Supplemental Brief — Gerstein v. Pugh

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FILED

OCT 11 197%

IN THE MICHAEL RODAK, JR.,cug

Supreme Court of the United eS

OCTOBER TERM, 1974

No. 73-477

RICHARD E. GERSTEIN, State Attorney for the

Eleventh Judicial Circuit of Florida, in and for Dade

County,

Petitioner,

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all others similarly

situated,

Respondents.

SECOND SUPPLEMENTAL

BRIEF FOR RESPONDENTS

BRUCE S. ROGOW

Nova University Center for the

Study of Law

3301 College Avenue

Fort Lauderdale, Florida 33314

PHILLIP A. HUBBART, Public Defender

for the Eleventh Judicial Circuit

Metropolitan Justice Building

1351 N.W. 12 Street

Miami, Florida 33125

Counsel for Respondents

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

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INTRODUCTORY STATEMENT

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TABLE OF CONTENTS

PROSECUTORIAL SCREENING, BAIL

HEARINGS AND EXPEDITED TRIALS DO

NOT, EITHER SINGLY OR IN SUM, MEET

THE REQUIKEMENTS OF THE RIGHT TO

BE HEARD BY A NEUTRAL AND

DETACHED PERSON COMMANDED BY

THE DUE PROCESS CLAUSE.

A.

Prosecutorial Screening Denies an ,Op-

portunity to be Heard. ..............,

The Prosecutor is Not Neutral and

Detacied. ........................, ;

Ba Hearings Do Not Provide the

Opportunity to Be Heard on the Ques--

tion of Probable Cause and Even if

Release from Custody were the Issue in

This Case, Such Hearings are Irrelevant

to Those Charged with Non-Bailable

Offenses and to the Indigent. ..........

Expedited Trials and Calendar Control

are Not a Valid Response to the Denial

of an Opportunity to be Heard Prior to

DS |

. Considerations of “Cost and Efficiency

Do Not Bar the Respondents’ Claim ......

. INCARCERATED PERSONS CHARGED

WITH MISDEMEANORS BY A PROSECU-

TOR’S INFORMATION ARE ENTITLED

TO A PRELIMINARY HEARING.

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III. NEITHER THE PRIOR DECISIONS OF

THIS COURT NOR HISTORY JUSTIFY

THE DENIAL OF A _ PRELIMINARY

HEARING TO PERSONS INCARCERATED

UPON INFORMATIONS. .............2e000- 19

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Me PS 5 ao i is Widen 6s 64 ho eee een 4d e838 22

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TABLE OF AUTHORITIES

Cases:

Argersinger v. Hamlin, 407 U.S. 25,(1972) ......... 18,19

Baldwin v. New York, 399 U.S. 66 (1970) ............. 18

Coe v. Armour Fertilizer Works, 237 U.S. 413

OO gp ie ae ogee ee a8 Sa es 8

Coleman v. Alabama, 399 U.S.1(1970) ............ 7,12

Coolidge v. New Hampshire, 403 U.S. 443 (1970) ........ 8

Fuentes v. Shevin, 407 U.S.67(1972) =... wo ee ees

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ...%. 2.2.0... 2

Hurtado v. California, 110 U.S. 516 (1884) ............ 20

Joint Anti-Fascist Refugee Committee v. McGrath,

Wey Ri tee ee eu a wk oleae es 5

Lem Woom v. Ciegon, 229 U.S. 586 (1913) ............ 20

Loper v. Stack, 291 So. 2nd 207 (4th D.C.A. 1974) ...... 11

McNabb v. United States, 318 U.S. 332 (1943) .......... 6

Mitchell v. W.T. Grant Company, ____ U.S. ____.,

SUS. CU: TORS CR) ck hho oe eR cae 2

Morrissey v. Brewer, 408 U.S. 471 (1972) .......... 2, 8,9

Ocampo v. United States, 234 U.S. 91 (1914) ........ 20, 21

Pugh v,. Rainwater, 483 F.2d 781 2... ee ee ee 10,11,17

—— CAPO ORL PERA GE oI Rh VEO ts He

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Page

Shadwick v. City of Tampa, 407 U.S. 345 (1970) ....... 8,9

Shapiro v. Thompson, 394 U.S. 618 (1969) ........... 17

Sniadach v. Family Finance Corporation, 395 U.S.

te oe. | a inn. re .. 2

State ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla.

OE SRS ens 4 9k Fs 6 ik oe Ces 11,14

Thies v. State, 178 Wis. 98, 189 N.W. 539 (1922) ........ 22

Statutes: .

Federal Rules of Criminal Procedure, Rule 5(c) ......... 12

18 United States Code, Sec. 3146 (b) ................ 12

Other Authorities:

Breitel, Controls in Criminal Law Enforcement, 27

CE Ee, S27 GIGI) Gi vcninie se Siw ce chs ce bes 5

Federal Bureau of Investigation, Uniform Crime

Reports for the United States (1973) .............. 7

Goldberg, Pre-trial Diversion: Bilk or Bargain, 31

N.LA.D-A. Briefcase 490 (1973) 2. ces cccves 6

Harper's Magazine, October 1974, pp. 56-57 ............ 17

Katz, Lewis R., Justice is the Crime, Pretrial Delay

ks cco ch gd SE Ce 4, 23

National Advisory Committee on Criminal Justice

Standards & Goals, Courts, Commentary to

he et A dt) eR et ee ee 18

National Jail Census 1970, U.S. Department of

Justice, National. Law Enforcement Assistance

Administration, National Criminal Justice

Statistic Service, Table 2, pp. 3-10(1971) ........... 13

Pound, Criminal Justice in America, 36 (1930) .......... 20

Rankin, The Effect of Pretrial Detention, 39

Wace Ae Es UR |. 57 So ko eek kh eee es 7

Lik A AS INR OES bE. SS eee

(iv)

Page

Survey of Inmates of Local Jails; Advance Report,

U.S. Department of Justice, National Law

Enforcement Assistance Administration, Na-

tional Criminal Justice & Statistics Service,

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PY’. , } } ac ie ra la

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 73-477

RICHARD _E. GERSTEIN, State Attorney for the

Eleventh Judicial Circuit of Florida, in and for Dade

County,

Petitioner,

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all others similarly

situated,

Respondents.

