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June 19, 1969

UNITED STATES of America ex rel. Lumumba Abdul SHAKUR et al., Petitioners,

The opinion of the court was delivered by: PALMIERI

PALMIERI, District Judge.

 The petitioners who are before this Court by way of a writ of habeas corpus (28 U.S.C. ┬ž 2254), are prisoners of New York State being held for trial under high bail on serious charges. The sole respondent, the Commissioner of Corrections, is the city official responsible for the custodial arrangements affecting the petitioners.

 A twelve count indictment returned by a New York County grand jury accuses petitioners and other persons, all but one of whom are members of the Black Panther Party for Self-Defense, of conspiring to murder New York City policemen, to dynamite certain midtown department stores, the premises of the 25th Police Precinct, six railroad rights of way, and the New York Botanical Gardens.

 At the outset the petitioners claimed a right to review of their bail status by this Court. It now appears that they are in the process of seeking a review by the New York State appellate courts. Accordingly, it is assumed that these claims are not presently before this Court.

 The petitioners make numerous and extensive allegations which amount substantially to this: that, because of deliberate action on the part of the prosecutor, acting in concert with the judiciary charged with the trial of this case, they have been affected by such extensive prejudicial publicity, and that the management of the pretrial phases of the case both by prosecutors and judges has been so infected by improper conduct as to taint the proceedings and make it impossible for them to have a fair trial. The trial is expected to take place in the very near future.

 Petitioners seek their release, or in the alternative an evidentiary hearing at which they may prove their charges, and a stay of the state court proceedings.

 Considerations of comity and a strong respect for the federal system have fostered a practice whereby United States district courts will grant an application for habeas corpus by one detained under state processes only after all state remedies available, including all appellate remedies in the state courts, have been exhausted. See Ex Parte Brady, 104 F. Supp. 57 (D.C.Mass.1952); Fulwood v. Stone, 129 U.S.App.D.C. 314, 394 F.2d 939 (1967). The requirement of the exhaustion of state remedies and the extent to which state remedies must be exhausted before federal habeas corpus will lie, furthermore, are set forth in federal statutes. *fn1" It follows that where state prisoners seek federal relief by way of writ of habeas corpus, the threshhold question is whether they have exhausted appropriate state procedures for raising the same claims.

 The grievances alleged by petitioners herein may be separated into three general categories: bail, pretrial publicity, and propriety of the assignments of the state court judges to the case.

 Insofar as bail applications are concerned, the papers submitted in support of this petition do not indicate that state court remedies have been exhausted, and that claim is therefore not properly before this Court at this time.

 With respect to the question of the assignment of the trial judge, petitioners have available remedies in the state court which, if denied in the first instance, may be pressed in the appellate courts of the state. The remedies for the resolution of this issue have not, therefore, been exhausted.

 The final question, and the one to which this petition is principally directed, relates to the allegedly prejudicial publicity which this case has engendered. In the first instance, however, the task of insuring that these defendants receive a fair trial, free from the effects of any adverse publicity, must fall to the trial judge. This Court can reasonably assume that the judge who is ultimately charged with the trial of this case will be aware of the Supreme Court's warning in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), that "due process requires that the accused receive a trial by an impartial jury free from outside influences" and that "trial courts must take strong measures to ensure that the balance is never weighed against the accused." 384 U.S. at 362, 86 S. Ct. at 1522. Additionally, Justice Clark, the author of the majority opinion, said:

"The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures."

 The right to a fair trial is one which is federally protected, U.S.Const. Amend. XIV, and it is possible that in a post trial posture that issue may be raised before some federal tribunal. Since the responsibility for insuring a fair trial to these defendants is one which falls to the state trial court in the first instance, at this stage it would be unwise and, indeed, unwarranted, for this Court to intervene. It may be true that the rights which these petitioners seek to have protected will not be vindicated without a long and difficult appellate journey, but that is a price which must be paid for the proper balance of federal-state relationships.

 Petitioners do not appear to press the position that they have fully exhausted their state court remedies. Rather they argue that the rule relating to exhaustion of remedies, which is primarily a rule derived from the principle of comity, must yield where special circumstances are involved. Fulwood v. Stone, supra. Assuming the validity of this principle, the question remains ...

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