The opinion of the court was delivered by: POLLACK
Since bail was fixed for the defendant Melville, detailed facts have come to the attention of the Court having a material bearing on the discretion to be exercised which compel a modification of the terms previously set for the release of the defendant pending trial.
The history of the bail arrangements thus far is that following arrest the United States Commissioner on November 13, 1969 set $500,000 as the required bail. This was reduced by him on the following day to $300,000.
A hearing was held before Judge Frankel on November 14, 1969 in respect of bail, and in an opinion on November 15, 1969, D.C., 306 F. Supp. 124, Judge Frankel imposed certain non-financial conditions and reduced the financial requirement to $50,000. The defendant was remanded, being unable to meet the conditions.
On November 18, 1969 the Grand Jury filed an indictment charging defendant with conspiracy to destroy federal property, and the defendant pleaded not guilty to the indictment on November 24, 1969. At that time the Court continued the same terms for bail. The Court heretofore necessarily was required to consider the bail question on the basis of adversary contentions as to the facts and circumstances, and affidavits prepared by partisans without test in the crucible of cross examination as well as on the basis of defendant's pleaded denial of culpability and the presumption of innocence which the Court was constitutionally bound to respect.
At hearings held on December 29th, 30th and 31st, 1969, the government presented witnesses who were closely questioned on cross examination in respect of the cause for the arrest, the alleged inculpatory statements of the defendant and the surrounding facts and circumstances. Not only was the Court given the verbal testimony, but it had the opportunity to judge the demeanor evidence of the witnesses produced by the government.
The evidence of the government, and I ignore for purposes of this hearing all testimony given by the defendant as a witness, presented for the first time tangible, convincing, adversary-tested proof of crimes of enormous import and gravity. Theretofore, it was conjectural just how far the partisan counsel had over-or understated the situation.
The evidence overwhelmingly establishes that the defendant was seized at the scene of the crime carrying a knapsack loaded with dynamite and additionally armed with a loaded pistol in a shoulder holster and a tear gas "pen" in his pocket. The crime charged is, indeed, grave.
No designated responsible organization or designated responsible person has come forward to accept responsibility for defendant's future appearance in court. The names of those given to the Court have not been shown except by confident assertion, to be in the class of persons who view responsibilities to the law as it now is as the proper guideposts of proper conduct.
The defendant has no tangible or intangible roots in the law abiding community. He has no employer. He is separated from his wife and eight year old child. He claims indigency. In short, there are no moral, social or financial principles or ties which could act as a reasonable assurance or influence in having him observe the obligation to appear in court as required or for trial. The obvious incentive for this defendant without roots or other influencing factors would be to flee the jurisdiction or hide and fail to appear for trial under the circumstances of such a strong case against him.
The purpose of setting bail is not to purchase freedom from the hold of the law, but as a guarantee which reasonably assures the return of the defendant to court. A naked money deposit in and of itself fails to serve as the necessary reasonable assurance when its multiple sources are from persons who would not consider themselves materially affected by the loss of their contributions if their overriding cause were being served by the freedom of their friend and ally. Such deposits would, realistically speaking, have no more influence with this defendant than have the restraining influence of rules of law and the tenets of organized society, which the defendant is charged with violating.
The law plainly is that before a conviction, a person arrested for a non-capital offense shall be admitted to bail and a defendant should not needlessly be detained.
There is a strong policy against unnecessary detention of a defendant pending trial.
An order of release on proper terms is, in my opinion, an absolute right prior to conviction. These principles must be applied with an awareness of reality and the facts of ...