SECOND SUPPLEMENTAL

BRIEF FOR RESPONDENTS

INTRODUCTORY STATEMENT

On October 5, 1974 the Solicitor General filed an

amicus curiae brief in this case. The Government's

position, as stated in that brief, is that if any process is

due to persons held in physical custody prior to trial

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‘upon an information, the obligation is met by

prosecutorial screening, bail hearings and expedited

trials.

This, the third brief filed by the Respondents,

focuses upon the Government’s contentions. Our

previous efforts have illustrated that a host of recent

decisions compel the conclusion that the Respondents’

claim to an opportunity to be heard after arrest but

prior to trial is strong. Indeed, a comparison of the

interests involved in this claim and those involved in

Mitchell v. W.T. Grant Company, US. , 94

S. Ct. 1895 (1974); Fuentes v. Shevin, 407 U.S. 67

(1972); Sniadach v. Family Finance Corporation, 395

U.S. 337 (1969); Morrissey v. Brewer, 408 U.S. 471

(1972); and Gagnon vy. Scarpelli, 411 U.S. 778 (1973)

compel the inescapable conclusion that persons held in

jail solely upon a prosecutor’s information have the

strongest claim to a hearing. The Appendix to this Brief

contains a chart which makes the comparison leading to

that conclusion.

Faced with the recent due process decisions, the

Government contends that they do not require a

“formal procedure” to determine probable cause. Thus

they present their prosecutorial screening, bail hearing,

expedited trial trilogy as sufficient to meet due process

standards. In doing so, the Government has overlooked

the essential meaning of due process.

At the least due process, even in a_ preliminary

inquiry, requires notice, an opportunity to confront and

cross-examine adverse witnesses and the right to be

heard by a neutral and detached person. Morrissey v.

Brewer, 408 U.S. at 488-489. Against the most

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minimum application of that standard, the Govern-

ment’s suggestions must be rejected.

In part one of this Brief we will demonstrate the

deficiency in the Government’s tripartite ‘‘hearing’’

procedure. Thereafter we will show that no rationale

exists for denying an opportunity to be heard to

misdemeanant defendants who are in jail awaiting trial.

And finally, we will show that neither history nor the

prior decisions of this Court justify the use of an

unreviewed information to take a presumably innocent

person’s liberty without an opportunity to be heard.

I.

PROSECUTORIAL SCREENING, BAIL

HEARINGS AND EXPEDITED TRIALS DO

NOT, EITHER SINGLY OR IN SUM, MEET

THE REQUIREMENTS OF THE RIGHT TO

BE HEARD BY A NEUTRAL AND

DETACHED PERSON COMMANDED BY

THE DUE PROCESS CLAUSE.

A.Prosecutorial Screening Denies an Opportu-

nity to be Heard.

The Respondents have consistently pointed out that

an affirmance in this case would not diminish the

prosecutor’s role as the primary screening force in the

decision to charge process. Respondents’ Supplemental

Brief 22-23. It would merely require a subsequent

judicial review of the decision in a proceeding meeting

due process requirements.

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The reason for judicial oversight is simple. The

prosecutor reviews the case brought by a complaining

party, generally the police. He arrives at his conclusion

based upon what the police present him. His ability to

carefully determine probable cause is limited by the

kind of information he receives. Even if a prosecutor is,

as the Government asserts, naturally disinclined to

prefer weak charges,’ he has no real opportunity to test

or verify the facts in the ex parte setting of his inquiry.

Thus the best intentioned prosecutor may, because of

the nature and manner of the information presented to

him, find himself committed to an ill-founded prosecu-

tion.?

‘While we do not question the general good faith of

prosecutors, one cannot fail to recognize that factors other than

wanting to win a case go into the decision to charge. Lewis R.

Katz in Justice is the Crime, Pretrial Delay in Felony Cases,

(1972), commenting upon the delicate balance in police-prosecu-

tor relationships wrote:—

“Since both [offices] are working towards the same general

goals, each is dependent upon the other’s labors to

facilitate its own work. As a result, prosecutors are fully

aware that they cannot often refuse a police request to.

prosecute, and tye police are aware that they cannot

pressure for prosecution in too many questionable cases,

for it is the prosecutor who ultimately must justify that

decision in court.”

Popularly elected prosecutors, like the Petitioner, also face

_ political considerations which may affect their indepen-

dence. These are also relevant factors in determining

neutrality and detachment. See Point “B”, infra.

