Amicus Curiae Brief — Gerstein v. Pugh

IN THE

Supreme Court of the nga aasam

1973

OCTOBER TERM,

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. ,

On Appeal from the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE STATE OF GEORGIA \

AS AMICUS CURIAE

ARTHUR K. BOLTON

Attorney General

Please Address all RoserT S. Stusss, II, Executive

communications to: Assistant Attorney General

JOHN W. DUNSMORE, JR. RICHARD L. CHAMBERS

132 State Judicial Bldg. :

40 Capitol Square, S.W. Assistant Attorney General

Atlanta, Georgia 30334. JoHN W. DuNnsmorg, Jr., Deputy

Phone: 404-656-2976 Assistant Attorney General

INVEX

Page

OPINIONS BELOW oe ces 535405 ns4heeresaauens l

PRELIMINARY STATEMENT................. 2

OUESTION PRESENTED «5224 24225 s¢hewssens: 2

PRGUMENT occ eee cea coneen ts cnieccsassient 2

The Due Process Clause of the Fourteenth

Amendment does not require that a State must

provide an arrested person held in custody with

a prompt judicial hearing to determine if prob-

able cause exists to hold that individual for trial.

CONCLUSION. oc. sesaas een nesses seuaas eens ses 11

CERTIFICATE OF SERVICE... ces: aes neeneeas 12

TABLE OF AUTHORITIES

Page

Cases:

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)...... 10

Beck v. Washington, 369 U.S. 541 (1962).......... ‘4

Colemun y. Alabama, 399 U.S. 1(1970)........... 4, 6

- Coolidge v. New Hampshire,

403 U.S. 443 (1971)... 0. ee eee 3

Dillard v. Bomar, 342 F.2d 789 (6th Cir. 1965)...... 8

Gerstein v. Pugh, 332 F.Supp. 1107 (S.D. Fla. 1971),

336 F.Supp. 490 (S.D. Fla. 1972),

355 F.Supp. 1286 (S.D. Fla. 1973),

483 F.2d 778 (Sth Cir. 1973).................. 1,2

Goldsby v. United States, 160 U.S. 80 (1895)..... 4,10

Government of Virgin Islands v. Bolones,

427 B20 4135 (3rd Cit. 1910) cee season pes 9

~ Grannis v. Ordean, 234 U.S. 385, 395 (1914)........ 10

Hurtado v. California, 110 U.S. 516 (1884). ....... 4,9

Jaben vy. United States, 381 U.S. 214 (1965)........ 3

Jackson v. State, 225 Ga. 39 (1969),

cert. denied, 399 U.S. 934 (1970)............... 4

Johnson y. State, 215 Ga. 839,

LEA S,B26 50 9G) 6g do 55545 cose ecuews beats 8

Lem Woom vy. Oregon, 234 U.S. 91 (1914)........ 4,9

Pugh v. Rainwater, 332 F.Supp. 1107

OS.D. Pid. 197 eevee dct escecnan scenes cuneess 9

Rivera y. Government of Virgin Islands,

375 F.2d 988 (3rd Cir. 1967). ..........,...0005 8

Robertson v. Balkcom, 212 Ga. 605,

O43 .B 26 120 (996) aco ce aexe cose so ve wee deus 7

TABLE OF AUTHORITIES (Continued) «

Page

Sciortino v. Zampano, 385 F.2d 132 (2nd Cir. 1967),

cert. denied, 390 U.S. 906 (1968)................ 7

Shadwick y. City of Tampa, 407 U.S. 345 (1972).... 3

Shields v. State, 126 Ga. App. 544,

191 S.E.2d 448 (1972)... ce eee 8

U.S. v. Anderson, 481 F.2d 685 (4th Cir. 1973)...... 8

U.S. v. Coley, 441 F.2d 1299 (5th Cir. at),

cert. denied, 404 U.S. 867 (1971).......0........ 7

U.S. v. Conway, 415 F.2d 158 (3rd Cir. 1969),

cert. denied, 397 U.S. 994 (1970).......0........ 3

United States v. Eley, 335 F.Supp. 353

(N.D. Ga. 1972)... 00000 3

United States vy. Farries, 459 F.2d 1057 (3rd Cir.

1972), cert. denied, 409 U.S. 888 (1972)........ 3,7

United States v. Habig, 474 F.2d 55 (10th Cir.

