The opinion of the court was delivered by: PALMIERI
PALMIERI, District Judge.
The fourteen petitioners, thirteen of whom are members of the Black Panther Party for Self-Defense, await imminent trial before New York State courts on charges of conspiracy to commit crimes of violence by bombing and other means. The crimes for which they have been indicted include four counts of attempted murder, arson in the first degree, attempt to commit arson, possession of weapons, and conspiracy. According to one counsel for defendants, the minimum sentences that would be imposed on defendants if they were to be found guilty as charged would amount to "some seventy years, and maximum sentences of something astronomical."
They are again before this Court upon petitions for writs of habeas corpus. 28 U.S.C. § 2254. Their prior petitions for writs of habeas corpus were ruled upon by this Court in an opinion dated June 19, 1969, 303 F. Supp. 299. The discussion which follows assumes a familiarity with that opinion.
The basis for petitioners' alleged grievances is that they have been denied reasonable bail, and that the bails presently set for the petitioners are exorbitant and excessive and in violation of the eighth and fourteenth amendments to the Constitution.
The bail originally fixed for all petitioners was $100,000 each. On motions for reduction of bail, justices of the New York courts reduced the bail to $50,000 each for petitioners Tabor and Squires, to $25,000 for petitioner Josephs, and to $10,000 for petitioner Epps. Petitioner Epps has posted bail and is at liberty. The other petitioners are presently incarcerated in lieu of bail.
A basic requirement to petitioners' right to relief from this Court rests upon their prior exhaustion of state remedies. This is made clear by the statute upon which the petitioners proceed, 28 U.S.C. § 2254(b), and by numerous decisions. Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761 (1950); United States ex rel. Kling v. LaVallee, 306 F.2d 199 (2d Cir. 1962). Indeed, it was upon this ground that the bail issues posed by petitioners' prior applications were left undecided by this Court.
In this proceeding, however, two of the petitioners, Tabor and Squires, have concededly exhausted their state court remedies since the New York Court of Appeals affirmed an order fixing their bails at $50,000 each.
The other petitioners, following New York procedure, have appeals pending before the New York Court of Appeals after unsuccessful attempts to reduce their bails by way of habeas corpus applications before the lower state courts. See, People ex rel. Shapiro v. Keeper of City Prison, 290 N.Y. 393, 49 N.E.2d 498 (1943); Gilbert Bliss, Bk. 2, CPLR, § 7002; Code of Criminal Procedure, §§ 517, 566. These pending appeals have not yet been argued before the New York Court of Appeals and it appears likely that the petitioners' trial may commence before a review by that court can be obtained. The earliest date upon which the matter can be heard by the Court of Appeals is September 23, 1969, but because of other business, and even on an expedited basis, it appears likely that it will not be reached until October. Since the petitioners may be foreclosed by these time limitations from obtaining the relief they seek before trial, they will be deemed to have exhausted their state remedies for the purposes of these proceedings. The statute pursuant to which petitioners are before this Court appears to contemplate precisely such a situation in referring to "the existence of circumstances rendering such process ineffective to protect the rights of the prisoner," 28 U.S.C. § 2254(b), as an alternative to a showing that the remedies available in the courts of the state have been exhausted. See Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Darr v. Burford, 339 U.S. 200, 210, 70 S. Ct. 587, 94 L. Ed. 761 (1950).
The Bail Standards Applied by the New York Courts
The traditional bail standards applied in New York are entirely consistent with the principles enunciated by the Supreme Court in Stack v. Boyle, 342 U.S. 1, 8, 72 S. Ct. 1, 96 L. Ed. 3 (1951) and have been set forth in People ex rel. Lobell v. McDonnell, 296 N.Y. 109, 111, 71 N.E.2d 423 (1947), recently approved by the New York Court of Appeals in People ex rel. Gonzalez v. Warden, 21 N.Y.2d 18, 25, 286 N.Y.S.2d 240, 233 N.E.2d 265 (1967), cert. denied, 390 U.S. 973, 88 S. Ct. 1093, 19 L. Ed. 2d 1185 (1968). A New York judge is required to take the following factors into account when exercising his discretion in setting bail:
"'The nature of the offense, the penalty which may be imposed, the probability of the willing appearance of the defendant or his flight to avoid punishment, the pecuniary and social condition of defendant and his general reputation and character, and the apparent nature and strength of the proof as bearing on the probability of his conviction.'" People ex rel. Lobell v. McDonnell, 296 N.Y. 109, at 111, 71 N.E.2d 423, quoted with approval in People ex rel. Gonzalez v. Warden, supra, 21 N.Y.2d at 25, 286 N.Y.S.2d at 244, 233 N.E.2d at 269.
In approving of the bails set for petitioners Tabor and Squires, the Court of Appeals found that these "classic tests for fixing or denying bail" had been met, and concluded by stressing that the high bail fixed imposed a correlative obligation on the part of the prosecution to afford the petitioners an immediate trial.
Of course, the defendants' right to a speedy trial, a guarantee that prevents "undue and oppressive incarceration prior to trial," United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776, 15 L. Ed. 2d 627 (1966), acquires special significance under these circumstances and is appropriately a matter of concern to the federal as well as to the state courts since this right "is as fundamental as any of the rights secured by the Sixth Amendment." Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1 (1967).
Intervention by the Federal Court in the Matter of Bail Set by the State Court
Federal courts have the power to review the actions of state courts in denying or fixing bail when it is alleged that the state action violates applicable provisions of the Constitution. In re Shuttlesworth, 369 U.S. 35, 82 S. Ct. 551, 7 L. Ed. 2d 548 (1962); Brown v. Fogel, 387 F.2d 692 (4th Cir. 1967); Dameron v. Harson, 364 F.2d 991 (5th Cir. 1966), aff'g on opinion below, 255 F. Supp. 533 (W.D.La.1966); Mastrian v. Hedman, 326 F.2d 708 (8th Cir. 1964), cert. denied, 376 U.S. 965, 84 S. Ct. 1128, 11 L. Ed. 2d 982 (1964); United States ex rel. Covington v. Coparo, 297 F. Supp. 203 (S.D.N.Y.1969). But the federal ...