?The record in this case is illustrative of that point. An

assistant state attorney prepares an information after a

complaining party or police officer comes into his office and

talks to him. The information is reviewed by the Chief of the

Complaint Division and forwarded to the State Attorney or one

of his designated assistants for signature. App. 49-50. The

Petitioner's Caseload Report for the Year Ended December 31,

————— OA OAT BS EK Hk hcg ee

5

An opportunity to be heard subsequent to arrest

would ameliorate the problems which always flow from

ex-parte decisions. Justice Frankfurter stated:

‘“*’,. fairness can rarely be obtained by secret,

one-sided determination of facts decisive’ Sof

rights... That a conclusion satisfies one’s private

conscience does not attest to its reliability. The

validity and moral authority of a conclusion

largely depend on the mode by which it is

reached. Secrecy is not congenial to truth seeking

and self righteousness gives too slender an

assurance of rightness. No better instrument has

been devised for arriving at truth than to give a

person in jeopardy of serious loss notice of the

case against him and opportunity to meet it... .”

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123, 170-172 (concurring opinion).

Prosecutorial screening cannot provide that opportu-

nity. A subsequent judicial hearing can. Judicial review

serves as a check and balance upon police-prosecutor

initiation of charges. That concept is recognized by

commentators, Breitel, Controls in Criminal Law

Enforcement, 27 U. Chi. L. Rev. 427, 433 (1960) and

by this Court:

‘**’..A democratic society, in which respect for

the dignity of all men is central, naturally guards

1970 reflects that of the 7856 “disposed” felony and

misdemeanor cases there were 1373 acquittals and 194 nol

prosses. App. 62. If one excludes the 1373 categorized as “Other

(Absentee Docket, etc.) which were really not resolved, App.

62, approximately 16% of the prosecutions failed. These statistics

do not reflect the number ‘of cases in which an information

“overcharged” a defendant. Since bond is set on the charge

contained in an information, overcharges often result in unfair

deprivations of pre-trial liberty which could be avoided by a

preliminary hearing.

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against the misuse of the law enforcement process.

Zeal in tracking down crime is not in itself an

assurance of soberness of judgment. Disinterested-

ness in law enforcement does not alone prevent

disregard of cherished liberties. Experience has

therefore counseled that safeguards must be

provided against the dangers of the over-zealous as

well as the despotic. The lawful 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. ...”

McNabb y. United States, 318 U.S. 332, 343-344

(1943). t

In response the Government argues that the screening —

‘process is so efficient that providing preliminary

hearings would generally be a waste of time. Govern-

ment Brief 41. They cite data showing high federal

conviction rates and low state preliminary hearing

dismissal rates to buttress their contention. Government

Brief 41, n. 35; 67. However, their argument fails as a

matter of law. Added to that, their statistics are

suspect? and atypical.*

3Reliance upon the 97% conviction rate alluded to in Pugach

v. Klein, 193 F. Supp. 630, 635 (S.D.N.Y. 1961) is inappropriate.

That figure reflects felony prosecutions which must be

commenced by indictment. Misdemeanor information cases in the

federal system are, for the most part, unique to the District of

Columbia. Government Brief 3-4. The 93% misdemeanor

conviction rate in the District of Columbia excludes the 14% of

charged persons whose cases are dismissed after completion of

pre-trial diversionary programs. Some concern has been voiced

that those programs encourage innocent people to waive their

right to be heard. Goldberg, “Pre-trial Diversion: Bilk or

LEO EEO IT OE A ee RO ANOS Rb CEI Bi ENR BM te.

7

Seeking to deny preliminary hearings because few

persons obtain dismissal then or at trial is but one step

from the argument that we ought to consider foregoing

trials because fe’ are acquitted. That kind of logic has

been rejected Ic.g ago:

“To one who protests against the taking of his

property without due process of law, it is no

answer that in his particular case due process of

law would have led to the same result because he

Bargain?”, 31 NLADA Briefcase 490, 499 (1973) And there is also

reason to believe that persons incarcerated prior to trial are more

likely to be convicted than those who were released. Rankin, The

Effect of Pretrial Detention, 39 N.Y.U. L. Rev. 641 (1964). See

also Amicus Curiae Brief of The National Legal Aid and

Defender Association 9-10. Consequently a denied preliminary

hearing, insofar as it might have foreclosed pre-trial release from

physical custody by making a bail hearing meaningful (see

discussion infra), may contribute to the high conviction rate.

“The F.B.I.’s Uniform Crime Reports for the United States,

1973, show that of those charged with violent crimes, 32% were

acquitted or had their charges dismissed; 12.7% were found

guilty of lesser offenses and 3.2% were found guilty of the

offense charged. Of those charged with property crimes, 14.9%

were acquitted or had their charges dismissed; 5.0% were found

guilty of lesser offenses and 34.8% were found guilty of the

offense charged. Miscellaneous offenses ranging from ‘other

assaults’’ to drunkenness and disorderly conduct reflect acquittal

rates from 44.1% to 9.4%. The highest conviction rate in the

lesser crime category was in drunkenness cases (88.2%). The

single largest group other than drunkenness was a category called

“All other offenses”. Only 51.4% of those people were found

guilty of the offense charged. /d. Table 18, p. 116.

The Government also errs in attempting to measure the

usefulness of preliminary hearings only by the number of

dismissed cases. First there is evidence that large numbers of

cases are dismissed at preliminary hearings. Respondents’ Brief

34.-35. Second, the benefits which flow from such an adversarial

hearing extend beyond dismissal to informed decisions on bail,

psychiatric treatment, and reduction of charges. Coleman y.

Alabama, 399 U.S. 1 (1970).

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had no adequate defense upon the merits... .”

Coe v. Armour Fertilizer Works, 237 U.S. 413,

424 (1915).

Due process guarantees not only the right to be

heard, but the right to be heard by a neutral and

detached person. The prosecutorial screening process

fails to meet that test too.

B. The. Prosecutor is Not Neutral and Detached.

The concept of “neutrality and detachment” is found

in the Fourth Amendment and in the Due Process

Clause. Compare Shadwick v. City of Tampa, 407 U.S.

