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July 20, 1967

UNITED STATES of America ex rel. Anthony BRUNO, Petitioner,
Ross E. HEROLD, M.D., Director of Dannemora State Hospital, Dannemora, New York, Respondent

The opinion of the court was delivered by: FOLEY


 JAMES T. FOLEY, District Judge.

 After considerable experience for many years with prolonged habeas corpus proceedings involving State prisoners of New York, it seems this present one may have been drawn-out for the longest period. I have written three decisions setting forth my viewpoints, findings and conclusions upon the question presented which from the beginning impressed me as one of consequence. Such feeling of substance remains to this date. All Judges, I suppose, being human, are inclined to be opinionated, stubborn and prideful about their previous views. I have the same fault, but have not been always unbending. (See United States ex rel. Kiernan v. LaVallee, (NDNY), 191 F. Supp. 455, 460).

 The sole question involved is what I thought was the arbitrary and wrongful exclusion of the general public from a criminal trial held in Brooklyn in 1947. Such exclusion, in my judgment, after conscientious review, was without justification or support in the record for such drastic action. My philosophy as to the restraint to be exercised by federal judges in the intrusion of federal habeas corpus to upset old state convictions has been stated often. (See United States ex rel. Walker v. LaVallee, (NDNY), 194 F. Supp. 351; 224 F. Supp. 661).

 In my first decision in this proceeding I issued the writ of habeas corpus for the production for a hearing of petitioner-prisoner Bruno, who had been convicted at the trial and sentenced in 1947 to 30-60 years. (D.C., 233 F. Supp. 546, September 1964). The second decision sustained the writ after the hearing and set aside conditionally the judgment of conviction. (D.C., 246 F. Supp. 363 (October 14, 1965)). The third is in 39 Fed.Rules Decisions, 570 (March 23, 1966), reaffirming the previous decision and relates to a State motion under F.R.Civ.Proc. 60(b)(6) to be relieved from the October 14th order sustaining the writ.

 It should be noted at the outset of this fourth decision that one of the points raised preliminarily to the merits herein was that deprivation of a public trial under the federal Sixth Amendment was not binding upon the States. In the decision reported in 246 F. Supp. 363, at page 367, I listed the significant Supreme Court cases which led me to contrary conclusion. To those may now be added Spevack v. Klein, (1967), 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574; Klopfer v. State of North Carolina, (1967), 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1.

 The order sustaining the writ and voiding the conviction was reversed by the Court of Appeals, Second Circuit, "and the case is remanded for rehearing." (United States ex rel. Bruno v. Herold, (1966), 2 Cir., 368 F.2d 187). With due deference, I must admit the writing of reversal and remand per curiam by two of the three-judge panel has puzzling aspects for my present role in the proceeding. The majority did state that under the record as made the act of the State Judge in clearing the courtroom was well within his discretion. Upon the same record I gave full credence and weight to the new affidavits supplied, but my findings and conclusions are to the contrary. Judge Moore, in his separate concurrence, it is evident unquestionably was at the stage to reverse unequivocally without remand for rehearing, being satisfied that the trial judge acted within the broadest discretion that must be accorded acts of this kind. Judge Moore stressed that experienced counsel with knowledge of the previous circumstances that prompted the Court's action felt that an objection was unwarranted, did not object and in effect waived intelligently the public trial right.

 I am fully aware and completely cognizant from the writing that the Circuit Court is of a mind to disagree with my ruling, and leans toward flat reversal. However, reversal and differing conclusions are circumstances and events with which District Judges after some experience are not too unfamiliar. My decision was made in accord with my firm convictions. It may only be an act of appellate grace for which I am appreciative that instead of reversal rehearing was ordered with this conclusion:

"It may well be that on rehearing with a full opportunity to both parties to examine and cross-examine witnesses and offer other evidence, the trial court may find the facts to be quite different from those herein assumed for the purpose of testing the denial of the Rule 60(b) motion, and in rendering this decision we do not intend to prejudge that factual issue."

