” Lake Carriers Assoc. vy.
MacMullan, 406 U.S. 498, 510 (1972). Those circum-
stances do not exist here. The Florida case law and rules

‘Footnote 14, supra. See also Goldfarb, Ransom, Harper and
Row, New York (1965).

The Attorney General, in his Amicus Curiae Brief (pp. 12-16)
asserts another jurisdi: tional issue. He contends that requiring pre-
liminary hearings would allow,.an inferior court of Florida to over-
rule a higher court. No décision yet rendered has sought to deline-
ate who should conduct preliminary hearings. Nor is such a deter-
mination sought here. All that is urged is that some judicial officer
determine probable cause. Florida Statutes, §901.01 (as amended,
6 West Florida Session Laws, 1973 Chap. 73-334) provides that
“each state judicial officer is a... committing magistrate.” That
provides sufficient flexibility to meet any contingency. The cases
cited by the Attorney General are inapposite.

CN A nl Bs oc TINGS

33

have never been ambiguous. They have been clear and
consistent in their insistence that the Florida and Federal
Constitutions are not offended by the use of an informia-
tion in lieu of an impartial determination of probable
cause by a judicial official. State ex rel. Hardy v. Blount,
’ 261 So.2d 172 (Fla. 1972); Widener v. Croft, 184 So.2d
444 (Fla. 1966): Rule 3.131(a), Florida Rules of Criminal
Procedure. :

‘Both the District Court opinion (332 F.Supp. at 1115)
and the Fifth Circuit opinion (483 F.2d at 781-782) paid
careful heed to Younger. Both Courts concluded, cor-
rectly, that the relief sought did not involve interference
with pending or future prosecutions. Fuentes v. Shevin,
407 U.S. 67, 71, n. 3 (1972).

If Younger v. Harris were applicable, this case would
fall within its exceptions. The Court in Younger said that
no obstacle exists to an injunction when: (1) great and
immediate irreparable injury is present; (2) Federal con-
stitutional rights cannot be protected in State court and
(3) the threatened constitutional deprivation cannot be
eliminated by a single defense to the State prosecution.
All of those circumstances exist here.

The loss of liberty constitutes great and imimediate
irreparable injury. The Florida law forecloses any consti-
tutional challenge, either as a defense or by an equitable
action, to the denial of a preliminary hearing. State ex
rel. Hardy v. Blount, 261 So.2d 172 (Fla. 1972). Thus, the
Younger exceptions are met. Cf~Younger v. Harris, 401
U.S. 37, 46 (1971).

eS erauueee

PETMAN ELEN T

SF ata BR RPE SAE oot

Sie ASR EE RRR 9 oe ie ties

34

VI.

PROVIDING PRELIMINARY HEARINGS WILL PRO-
MOTE THE EFFICIENT ADMINISTRATION OF
JUSTICE.

In addition to its value in protecting the individual
against unfounded criminal charges, the preliminary hear-
ing serves important governmental interests. It is an
excellent screening device for determining which cases
should or should not remain in the criminal justice
system. Cases with insufficient evidence are promptly dis-
missed permitting trial courts to concentrate on the more
serious matters.

Paulsen and Kadish, Criminal Law and Its Processes
920 Little, Brown & Co. (1962) note: “~

*‘An enormous number of cases are eliminated by
the preliminary examination. The Crime Surveys of
the prohibition era found that in various states from
17 percent to 58 percent of all felony arrests failed
to proceed beyond the preliminary examination
stage. The cases are brought to an end at this early
point by: (1) dismissal for want of prosecution, per-
haps because witnesses failed to appear; (2) dis-
charge for lack of probable cause; (3) filing of a
nolle prosequi.”

An American Bar Foundation study estimated that the
clearance rate for felonies at the preliminary hearing stage
was eighty percent in Chicago and sixty-five percent in
Brooklyn, New York. McIntyre and Lippman, Pro-

‘secutors and Early Disposition of Felony Cases, 56

A.B.A.J. 1154, 1156 (1970). In the instant case, Judge .
Tanksley, Chief Judge «f the Magistrate’s Division of the
Eleventh Judicial Circuit of Florida, estimated that the
preliminary hearing'system had reduced felony caseloads
by twenty to twenty-five percent in Dade County,
Florida. Pugh v. Rainwater, 483 F.2d 778, 787 (Sth Cir.
1973).

35

Prompt preliminary hearings also provide an excellent
vehicle for early decisions.on bail or release on personal
recognizance. Report on Courts, National Advisory Com-
mission on Criminal Justice Standards and Goals,
Standard 4.5 (1973).

Moreover, the hearings bring the parties together at an
early stage for plea bargaining purposes. Since counsel is
required, Coleman v. Alabama, 399 U.S. 1 (1970),
charges may be reduced or otherwise plea bargained at an
early stage of the proceedings, rather than waiting until
trial to achieve the same disposition. See, Katz, Justice is
the Crime: Pre-Trial Delay in Criminal Cases, The Press of
Case Western Reserve University, Cleveland and London,
(1972), pp. 211-212.