1973), cert. denied, 412 U.S. 941 (1973).......... 4

United States v. Heideman, 21 F.R.D. 335 (1958),

aff'd 259 F.2d 943, cert. denied, 359 U.S. 959

C5) ) Pree 8

United States Ex Rel. Hughes v. Gault, Marshal,

271 U.S. 142 (1926)...... 000 ee eee eee. 4

United States v. Myers, 303 F.Supp. 1583

(D.D.C. 1969)... ccc ccc pec ccc cece ccc eccecs 3

United States vy. Rogers, 455 F.2d 407

(Sth Cir. 1972)... 0... cee cee cence 8

Webb v. Hensley, 209 Ga. 447, 74 S.E.2d 7

(1999) ced eae koe vey bane bauneevsbacavcees eee 7

iil

SOR RAE QUATRE Bidet *

ted A an Rha Salton,

TABLE OF AUTHORITIES (Continued)

Page

Constitutional Provisions:

U.S. Const. Art. I, Sec. 9... 0... ec cee eee eee 5

U.S. Const. Amend. IV....................2005. 2

U.S; Comat. Amend. Vi... ic dec c cece tees vas >

U.S. Const. Amend. VII.:..............000000005 5

U.S. Const. Amend: ALY oo. osci coe og occgecsses 2,5

Ga. Const. Art. I, Sec. 2-105. ................005- 5

Ga. Const. Art. I, Sec. 2-109. .................05. 5

Ga. Const. Art. I, Sec. 2-111..................... 6

Statutes:

Federal Rules of Criminal Procedure, Rule 5....... 7

Federal Rules of Criminal Procedure, Rule 7....... 7

NG US. 8 BUD ivrceiisin sche cedseassxgcieiw 7

Florida Rules of Criminal Procedure, Rule 3.130. .6, 10

Florida Rules of Crirninal Procedure, Rule 3.131..... 2

Florida Rules of Criminal Procedure, Rule 3.191. .6, 10

ca BS.) ee eee ee 5

Ga. Gpde Ana, §.27-250... 5 oo ris seescncsisees cee’ 5

Ga. Ce Asm. 8 2 TOs oo icles ici rer 7

Ga. Code Ann. § 27-901......... ere er ree 6

Ga. Code Ann, § 30-101... .5..0........ Perrier. 6

Ce, Laws 1956, Ores TFT oe oo 6 cinceinns 6

DV 0 oe i 6 8d vee oer eee 8.

iv

IN THE

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.

On Appeal from the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE STATE OF GEORGIA

AS AMICUS CURIAE

OPINIONS BELOW -

The original opinion of the United States District

Court for the Southern District of Florida is reported

at 332 F.Supp. 1107 (S.D. Fla. 1971). The Order adopt-

ing a plan to implement the original opinion is reported

|

nba a mad

2

at 336 F.Supp. 490 (S.D. Fla. 1972). The District Court

findings, requested by the Court of Appeals after oral

- argument are reported at 355 F.Supp. 1286 (S.D. Fla.

1973). The opinion of the United States Court of

Appeals for the Fifth Circuit is reported at 483 F.2d

778 (Sth Cir. 1973).

PRELIMINARY STATEMENT

Comes now the State of Georgia, by and through its

Attorney General, by invitation of this Court, and files

its brief Amicus Curiae in the above-styled cause on

behalf of Petitioner.

Amicus adopts in toto the position taken by Petitioner

in the brief heretofore filed in this Court, and in addi-

tion thereto submits that the cause should be reversed

for the reasons stated hereinafter.

QUESTION PRESENTED

Is there a constitutional requirement that shortly

after a state has arrested an individual that he be taken

before a detached magistrate for a determination of

whether there is probable cause to hold that person

for trial?

ARGUMENT

The United States Court of Appeals as well as the

District Court, held that the Fourth and Fourteenth

Amendments affirmatively require that arrestees held

for trial upon information filed by the Florida State

Attorney must be provided with a preliminary hearing

before a judicial officer without unnecessary delay.

These courts in effect declared Rule 3.131(a), Florida

2

v

Rules of Criminal Procedure,' unconstitutional, inas-

much as said Rule dispenses with preliminary hearings

as to a defendant charged by an information or in-

dictment.

Presented to this Court for consideration on a first

impression basis is the issue of whether or not the

Fourth Amendment and the Due Process Clause of the

Fourteenth Amendment requires a state to assume the

burden of providing some sort of pretrial custodial

determination before a detached individual within the

meaning of Coolidge v. New Hampshire, 403 U.S. 443

(1971) and Shadwick v. City of Tampa, 407 U.S. 345

(1972), after an individual has been incarcerated in

order to determine whether or not there is probable

cause te continue detaining that individual for trial.