345 (1970) with Morrissey v. Brewer, 408 U.S. 471,

489 (1972).

The Government seeks to avoid the implication of —

the Fourth Amendment cases, Shadwick and Coolidge

vy. New Hampshire, 403 U.S. 443 (1970), by saying that

a prosecutor issuing an information is not an

investigative officer and thus does not fall within

Fourth Amendment proscriptions. Government Brief

38. Yet, a few pages later, they say preliminary hearings

are valueless because “both prosecutors and defense

couns2l have had too little time to investigate their

case....’’ Government Brief 44, n. 39. That statement

recognizes the duality of the prosecutor’s role.° Once

he has decided to file an information based upon the

5It also recognizes the shortcoming of the screening process.

One would hope that a prosecutor would have.investigated a case

prior to filing. But the ex parte charging process precludes that

protection.

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police report he then becomes inextricably entwined

with the investigative function necessary to build the

case. Since we are not asking for a hearing prior to the

filing of an information it is of little consequence that

he has generally been uninvolved’ up to the time the

police officer presents himself. But once the infor-

mation is, tiled, a function which we would not deny a

prosecutor, it cannot be said that the continued loss of

liberty which results solely from: his signature is being

accomplished by a neutral and detached party.

In Shadwick a unanimous Court wrote:

‘‘Whatever else neutrality and detachment might

entail, it is clear that they require severance and

disengagement from activities of law enforcement.

There has been no showing whatever here of

partiality or affiliation of these [municipal court]

clerks with prosecutors or police. The record

shows no connection with any law enforcement

activity or authority which would distort the

independent judgment the Fourth Amendment

requires.”

Shadwick v. City of Tampa, 407 U.S. at 350.

Clearly, prosecuting officials cannot make the same

claim to neutrality and detachment.’

a

®There are many instances when the prosecutor’s office

initiates and supervises an investigation. When he has accumula-

ted evidence which he believes establishes probable cause, he files

an information. The Government takes no cognizance of this

multi-purpose role of a prosecutor which completely negates

their characterization of the prosecutor as an accusative officer

and not an investigative officer.

7The due process standard requires an “independent” decision

maker. Morrissey v. Brewer, 408 U.S. at 486. The Fourth

Amendment cases are instructive for they define neutrality and

detachment and in the context of this claim provide an insight

into “independent”. For the reasons that a state attorney runs

afoul of the Fourth Amendment standard, he cannot be

“independent” under the Due Process Clause.

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Even if one could say that a prosecutor were neutral

and detached in Fourth Amendment or due process

terms, the heart of the Respondents’ case would be

unaffected. For our claim is not that the initial taking

is invalid, (Respondents’ Brief 13; Tr. of Oral Arg.

54-55), but merely that the taking without a later

opportunity to be heard is invalid. This is a Fourteenth

Amendment Due Process claim. Since we have already

shown that prosecutorial screening affords no opportu-

nity to be heard, whether a prosecutor is neutral and

detached is important only insofar as it underscores the

total lack of protection afforded to a person incarcer-

ated upon an information. We submit that the

prosecutor’s function makes it inappropriate for him to

claim that he is so impartial that a judge may not

inquire into his determination of probable cause.

C. Bail Hearings Do Not Provide the Opportu-

nity to Be Heard On the Question of

Probable Cause and Even if Release from

Custody were the Issue in This Case, Such

Hearings are Irrelevant to Those Charged with

Non-Bailable Offenses and the the Indigent.

This case does not present the question of whether

the Respondents are entitled to be at liberty.upon bail.

8An additional consideration is found in the Fifth, Circuit's

view that “even the appearance of such entanglement between

the prosecutorial and judicial functions as exists under the

Florida information prosecution system’? compromises any

argument that a state attorney is sufficiently neutral, detached or

independent to be the sole arbiter of probable cause. Pugh v.

Rainwater, 483 F. 2d at 778.

re coer Ye en Ce

ll.

The Government’s effort to transform the issue into

one of bail. misses the point of this litigation. It poses

the issue of whether defendants charged upon informa-

tions have a right to be heard prior to trial. The fact of

physical custody is important only because in balancing

. due process claims, one consideration is the quality of

the deprivation. Here it is the total taking of absolute

liberty. If the Respondents had been released upon

bond they would not have been foreclosed from

claiming a denial of the right to be heard. A different

consideration would merely be present when a court

balanced the competing interests in assessing the due

process claim.

For Pugh and the class he represents, bail hearnngs

are a totally irrelevant preposal. Pugh was charged with

robbery, a “life” offense which requires that bail be

denied unless he showed that the proof of guilt was not

evident nor the presumption that he committed the

crime great. Loper vy. Siack, 291 So. 2d 207, (4th

D.C.A. 1974). The information not only denies a

preliminary hearing, it denies bail.

Against that background we consider the utility of

the bail hearings suggested by the Government to see if

they can ever provide the rights asserted by the

Respondents.

In the Florida system bail hearings do not provide

for an opportunity to test probable cause. Pugh y.

Rainwater, 483 F.2d at 781, n. 8. Of course, the filing

of an information would preclude such an inquiry.

State ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla.

1972). An information filed against a misdemeanant in

the federal system would likewise preclude a probable

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cause inquiry. Rule 5(c), Federal Rules of Criminal

Procedure.

While the ‘‘weight of the evidence against the

accused” (18 U.S.C. Sec. 3146(b)) is a_ federal

consideration in setting bail, it is a far cry from being

what the Government calls the “functional equivalent

of the .(preliminary) hearing’. Government Brief 52.