Each of these benefits serves the public interest by
promoting an efficient, economical administration of
criminal justice. The public interest is also served, of
course, by the protection which a preliminary hearing
offers for the right to liberty.

CONCLUSION

For the foregoing reasons, it is respectfully submitted
that the decision below should be affirmed.

Respectfully submitted,

BRUCE S. ROGOW
733 City National Bank Building
25 West Flagler Street
Miami, Florida 33130

PHILIP A. HUBBART, Public Defender
for the Eleventh Judicial Circuit
Metropolitan Justice Building
1351 N.W. 12 Street
Miami, Florida 33125

Riba PEE

36

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of brief for
respondents was. served by United States Mail upon
Leonard Mellon, Esquire, Assistant State Attorney, 2070
Main Street, Sarasota, Florida; Joseph Durrant, State -
Attorney’s Office, Metropolitan Justice Building, 1351
N.W. 12 Street, Miami, Florida and George R. Georgieff,

' Assistant Attorney General, Attorney General’s Office,

The Capitol, Tallahassee, Florida 32304, this 7 day of
February, 1974.

BRUCE S. ROGOW
Counsel for Respondents

la

APPENDIX

PRELIMINARY HEARING PROVISIONS
OF THE FIFTY STATES

ALABAMA-Code, 1940, Tit.:15, §133

ALASKA-—Cr. R. 5(d)

ARIZONA-—17 A.R.S. Rules of Criminal Procedure, Rule 5.1
ARKANSAS-Stat., 1964, Tit. 43, §43-603
CALIFORNIA--Penal Code, 1971, §859b

COLORADO-1 C.R.S. Rules of Criminal Procedure, Rule S(c)
CONNECTICUT-—C.G.S.A. §54-76a

DELAWARE~—13A D.C.A. Rules of Criminal Procedure, Rule S(c)
FLORIDA—Rules of Criminal Procedure, Rule 3.131
GEORGIA—Code, 1972, Tit. 27, §27-407

HAWAII—Rev. Stat., 1971, Tit. 37, §710-7

IDAHO—Code, 1973, Tit. 19, §19-804

ILLINOIS—S.H.A. Ch. 38, § 109-3 (1963)

INDIANA—Burn’s Ind. Stat. Ann., 1937, Tit. 9, §§704, 704a
(1949)

IOWA-—L.C.A. §761.1 (1939)
KANSAS~K:.S.A., Art. 22, §22-2902 (1970)
KENTUCKY-—7 K.R.S., Rules of Criminal Procedure, Rule 3.04

LOUISIANA—Code of Criminal Procedure, 1966, Tit. 7, Arts. 291,
292

MAINE-Rules of Criminal Procedure, Rule S(c)
MARYLAND-Code, 1957, Art. 27, §592 (1973)
_sMASSACHUSETTS—M.G.L.A. Ch. 276, § §37A-42 (1959)
MICHIGAN=M.C.L.A. § 766.1

MINNESOTA~—M.S.A. § §628.31, 629.50
MISSISSIPPI—Code, 1942, Tit. 99, Ch. 15, §99-15-5

bie Silla ta Pee Pb a0 07 thine Fatal Y CE

Pectin: ne ae

. — 2a
MISSOURI-—V.A.MS. §544.250 (1972), Rules of Criminal Pro-
cedure, Rules 23.02, 23.03
MONTANA~Rev. Code, 1967, Tit. 95, §95-902
NEBRASKA~Rev. Stat., 1943, Ch. 29, § 29-506

* NEVADA—Rev. Stat., 1971, Tit. 14. Ch. 171, §171.196

NEW HAMPSHIRE- Rev. Stat., 1°55, Ch. 596
NEW JERSEY—Rules Governing Criminal Practice, Rule 3:4-3
NEW MEXICO-Stat., 1972, Ch’ 41, §41-23-20

NEW YORK-—Code of Criminal Procedure §180.60 (McKinney
1971)

NORTH CAROLINA-Gen. Stat., Ch. 15, § 15-87

NORTH DAKOTA-—Century Code, 1943, Tit. 29, §§29-07-11,
29-07-18

OHIO—Rev. Code, Tit. 29, §§2937.10:2937.12 (1960) 2945.71
(1974)

OKLAHOMA—Const. Art. 2, §17, Laws, 1961, Tit. 22, §258
OREGON—O.R:S. 1963, Tit. 14, § § 133.610, 133.810, 133.820
PENNSYLVANIA—Pa. R. Crim. P. 120