This issue brings into full circle a discussion of all of

the possibilities under which one may or may not be

entitled to a preliminary hearing.

It is well settled that the denial of a preliminary hear-

ing after one has been indicted is not a denial of due

process, inasmuch as the indictment has taken the

place of a preliminary hearing and has furnished a

basis for finding probable cause to detain an individual

for trial.2 Jaben v. United States, 381 U.S. 214 (1965);

United States vy. Myers, 303 F.Supp. 1583 (D.D.C.

1969); United States v. Farries, 459 F.2d 1057 (3rd

Cir. 1972), cert. denied, 409 U.S. 888, 410 U.S. 912

(1973). Further, it has been consistently held that the

purpose of a preliminary hearing is not designed to be

a discovery tool but to determine whether or not prob-

‘ Amicus will cite whenever appropriate, those corollary Georgia

statutory provisions similar to the ones available to a criminally

accused in Florida.

2 United States v. Eley, 335:F.Supp. 353 (N.D. Ga. 1972).

kw

able cause exists. United Siates v. Habig, 474 F.2d 55

(10th Cir. 1973), cert. denied, 412 U.S. 941 (1973).

United States v. Conway, 415 F.2d 158 (3rd Cir. 1969),

cert. denied, 397 U.S. 994 (1970). It has also been held

that the denial of a preliminary hearing does not deny

one his right to confrontation. Goldsby v. United States,

160 U.S. 80 (1895). In addition, the constitution does

not require a preliminary hearing before removal of an

accused person for trial to a federal court having juris-

diction of the charge. United States Ex Rel. Hughes vy.

Gault, Marshal, 271 U.S. 142 (1926). However, in Cole-

man vy. Alabama, 399 U.S. 1 (1970) this Court found

that a preliminary hearing in Alabama was a key stage

in their criminal prosecution, and as such an accused

was entitled to be represented by counsel at such a

hearing.

Also, there is no constitutional right to a preliminary

hearing prior to indictment or prior to trial. Goldsby v.

United States, 160 U.S. 80 (1895). This Court has also

stated that there is no constitutional requirement that

the state must provide a judicial determination as to

probable cause to arrest prior to arresting one on in-

formation. Lem Woom y. Oregon, 234 U.S. 91 (1914);

Beck v. Washington, 369 U.S. 541 (1962). Neither is it

constitutionally impermissible to try an individual on

information without seeking an indictment. Hurtado v.

California, 110 U.S. 516 (1884).

What is being asked of this Court is that they declare

that subsequent to an arrest and incarceration a state

must as a constitutional prerequisite assume a burden

of establishing probable cause to hold an individual for

3 Jackson v. State, 225 Ga. 39 (1969); cert. den., 399 U.S. 934

(1970).

5

trial on either an information or otherwise prior to

indictment. One can also assume from Respondent’s

position that even if the constitution required that such

a preliminary hearing would be available on request

by an arrestee that this would not satisfy Respondent’s

constitutional contentions. Further, it would seem that

Respondent takes the position that even in cases upon

which one has been arrested pursuant to a warrant, the

issuance of that warrant before an impartial magistrate

does not satisfy the requisite of a probable cause

determination.

To categorically state that under the due process

clause of the Fourteenth Amendment a state must

immediately conduct upon arrest and incarceration of

an individual a probable cause hearing amounts to

judicially amending the Constitution. Clearly, the lack

of such a procedure is not violative of due process in-

asmuch as the United States Constitution provides a

number of other remedies available to an accused de-

signed to prevent any prolonged or oppressive periods

of pretrial confinement. First of all, there is the right

of an accused under the Sixth Amendment to a speedy

trial. Second, an accused may test the pretrial restraint

on his liberty by bringing a writ of habeas corpus as

set forth in Art. I, § 9, United States Constitution.

Third, the right of an accused to obtain pretrial liberty

is protected by the Seventh Amendment which pro-

hibits the use of excessive bail. These constitutional

procedural safeguards which are available to an ac-

cused do not require a further due process require-

ment of the preliminary hearing where an accused is

charged by an information.

In addition to the basic constitutional rights, the

State of Florida has also instituted a number of statu-

6

tory procedural safeguards to prevent there being any

protracted delays in getting an individual to trial. These

provisions are as follows: Fiorida’s mandatory speedy

trial rule, Rule 3.191, Florida Rules of Criminal Pro-

cedure;* Florida’s first appearance hearing within 24

hours of arrest, Rule 3.130(b) (1), Florida Rules of

Criminal Procedure; the right to bail under Rule

3.130(b) (4), Florida Rules of Criminal Procedure ;* and

further, Florida has previded an accused with compre-

hensive rules of pretrial discovery. (cit. omitted). The

State of Georgia by statute and constitutional enact-

ment has also instituted certain procedural safeguards

as mentioned in the previous footnotes. In addition to

those mentioned is the right of an individual to file a

writ of habeas corpus.’