The difference is a matter of form and substance.

The bail hearing provides no _ opportunity to

confront, cross-examine or present evidence on the

question of probable cause. At best it is an informal

inquiry into the case and the prosecutor’s view of the.

strength of it. The defect in the decision to charge

process infects the prosecutor’s response and destroys

the contention that the bail hearing provides a

safeguard against improvident prosecutions. The pro-

secutor’s view of his case is one-sided. He conveys that

to the court either orally or by the affidavit procedure

the Government suggests. There is no opportunity to

effectively confront that kind of presentation. The bail

hearing merely perpetuates the denial of the opportu-

nity to be heard. sue

That ongoing failure makes the decision on bail itself

suspect. Providing the opportunity to be heard on the

question of probable cause would improve fairness in

bail decisions. This Court has recognized the usefulness

of preliminary hearings in setting bail. Coleman vy.

Alabama, 399 U.S. 1 (1970). Given the long lament of

legal scholars over the bail system,? one wonders if the

*See Goldfarb, Ransom (1965); Kasanof and Single, “The

Unconstitutional Administration of Bail: Bellamy v. The Judges

of New York City”, 8 Crim. L. Bull. 459 (1972); A Program for

Prison Reform in the United States, Final Report of the Annual

- 13

Government should not be arguing for preliminary

hearings in order to make bail decisions more informed

for the sake of society as well as defendants.

Any doubt about the Government’s attempt to

circumvent the right to be heard via bail hearings is

resolved by considering the available recent statistical

data on the utility of bail. In mid-year 1972, the total

local jail population in the United States was

approximately 141,600 persons. Of that number,

50,800 were awaiting trial. Thirty thousand five

hundred were in other stages of adjudication, including .

some who were arrested but not yet arraigned. Of the

awaiting trial group, approximately 5,700 were charged

with minor offenses including traffic, drunkenness, petit

larceny and simple assault. The average delay for those

awaiting trial was three months. Nearly 50%.of the

total number of persons incarcerated were held in the

jails of six states: Florida, California, Texas, New York

and Pennsylvania.'®

Chief Justice Earl Warren Conference on Advocacy” (1972).

Recommendation XI of that report included these views:

“The presumption of innocence should pervade our system

of criminal justice at all pre-conviction stages. But our

present bail and release on recognizance systems do

violence to that principle and are discriminatory and

arbitrary ... (U)nder our present practices half or more of

accused persons are detained in jail pending trial.”

See: Survey of Inmates of Local Jails; Advance Report.

United States Department of Justice, National Law Enforcement

Assistance Administration, National Criminal Justice and Statistic

Service, Table B. p. 17, and text pp. 5-6 (1974). An earlier

report, the 1970 National Jail Census, United States Department

of Justice, National Law Enforcement Assistance Administration,

National Criminal Justice Statistic Service at pp. 3 and 10 (Table

2) (1971), reflected that Florida was one of the six states which

held over half of all the pre-trial detainees.

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According to the Government, 15 to 20% of those

charged with misdemeanors in the District of Columbia

are unable to make bail pending trial. Government Brief

_4. They remain incarcerated for substantial time

periods. Government Brief 47-48 n. 41.!!

Neither federal nor state bail hearings provide the

chance to be heard on the issue of probable cause. That

denial, .to one who is presumed innocent and deprived

of his absolute right to liberty, makes the hearing

meaningless in the due process context posited by this

case. The hearing is certainly devoid of value to people

who, like the Respondents, are either not entitled to

bond or cannot afford the bail set. App. 6, 10, 31.

Thousands of people in the state and federal systems

share those problems. The bail system has been of

limited use in securing the right to release pending trial.

It is useless in securing the right to be heard on

probable cause. State ex rel. Hardy yv. Blount, supra;

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

D.Expedited Trials and Calendar Control are

Not a Valid Response to the Denial of an

Opportunity to Be Heard Prior to Trial.

The expedited trial part of the trilogy proposed by

the Government is the relief to be afforded if all else

"One of the Government’s statistics is of limited value. It

shows that 60.8% of the cases are disposed of betweenn zero and

45 days. But we have no way of knowing how many in that

group are tried near the end of the 45-day period. What is clear

is that over 14% are not tried within 90 days. Government Brief

48.

15

fails. But it comes too late. What difference does it

make if a defendant is tried in 30, 60 or 90 days if he

should not be tried at all? The probable cause hearing

focuses upon the issue of whether trial is appropriate.

Yhe expedited trial does not address that consideration,

which for a person presumed to be innocent, is an

important one.

Moreover, there is evidence supporting the proposi-

tion that preliminary hearings will encourage speedy

trials. The record in this case, reflecting a 20-25%

decrease in the felony court caseload, shows that

preliminary hearings, by dismissing cases, reducing

charges and accepting pleas, aids in attaining that goal.

The length of pre-trial incarceration for jailed

misdemeanants in the District of Columbia is already

long without preliminary hearings. The Government can

only speculate on the impact that preliminary hearings

would have. The Solicitor General’s pessimism may be

unfounded. In any event, the Government forgets that

an escape valve exists if they find preliminary hearings

intolerable. They may indict instead of using an

information. Indeed, the alarm sounded by the

Government is even too shrill for the state system.

They too may indict.'? Whether such a response would

run afoul of due process arguments similar to those

made here is a question for another day. (See Tr. of

Oral Arg. 60.)

