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May 12, 1970

UNITED STATES of America ex rel. Jesse WILLIAMS, II, Petitioner,
H.W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent

Pollack, District Judge.

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

Dr. Jesse Williams, II, an inmate serving from five to ten years at Green Haven Prison in Stormville, New York, petitions for habeas corpus relief.

 Williams, who was once a duly licensed physician, was convicted of first degree manslaughter by the New York County Supreme Court after a second jury trial in October, 1966. His manslaughter prosecution was brought under Section 1050 of the old New York Penal Law (McKinney's Consol. Laws, c. 40, 1944) and he was found guilty of causing the death of a woman while attempting to procure her miscarriage, the same not being necessary to preserve her life. On September 23, 1969, petitioner's conviction was affirmed, without opinion, by the Appellate Division of the Supreme Court, First Department. Leave to appeal to the New York Court of Appeals was denied on October 9, 1969.

 Williams may be understood to have raised six claims herein: i.e., the denial of due process by virtue of (1) the insufficiency of the evidence against him, (2) the trial court's refusal to allow him to testify as an expert medical witness in his own behalf, (3) the trial court's refusal to charge as requested, and (4) the prosecutor's wilful use of allegedly perjured testimony of Dr. Henry Siegel; (5) the prosecution was under an unconstitutional statute, and (6) the denial of equal protection and a fair appellate review by the failure on the appeal to provide defendant with a transcript of the testimony given at the first trial by the principal witness for the prosecution.

 Three of the enumerated grounds of attack warrant special attention.


 During the pendency of petitioner's appeal before the Appellate Division, Williams by a letter dated May 12, 1969, requested copies of the stenographic minutes of his second trial and the transcript of the testimony at the first trial of Dr. Henry Siegel, the deputy chief medical examiner. The state appellate court provided Williams with the minutes of his second trial but declined his application for the requested portion of the first trial transcript. By a letter dated May 15, 1969, the Clerk of the Appellate Division, First Department, advised petitioner that "the first trial terminated in a disagreement, and that no minutes were transcribed."

 Petitioner claims he needed the transcript of the earlier testimony to show that Dr. Siegel's testimony at the second trial was perjured and that the prosecutor, who tried both cases, knew of substantial discrepancies in Siegel's testimony. The prosecutor is charged with wilfully employing tainted evidence. See, Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935); Anderson v. United States, 403 F.2d 451, 454 (7th Cir. 1968), cert. denied, 394 U.S. 903, 89 S. Ct. 1009, 22 L. Ed. 2d 215 (1969). Williams has not enumerated any specific instances of untruthful testimony, but he asserts that a side-by-side comparison of the two versions given by Dr. Siegel will reveal material inconsistencies.

 Apparently overlooked was the existence in fact of a transcript of Dr. Siegel's prior testimony; such a transcript apparently was used at the second trial (Trial Rec. at 372-76; see also, sentence transcript at 5-6), and this may presently be in the possession of either petitioner's trial counsel or the prosecutor. Petitioner avers that he has had no contact with his trial counsel since the day he was sentenced, that such counsel have failed to respond to his "numerous letters" and that no portion of the first trial's transcript was available to him when he prepared his pro se appeal.

 A line of cases dating from more than a decade ago has "made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." Roberts v. LaVallee, 389 U.S. 40, 42, 88 S. Ct. 194, 196, 19 L. Ed. 2d 41 (1967), and cases there cited. It is undisputed herein that petitioner is indigent and that appellants with adequate resources could have caused the minutes of the first trial to be transcribed by paying a fee to the stenographer. Petitioner was, of course, present at both his trials and heard any discrepancies between the testimony at the prior and subsequent one. However, more than two years had elapsed after the second trial before Williams' appeal was considered. Without the transcript in question, petitioner may not have been able to marshal any testimonial discrepancies relied upon and intelligently press his claim that perjurious testimony was wilfully used against him. Moreover, this is a case where the subject of the proceeding, testimonial discrepancies on the part of Siegel, can only be illuminated by examining both documents. Compare United States ex rel. Caster v. Mancusi, 414 F.2d 743, 744 (2d Cir. 1969).

 Under the circumstances, therefore, the state should locate the minutes in question or have another transcript prepared of Dr. Siegel's testimony and submit the same to the petitioner within 30 days. Cf. Wade v. Wilson, 396 U.S. 282, 90 S. Ct. 501, 24 L. Ed. 2d 470 (1970). In view of the fact that neither petitioner nor the appellate courts of New York had the benefit of the prior transcript at the time the issue of the prosecutor's wilful use of perjured testimony was considered, and in light of my determination on the constitutional issue, it is proper to give the New York courts another opportunity to consider this claim. Cf. United States ex rel. Martin v. McMann, 348 F.2d 896, 898 (2d Cir. 1965) (en banc).


 The third claim warranting special attention is that the statute under which the petitioner was prosecuted is unconstitutional. The old New York Penal Law § 1050 (McKinney's 1944) is set forth in pertinent part in the margin.* It is noteworthy that although petitioner was convicted of manslaughter, the conviction was premised solely on the findings that he had performed an abortion, that the abortion produced the death of his patient, and that the operation was not necessary to preserve her life. In no respect was the prosecution based on the theory that death resulted from the physician's criminal negligence. [Compare New York Penal Law § 125.10 (McKinney's 1967); this provision became effective on September 1, 1967, N.Y. Laws 188th Sess. -- 1965, ch. 1030, and no comparable provision existed under New York law at the time petitioner was tried.]

 Petitioner has attacked the statute on numerous grounds, including the ground that laws imposing criminal punishment for the performance of abortions violate a fundamental constitutional right, inherent in notions of privacy, of women to choose whether to bear children. See Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970, three-judge court); People v. Belous, 71 Cal. 2d 954, 80 Cal. Rptr. 354, 359, 458 P. 2d 194, 199 (Cal. Sup. Ct. in bank 1969); People v. Robb, Docket Nos. 149005 & 159061 (Orange County, Calif., Mun. Ct. Jan. 9, 1970). Contra, Commonwealth v. Brunelle, Docket No. 83879 (Super. Ct. Middlesex County, Mass. Feb. 26, 1970). Williams has also alluded to recent cases in other jurisdictions which overturned abortion laws on the additional grounds that statutory schemes which exempt from punishment the performance of abortions "necessary to preserve" the life of the expectant mother are unconstitutionally vague, People v. Belous, supra; United States v. Vuitch, 305 F. Supp. 1032 (D.D.C. 1969), prob. juris. noted, 397 U.S. 1061, 90 S. Ct. 1497, 25 L. Ed. 2d 683 (April ...

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