The language of this Court in Coleman y. Alabama,

399 U.S. 1 (1970), seems to further buttress Petitioner’s

position that a preliminary hearing is not constitu-

tionally required of a State. In Coleman, supra,.a pre-

liminary hearing was not a required step in an Ala-

bama prosecution, as a prosecutor could directly seek

an indictment by grand jury without having a pre-

liminary hearing. Jd. 8. Further, Justice White in his

concurring opinion lends additional credence to Peti-

tioner’s position when he stated in Coleman, supra,

“Our ruling may also invite eliminating a preliminary

hearing system entirely.”’ Jd. at 8.

In passing, the Federal Rules of Criminal Procedure

‘Corollary Georgia provision: Ga. Const. Art. I, Sec. 2-105;

Ga. Code § 27-1901.

5A similar Georgia statute: Ga. Laws 1956, p. 796, 797; Ga.

Code Ann. § 27-210.

6 Ga. Const. Art. I, Sec. 2-109; Ga. Code Ann. § 27-901.

7 Ga. Const. Art. I, Sec. 2-111; Ga. Code Ann. § 50-101.

La Cet RMA I Sm SRN AASV OS ICR OAL? Vl A MERE TABD REE SI SL TNE, Hes EET

7

upon briefly. Rule 5,

Rules of Criminal Procedute does not require that a

preliminary hearing be held when information is filed

against the defendant in a district court under Rule

7(a), Federal Rules of Criminal Procedure. Further,

Title 18, U.S.C. § 3060(e) provides as follows:

“No preliminary examination in compliance with

subsection (a) of this section shall be required to

be accorded an arrested person, nor shall such

arrested person be discharged from custody or

from the requirement of bail or any other condi-

tion or release pursuant to subsection (d), if at

any time subsequent to the initial appearance of

such person before judge or magistrate and prior

to the date fixed for the preliminary examination

pursuant to subsections (b) and (c) and indictment

is returned or, in appropriate cases, and informa-

tion is filed against such person in accord of the

United States.” §

Rule 7, subsection (a) of the Federal Rules of Crim-

inal Procedure, provides for use of either information

or indictment. A similar Georgia statute parallels this

Federal Rule.®

There have been a number of federal circuits which

have construed 18 U.S.C. § 3060 (b) and (c) to mean

that the Constitution does 1iot require preliminary

hearings, and a subsequent conviction without a pre-

liminary hearing will not be vitiated. Sciortino vy. Zam-

pano, 385 F.2d 132 (2nd Cir. 1967), cert. denied, 390

U.S. 906 (1968); U.S. v. Farries, 459 F.2d 1057 (3rd

8 United States v. Coley, 441 F.2d 1299 (Sth Cir. 1971), cert.

denied, 404 U.S. 867 (1971).

9Ga. Code Ann. § 27-704; Webb v. Hensley, 209 Ga. 447, 74

S.E.2d 7 (1953); Robertson v. Balkcom, 212 Ga. 605, 94 S.E.2d

720 (1956).

8

Cir. 1972), cert. denied, 409 U.S. 888 (1972); U.S. v.

Anderson, 481 F.2d 685 (4th Cir. 1973); U.S. v. Rogers,

455 F.2d 407 (Sth Cir. 1972); U.S. v. Coley, 441 F.2d

1299 (Sth Cir. 1971), cert. denied, 404 U.S. 867 (1971).

See also U.S. v. Heideman, 21 F.R.D. 335 (1958), aff’d

259 F.2d 943, cert. denied, 359 U.S. 959 (1959).

The United States Constitution as adopted did not

contain any guarantee of indictment by grand jury,

but the Fifth Amendment cured this hiatus. This pro-

vision, however, only applies to offenses against the

United States and does not require a State to use an

indictment for violations of state laws. Rivera v. Gov-

ernment of Virgin Islanés, 375 F.2d 988 (3rd Cir. 1967).

In a Sixth Circuit decision arising out of Tennessee,

the circuit court upheld a Tennessee statute which

denied an accused a right to a preliminary hearing

when a grand jury was in session, and further stated

that such a provision was not unconstitutional as an

accused has no right to a preliminary hearing before

indictment. Dillard v. Bomar, 342 F.2d 789 (6th Cir.