The point is that preliminary hearings may expedite,

not retard, criminal proceedings. But no matter the

The option of indictment also provides an alternative for

those who fear that the cost of providing due process is too

great. That is discussed infra.

pe ERG LPEEM ALLL PE IALS DER

RD Gagne MEA Seeds Ri A wp ce

eee ee eS

16

effect, rushing to trial is no response to this due process

claim. The Government plan would pose a grisly

Hobson’s choice for incarcerated defendants: give up

your preliminary right to be heard or face immediate

trial even if you are not ready. That may not even be

fair to the Government if they have not completed

their investigation.

What is apparent throughout the Government’s Brief

is concern for the cost of providing preliminary

hearings. The expedited trial suggestion is part of that

concern and so we turn to that consideration.

E. Considerations of Cost and Efficiency Do Not

Bar the Respondents’ Claim.

Problems of cost and efficiency are not new

responses to constitutional claims. This Court has

answered by saying:

“A prior hearing always imposes some costs in

time, effort, and expense, and it is often more

efficient to dispense with the opportunity for such

a hearing. But these rather ordinary costs cannot

outweigh the constitutional right. See Bell v.

Burson, supra, at 540-541; Goldberg v. Kelly,

supra, at 261. Procedural due process is not

intended to promote efficiency or accommodate

all possible interests: it is intended to protect the

particular interests of the person whose possessions

are about to be taken.

“The establishment of prompt efficacious pro-

cedures to achieve legitimate state ends is a proper

state interest worthy of cognizance in constitu-

tional adjudication. But the Constitution rec-

17

ognizes higher values than speed and efficiency.

Indeed, one might fairly say of the Bill of Rights

in general, and the Due Process Clause in

particular, that they were designed to protect the

fragile values of a vulnerable citizenry from the

overbearing concern for efficiency and efficacy

that may characterize praiseworthy government

officials no less, and perhaps more, than mediocre

ones.” Stanley v. Illinois, 405 U.S. 645, 656.”

Fuentes. v. Shevin, 407 U.S. at 90 n. 22. See also

Shapiro v. Thompson, 394 U.S. 618, 633 (1969).

Those thoughts are especially. appropriate to the

taking of liberty involved here.

It costs are to be measured at all, they may be offset

by the positive attributes of preliminary hearings.

Reduced jail populations resulted from the initial Pugh

decision and the implementation of a local preliminary

hearing plan. Pugh v. Rainwater, 355 F. Supp. at 1291;

App. 109. Added to those savings are the cost of

human misery which may be alleviated by a preliminary

hearing. Consider the description of one relatively

recent inmate of the District of Columbia jail:

“The first night we were very impressed with the

D.C. jail. It was always around 100 degrees and

=. dripped sweat. At nine or ten o’clock they

ut the lights out, and for a whole hour persons

just screamed at each other and the guards and

everything else. It’s like something out of Dante —

screams, cursing and so forth. I asked one of the

old-timers and he said it is like this every night —

just letting off steam like the hour of frustration.”

Harper's Magazine, October 1974, pp. 56-57.

Since most jailed federal misdemeanant defendants

reside in the District of Columbia jail, it is appropriate

i - _ — LSDILULOOILG SIP ach

| oa at a ROMEO LLNS CONT ¢

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5

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18

to turn to the Government’s request that any

requirement for preliminary hearings be confined to

felony cases.

Il.

INCARCERATED PERSONS CHARGED

WITH MISDEMEANORS BY A PROSECU-

TOR’S INFORMATION ARE ENTITLED TO

A PRELIMINARY HEARING.

A person held for trial upon a misdemeanor charge is

deprived of his liberty as surely as a felony defendant.

The jail cell looks the same to each. While the

Constitution may call for different methods of initiating

felony and misdzmeanor prosecutions, the Due Process

Clause draws no bright lines around one kind of lost

liberty. It is disingenuous to suggest that a misde-

meanant’s pre-trial liberty is less valuable than a felony

defendant’s. The Court has recognized the harm which

flows from any incarceration. Baldwin v. New York,

399 U.S. 66, 73 (1970); Argersinger v. Hamlin, 407

U.S. 25, 37 (1972). ~

The same principles which require a hearing for jailed

felony defendants apply to jailed federal misdemeanor

defendants. Since misdemeanor trials do not occur

quickly in the District of Columbia, the National

Advisory Commission on Criminal Justice Standards and

Goals, Courts, Commentary to Standard 4.3 (1973) is

no defense.'?

The Commentary views the preliminary hearing’s protection

against an unjustified trial unnecessary if a quick trial occurs in

misdemeanor cases. Dade County, Florida, is attempting to meet

that goal. Brief for Respondents, 25, n. 15. The Federal system

apparently cannot. Government Brief 47-48, n. 41.

19

The vast bulk of misdemeanor prosecutions do not

involve pre-trial or post-trial incarceration. The Govern-

ment’s fear that 15-20% of the four to five million

misdemeanor prosecutions in the country would require

preliminary hearings, Government Brief 46, n. 40, is

unfounded. The statistics regarding the number of

people in local jails awaiting trial, supra, should allay

that trepidation.'* See also Brief for Respondents 26, n.

16.

The request to exclude jailed federal misdemeanor

defendants from preliminary hearing requirements

should be rejected. It is constitutionally incongruous to

prohibit one day of incarceration after trial unless a

lawyer is provided or properly waived (Argersinger), but

on the other hand condone lengthy pre-trial in- |

carceration without a hearing. |

I.

NEITHER THE PRIOR DECISIONS OF

THIS COURT NOR HISTORY JUSTIFY

THE DENIAL OF A PRELIMINARY HEAR-

ING TO PERSONS INCARCERATED UPON

INFORMATIONS.