 Pursuant thereto, when the rehearing was held on February 6, 1967, I not only heard the testimony of Judge Leibowitz, Judge Helfand (the prosecutor in 1947), and defense counsel Brodsky, all of whom had previously submitted affidavits in this proceeding after their recollection had been refreshed, but also the petitioner Bruno again at his request, and his brother, Alphonse Bruno, an important witness, in my opinion. The brother had never testified previously or submitted an affidavit in this habeas corpus proceeding.

 The record references herein will be to the hearing of February 6, 1967. Assistant Attorney General Lewittes, who appeared for the Respondent State Director at the hearing, questioned my attitude to hear all witnesses offered by either side, and objected to this expansion. He argued that the remand direction of the Circuit Court did not authorize such ruling and the inquiry should be restricted to the credibility of matters contained in the Judges' and defense counsel's affidavits that previously had been submitted and considered. (R. 49-54). My policy always has been in federal habeas corpus involving State prisoners usually in confinement, as Bruno is, to abandon virtually the legal procedural and evidentiary technicalities applicable in other civil proceedings in order to facilitate presentation by a person hampered to some degree in presentation of his claims. I am content with the ruling on my part that allowed full hearing, and feel as I interpret the directive words of the Appellate Court for hearing quoted above that it should not be otherwise.

 Evidentiary hearings and rehearings that produce live witnesses, further exhibits and records not previously offered or considered, as every trial judge and trial lawyer knows, are advantageous to a better grasp of the true trial atmosphere. A cold, printed record is always handicapped in that portrayal. Beside the five live witnesses who testified in the last hearing here in Albany there were offered and received in evidence Respondent's Ex. A - a transcript of the trial that ended in mistrial on May 22, 1947 before Judge Goldstein; a bound volume entitled "Records and Briefs No. 403, Miles F. McDonald, District Attorney", which contains the record on appeal of the two-day trial had before Judge Leibowitz on May 26 and 27, 1947, carrying through to the sentencing of Bruno and his co-defendants in September, 1947. The references to this Record of the District Attorney shall be by ROA symbol. These records are important aids to illuminate the background and conduct pertinent to the dominant issue we have here, namely, the exclusion of the public that occurred immediately after DiBari was sworn as a prosecution witness and before he testified at the trial before Judge Leibowitz. (ROA 61).

 DiBari was the sole identification witness of the three defendants on trial charged with Armed Robbery, Grand Larceny and Assault. Judge Helfand, at the hearing before me, candidly stated without such testimony of DiBari he had no case. (R. 23). In fact, I think it is important to read the entire testimony of DiBari in the "Records and Briefs" noted above, from p. 61 through p. 111, in order to evaluate whether or not there was a free flow of his testimony and whether or not it is indicative in itself of an overwhelming obsession of fear just before or at the time he gave it. This testimony of DiBari - and he gave several physical demonstrations to describe incidents occurring at the Robbery - commenced on May 26, 1947 and ended the following morning of May 27th.

 There was also presented at the rehearing a large Clerk's docket book, marked "Part 3, May 13 - November, 1947", also never before submitted to me in the proceeding which was referred to by Judge Leibowitz to correct his affidavit of January 7, 1966 in certain respects. (R. 33-36). The correction to be made was that in his affidavit it was averred that the following morning after DiBari completed his testimony "the courtroom was reopened to the public." The Judge explained at the rehearing that this court docket or log book indicates to him that he had numerous criminal matters, sentences, motions, etc., on the morning of May 27th, and the courtroom was crowded with lawyers and defendants, and so forth. Thereafter, it is now his impression from this record, the doors remained open to the public in the usual course after these preliminary matters and there was no need to announce readmission of the public for the Bruno trial. The trial the Judge reconstructs continued as a matter of course, and: " Nobody stopped anybody from coming in the following day." (R. 34-36). This is the morning of May 27th when DiBari was to continue as a witness. It should be noted at this point there is nothing in the docket book referring to the exclusion statement of ...

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