1965). In a case arising out of the Virgin Islands, Rivera

v. Government of Virgin Islands, 375 F.2d 988 (3rd

Cir. 1967), a Virgin Island statute, 5 V.I.C. § 3581(a)

does away with indictments and provides as follows,

“every felony and every criminal action in the district

court shall be prosecuted by information.”

The Third Circuit decision stated that there was no

constitutional right to a prosecution founded upon a

grand jury indictment, and further found this territorial

10 Georgia cases similarly holding that there is not constitutional

‘right to a preliminary hearing are: Johnson v. State, 215 Ga. 839,

114 S.E.2d 35 (1960); Shields v. State, 126 Ga. App. 544, 191 S.E.

2d 448 (1972).

9

statutory provision to be constitutional. The court in

Rivera also stated that the due process clause did apply

to the Virgin Islands, and that this particular statute

did not infringe upon due process. This circuit court

stated that a preliminary hearing was not required, and

further, that a preliminary hearing is a procedural right

and not a right within the constitutional concept of due

process; and as such can be cut off by the filing of

either an indictment or information. See also, Govern-

ment of Virgin Islands v. Bolones, 427 F.2d 1135 (3rd

Cir. 1970).

Therefore, if a state can either bypass a preliminary

hearing by going directly to an indictment, or as in

Hurtado v. California, 110 U.S. 516 (1884) and Lem

Woom vy. Oregon, 234 U.S. 91 (1914), by proceeding

directly by means of an information, there would seem-

ingly be no constitutional mandate that would require

a state to provide an accused with a preliminary hear-

ing. While preliminary hearings are a good idea, they

certainly are not constitutional requirements.

Respondents initially sought a judicial hearing to

determine probable cause for their detention. When

this was denied they took their complaint to the dis-

trict court. Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.

Fla. 1971). Inasmuch as Respondents were dissatisfied

with the Florida criminal procedure, the rule set down

in Younger v. Harris, 404 U.S. 37 (1970), would seem

to be applicable to this situation. Specifically, that the

federal courts will not enjoin a pending state criminal

prosecution except under certain extraordinary circum-

stances where there is the danger of irreparable loss

and great harm. Jd. at 43-45. In view of the procedural

safeguards instituted by Florida in addition to those

4

RIOR Ha nel 54

Sake Britta See A Rae ad

eos REIS ts cb 2

Se

ere *

Se ee

10

set down in the United States Constitution, there would

seemingly be no irreparable loss to Respondents. Re-

spondents argue that principles of Grannis v. Ordean,

234 U.S. 385, 395 (1914), and Armstrong v. Manzo, 380

U.S. 545, 552 (1965) are applicable, and that a denial

of a preliminary hearing amounts to a denial of their

right to be heard at a meaningful time. This contention

would seem to lack any meaningful significance in view

of Goldsby v. U.S., 160 U.S. 70 (1895), which states

that the denial of a preliminary hearing does not deny

one his right to confrontation and cross-examination.

Further, in view of the fact that Florida provides those

who are arrested with the right to bail" and a right to

a speedy trial, an accused in that state is afforded

with more than the minimal due process requirements.

1 Rule 3.130(b) (4), Florida Rules of Criminal Procedure.

Rule 3.191, Florida Rules of Criminal Procedure.

11

CONCLUSION

For these reasons, Amicus respectfully urges this

Court to reverse the holding of the Court of Appeals

for the Fifth Circuit in this case.

Please serve:

JoHN W. DUNSMORE, JR.

132 State Judicial Bldg.

40 Capitol Square, S.W

Atlanta, Georgia 30334

(404) 656-2976

Respectfully submitted,

ARTHUR K. BOLTON

Attorney General

RosERT S. STUBBS, II

Executive Assistant

Attorney General

RICHARD L. CHAMBERS

Assistant Attorney General

JOHN W. DUNSMORE, JR.

~ Deputy Assistant

Attorney General

hsiiiticsasianlagsiion —

12

CERTIFICATE OF SERVICE

I, Richard L. Chambers, one of the counsel for

Amicus Curiae, and a member of the Bar of the Supreme

Court of the United States hereby certify that on this

day of August, 1974, I served a copy of the

Brief of Amicus Curiae on

LEONARD MELLON, ESQUIRE

Assistant Attorney General

2070 Main Street

Sarasota, Florida

counsel for the Petitioner and on

BRUCE ROGOw, ESQUIRE

733 City National Bank Building

25 Wesi Flagler Street

Miami, Florida

counsel for Respondents, by duly addressed envelope

with adequate postage prepaid.

RICHARD L. CHAMBERS