A. The Prior Decisions.

The Respondents have always begun their arguments

by analogizing this case to the recent decisions which

\4The figures showing the number of people who do not

benefit from bail hearings in any way do not reflect the number

of preliminary hearings which might be required under the facts

of this case. Many of those awaiting trial were indicted, a process

not under scrutiny here. The fact that only nine states filed

amicus curiae briefs, and only one of those, Washington, shares

the Florida process, attests to the limited impact an affirmance

will have on the criminal justice system. In the federal system

some 1300 cases would be affected. Government Brief 4.

—— PaO

woe AAAS

DEPORTE RD

en Sed

20

involved similar, but less important, deprivations of

liberty or property. The Petitioners and those support-

ing their position see their strongest support in Hurtado

v. California, 110 U.S. 516 (1884); Lem Woom y.

Oregon, 229 U.S. 586 (1913); Ocampo v; United States,

234 U.S. 91 (1914). Those, and other cases have

already been analyzed by the Court of Appeals, by us,

Respondents’ Brief 27-30, and in the amicus curiae

brief of the National Legal Aid and Defender

Association.'S Fairly read, they do not counter the

arguments we advance.!®

Here we merely reiterate that the issue of preliminary

hearings prior to arrest is not presented. The provisional

remedy of arrest, which is necessary to enable a court

to assert its jurisdiction over a defendant for subsequent

1SWe would add to the NLAD Brief by submitting that

Costello v. United States, 350 U.S. 359 (1956) and Lawn ».

United States, 355 U.S. 339 (1959) focus upon considerations

much different from those presented here. Thus, their dicta, even

though it does not bar our claim, is of limited value.

'S1f by some stretch of logic it could be said that those cases

in any way determine the contemporary claims of this case, the

adage “Law must govern life, and the very essence of life is

change” is a thought worthy of consideration. Pound, Criminal

Justice in America 36 (1930). So too is Justice Pitney’s

comment, responding to an argument that due process is

immutable:

“

... to hold that such a characteristic [immutability] is

essential to due process of law would be to deny every

quality of the law but its age, and to render it incapable of

progress or improvement. It would be to stamp upon our

jurisprudence the unchangeableness attributed to the laws

of the Medes and Persians.”

Hurtado v. California, 110 U.S. 516, 529 (1884).

21

trial is unaffected by a subsequent judicial deter-

mination of probable cause. So Ocampo’s comment that

determining probable cause for “arrest” may be

delegated to a quasi-judicial officer does not mean that

the decision to arrest forecloses judicial review prior to

trial? Even a search warrant, issued by a judicial

officer may be reviewed prior to trial in an adversary

setting. Yet the Government would have us believe that

liberty, taken by a prosecutor's ex parte information

and the warrant that issues thereafter is beyond

scrutiny until trial. No case supports that proposition.

17The Government’s misunderstanding of this distinction is

apparent thoughout their brief. Thus they quote cases which are

inapposite. For instance, United States ex rel. Hughes v. Gault,

271 US. at 149:

“The Constitution does not require any preliminary hearing

before a person charged with a crime against the United

States is brought into the court having jurisdiction.”

(Emphasis supplied.)

Government Brief 29-30, n. 25;

and United States v. Bland, 472 F. 2d at 1337:

“We cannot accept the hitherto unaccepted argument that

due process requires an adversary hearing before the

prosecutor can exercise his ago-old function of deciding

what charge to bring against whom.” (Emphasis supplied.)

Government Brief 42, n. 36.

The error is perpetuated to the end of their Brief when they

utilize Calero-Toledo v. Pearson Yacht Leasing, __US. — 94

S. Ct. 2080 (1974). The taking without a hearing in that case

was necessary to assert jurisdiction over the boat before it was

removed from the jurisdiction. We have no quarrel with that

process as long as there is a chance for early subsequent review.

22

B. History.

The historic purpose of the preliminary hearing

remains unchanged today:

“The object or purpose of the _ preliminary

[hearing] is to prevent hasty, malicious, im-

provident, and oppressive prosecutions, to protect

the person charged from open and public accusa-

tions of crime, to avoid both for the defendant

and the public the expense of a public trial, and to

save the defendant from the humiliation and

anxiety involved in public prosecution, and to

discover whether or not there are substantial

grounds upon which a prosecution may be based.”

Thies v. State, 178 Wis. 98, 189 N.W. 539, 541

(1922).

The emergence of public prosecutors in the United

States did not render preliminary hearings superfluous.

Every state provides for such hearings. Respondents’

Brief, App. la - 2a. From the amicus curiae briefs filed

in this case, it appears that they are both used and

useful. While the prosecutor has “‘provided a new and

professional medium of screening” as the Government

submits, there is no reason to think he has supplanted

preliminary hearings. His function is complemented by

a preliminary hearing which permits an opportunity to

be heard.

It would be ironic if the ex parte prosecutorial

determination were now considered to obviate the

impartial probable cause inquiry which gradually

evolved in England, merely because the” English inquiry

preceded the formal charge. That would result in a step

backwards and yet the Government argues for it: The

23

preliminary hearing is emptied of its normal and

traditional purpose if it is held after the filing of... an

information”. Government Brief 28.

‘It appears that only a handful of states agree with

that proposition. “In most jurisdictions an information

may not be filed unless a judge is convinced that

probable cause exists.” Katz, Justice is the Crime,

Pretrial: Delay in Felony Cases 17 (1972) (footnote

omitted). The caution is well founded:

“Evidence exists from the reign of Edward I that:

the king, through his legal representatives, the

sejeant of treason or the sejeant of felony

(forerunners of the modern, prosecutor) accused

persons of felony or misdemeanor cases in the

Court of The Star Chamber and thus avoided the

grand jury.”