RHODE ISLAND—Gen. Laws, 1956 (1969 reenactment,, Tit. 12,
§12-10-5

SOUTH CAROLINA—Code, 1962, § §43-231, 43-232

SOUTH DAKOTA-S.D.C.L., 1967, Tit. 23, § §23-27-1 - 23-27-16
TENNESSEE—Code, 1971, §40-1131

TEXAS—Vernon’s Ann. C.C.P. Art. 16.01

UTAH-U.C.A., 1953, Tit. 77, §77-15-3

VERMONT—Rule 5, Vermont Rules of Criminal Procedure
VIRGINIA—Code, 1950, Tit. 19, §19.1-101 (1968)

WASHINGTON—Rev. Code, Tit. 10, §§10.16.040 (1952),
10.16.080 (i354)

WEST VIRGINIA—Code, 1965, §62-1-8
WISCONSIN—U.S.A. § §970.03, 971.02 (1969)
WYOMING—Rules of Criminal Procedrue, Rule 7

3a

NOT FINAL UNTIL FEBRUARY 15, 1974, AND IF REHEAR-
ING FILED, UNTIL SAID PETITION IS DETERMINED.

IN THE SUPREME COURT OF FLORI DA
JANUARY TERM, A.D. 1974

IN RE:

RULE 3.131(b), FLORIDA : CASE NO. 44,958
RULES OF CRIMINAL PROCEDURE :

Opinion filed February 4, 1974

A Case of original jurisdiction — Florida Rules of Criminal Pro-
cedure

PER CURIAM.

Under the present Rules of Criminal Procedure, every
defendant charged with a non-capital offense is entitled
to a preliminary hearing within 72 hours if he is in
custody. The purpose of this provision was to speed the
filing of information and thereby require the state
attorney to.determine, within 72 hours, whether a_
defendant will be prosecuted or should be released.

Before filing an information every state attorney
should not only seek probable cause in his investigation,
but also determine the possibility of proving the case
beyond and to the exclusion of every reasonable doubt.
If the latter cannot be accomplished, no uiformation
should be filed and the defendant should be released. The
rule requiring this determination within 72 hours will re-
sult in tie filing of some cases iin which the state attorneys
do not have a firm belief as to the integrity of the charge,
or the state attorneys will be required to invoke a com-
plete preliminary hearing system, with all its attendant
costs and burd ns upon the judicial system as well as the
people of the state.

i SS

pet BSBA Sa ME me OEE

4a

The state attorneys have requested that this rule be
amended so that they will be allowed the period of 96
hours within which to complete their investigation of the
case and determine whether to file an information or
dismiss the charge. If the time is extended to 96 hours,
the number of cases in which no information is filed wi"!
be increased and the number of cases‘in which a nolle
prosequi of an information is entered will be reduced.
The amendment. will prevent charges from being filed
against innocent people in cases where the state objec-
tively could not prove the charges brought by the
investigating law enforcement agency.

In an effort to expedite the dismissal of unwarranted
charges brought against innocent citizens and in an effort
to facilitate the operatior of the criminal justice system
with least inconvenience to the citizen, Rule 3.131(b) is
hereby amended so that the same shall read as follows:

RULE 3.131. PRELIMINARY HEARING

* *

(b) 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 96 hours from the time of the defendant’s
first appearance. In all capital offenses and offenses
punishable by life imprisonment, the preliminary
hearing shall be held within seven days of the time
of the defendant’s first appearance. Should the
charges as set forth in paragraph (a) of this rule not
be filed, or the preliminary hearing as set forth in
this paragraph not be held within the time period
herein specified, then the court shall release the
defendant on a personal surety bond, without the
necessity of additional surety signing thereon,
together with such other conditions as to the court
may seem just and proper under the circumstances.

This rule shall take effect on March 1, 1974.
It is so ordered.

} ae

Sa

CARLTON, C.J., ROBERTS, ADKINS, McCAIN and
DEKLE, JJ., Concur

ERVIN, J., Dissents with opinion

BOYD, J., Dissents

ERVIN, J., dissenting:

This postponement by rule for yet another twenty-
four hours (increasing the time to four days) within
which preliminary hearings must be afforded uncharged
accuseds held in custody is yet another retreat from the
modern view that deprivation of an accused’s liberty
should not be unduly prolonged by the slowness of the
prosecutorial machinery. Originally it was provided in the
American Bar Association’s proposed Minimum
Standards for Criminal Justice that the time of such
detention in custody of accused felons for crimes less
than capital and misdemeanants should be only twenty-
four hours.

This further postponement of the time during which
an accused may be held in custody for prosecutorial
investigation—after the arresting officer has made ‘he
arrest—compounds an already undue length of time tor
state action. An accused is entitled to an expeditious
determination of whether there is probable cause for
charging him and holding him in further custody.

This modification is but another imposition upon poor
people unable to secure bail upon arrest. It is a relaxive
indication there is to be no incentive for speeding up of
the state procedures for determining whether accuseds
should be further detained. It is contrary to the spirit of
the Constitution for early release of the innocent and the
speedy charging and prosecution of the guilty.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0372%3A06. Public record. Not legal advice.