Id, Katz at 16:

“The information procedure was eventually mis-

used by Crown officials through malicious prosecu-

tions. This abuse was remedied by the Statute of 4

Will. & Mary, c. 18 (A.D. 1692) which forced the

Master of the Crown Office into a proceeding with

a magistrate. 1 J. Stephen, A History of the

Criminal Law of England, 294-97 (1883).”

Id at 16-17, n. 34.

We imply no malice in present day prosecutors. But

history does suggest that any secret, ex-parte deter-

‘minations made by police and prosecutors which

substantially affect a person’s right to liberty, ought to

be open to subsequent judicial review.

By asking that this Court clothe informations with

sanctity until trial, the Government is seeking a radical

2 TEER IPI a 8 « + eed aaty

it ESS

Bieta

24

enlargement of prosecutorial powers throughout the

United States. We submit that their arguments must be

rejected.

CONCLUSION

For the foregoing reasons, the decision below should

be affirmed.

Respectfully submitted,

BRUCE S. ROGOW

Nova University Center for the

Study of Law

3301 College Avenue

Fort Lauderdale, Florida 33314

PHILLIP A. HUBBART, Public Defender

for the Eleventh Judicial Circuit

Metropolitan Justice Building

1351 N.W. 12th Street

Miami, Florida 33125

Counsel for the Respondents

A COMPARISON OF INTERESTS RELEVANT TO DUE PROCESS DETERMINATIONS

APPENDIX

la

emotional injury in

pil

CASE THE RIGHT INVOLVED | THE DEFENDANT’S THE HARM CAUSED THE

CLAIM TO THE TO DEFENDANT BY PAR

LIBERTY OR PROPERTY| VIRTUE OF THE INT

DEPRIVATION

Gerstein v. Pugh Liberty Absolute Loss of Freedom; pos- To

sible loss of job, dictio

reputation; possible (conti

physical or emotional cust

injury in jail essen

Mitchell v. Property Conditional Loss of use of stereo, Tor

W.T. Grant stove, refrigerator, and p:

washing machine loss o

pendi

Fuentes v. Property Conditional Loss of use of stereo To re

Shevin and stove and p’

. loss o

pen

Sniadach v. Family Property Absolute Loss of up to 50 per- To in:

Finance Corporation cent of wages of

Morrissey v. Liberty Conditional Loss of freedom; pos- To i

Brewer sible loss of job; pos- upon

sible physical or defe

emotional injury in

pil

Gagnon y. Liberty Conditional Loss of freedom; pos- Tor

Scarpelli sible loss of job; pos- upon

sible physical or defe:

SV PLE NETS IT EO ADAG BENE Hagia ce

lia a nT OE,

j

WATIONS

|

THE OPPOSING WAS THERE JUDICIAL | IS THERE JUDICIAL THE METHOD OF RE-_ | PREREQUISITES FOR THE REMEDY FOR PRESENT PROCEDURES | STATE’S OBJECTION IS ATTEMPTED

PARTY'S INTEREST SUPERVISION OF SUPERVISION OF TAK- | GAINING LOST TAKING UNDER IMPROVIDENT AVAILABLE TO PRELIM-| TO PROVIDING PROMPT | DEPRIVATION

IN THE TAKING TAKING UNDER ING UNDER SUPREME | INTEREST FOR THOSE | ATTACKED SCHEME TAKING INARILY TEST PRELIMINARY HEAR- | BASED UPON

ATTACKED STATU- COURT DECISION? FINANCIALLY ABLE THE VALIDITY OF THE | INGS DEMANDED BY UNDERLYING

TORY SCHEMES? TAKING THE DEFENDANTS WRITTEN

AGREEMENT?

To assert Juris- No maeseasict iy Bond, at Arrest, filing of None None Economy and No

diction for trial _| discretion of information efficiency

(continued physical judicial official (or information,

custody not arrest)

essential)

Action against bond; :

To recover property Yes Yes Absolute right to Demand and bond availability of Immediate post- Economy, efficiency, Yes, signed

and protect against regain property attorneys fees and dam- | deprivation { protect creditors conditional sales

loss or depreciation through posting of ages for injury to adversarial hearing rights to property contract

pending trial bond. social standing reputa- upon request

tion, humiliation and

mortification.

To recover property No Yes Absolute right to Demand and bond Action against bond Automatic prior Economy, efficiency, Yes, signed

and protect against regain property hearing protect creditors’ conditional sales

loss or depreciation through posting of rights to property contract

pending trial bond.

To insure payment No Yes None Demand and bond Action for return of Automatic prior ? Yes, signed

of alleged debt money hearing promissory note

.

~~

~

ss =

To impose punishment Initially, at No, although a None Adjudication, Habeas corpus Automatic subsequent Economy, efficiency Yes, parole

upon convicted sentencing, yes. : neutral and de- sentence, parole, . adversarial hearing agreement

defendant Thereafter, no. tached arbiter is rearrest after arrest (not clear if

required. signed)

2

To umpose punishment Initially at No, although a None : Adjudication, |Habeas corpus Automatic subsequent Economy, efficiency Yes, signed

upon convicted sentencing, yes. neutral and de- sentence, probation, hearing after arrest probation

defendant Thereafter, no. tached arbiter is rearrest (ability to cross- agreement

required. examine witnesses

depends on geographi-

cl circumstances) -

WR PB“ wePRe Clr tre om EID CEL DEA NI LISI LCL LE IED NORM: