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BLYDEN v. HOGAN

November 30, 1970

Herbert X. BLYDEN, Jack X. Collins, Herbert Scott X. Deane, Stanley X. King, Plaintiffs,
v.
Frank HOGAN, individually and as District Attorney of New York County, George McGrath, individually and as New York City Commissioner of Corrections, Milton Batterman, individually and as Warden of the Manhattan House of Detention for Men, Defendants


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

LASKER, District Judge.

As an aftermath of the recent riots by prisoners (involving the taking of hostages and destruction of property) at the Manhattan House of Detention and other New York City jails, investigations are being made to determine criminal responsibility. In the course of the investigation by the District Attorney of New York County, his office has requested prisoners, without the presence of their counsel and without prior advice of their right to counsel (the Miranda warnings) to sign a waiver in the following form:

 
DISTRICT ATTORNEY'S OFFICE
 
COUNTY OF NEW YORK
 
Date
 
I hereby consent to be taken to the District Attorney's Office, New York County, to be interviewed whenever the District Attorney may deem it necessary, with or without the presence of my attorney.
 

 Plaintiffs are prisoners at the Manhattan House of Detention, and apparently were inmates at the time of the riots. They bring this civil rights class action under Title 42 U.S.C.A. §§ 1983, 1985, and their jurisdictional correlatives, 28 U.S.C.A. §§ 1343, 2201, for a declaratory judgment that the use of the above waiver is an infringement of their constitutional rights and those of the class they claim to represent (all prisoners at the House of Detention). They move now for a preliminary injunction restraining the use of the waiver form. Although the request for relief is thus broadly stated, it appears from the papers and the statements of plaintiffs' counsel on argument that the more precise relief actually sought is that no prisoner should be asked to sign the waiver except in the presence and with the advice of counsel.

 It is alleged that the form of waiver has been submitted to "some of the plaintiffs and to other prisoners" for signature, that the forms are signed in the Warden's office, that "it is expected that all plaintiffs, and others in plaintiffs' class, will be given such forms to sign," that plaintiffs and some or all members of plaintiffs' class are "necessarily" targets of the investigation, and that indictments have been presented against prisoners in other jails under defendant McGrath's jurisdiction in Queens and Kings Counties for kidnapping and riot, respectively.

 It is claimed that the course of action pursued deprives plaintiffs of their right to counsel under the Sixth Amendment, and of due process and equal protection under the Fourteenth Amendment, because, in contrast to the case of prisoners, persons not in jail whom the District Attorney seeks to question can freely seek counsel and are generally interviewed with counsel present, and that it constitutes a "pattern, practice and policy" of the defendants to deprive plaintiffs of these rights.

 As the caption indicates, the action is brought against the District Attorney of New York County, the New York City Commissioner of Corrections, and the Warden of the Manhattan House of Detention for Men.

 Defendants contend that the court lacks jurisdiction because the complaint alleges no justiciable controversy, that it states no federal claim "which necessitates this Court to exercise its jurisdiction," and that the proceeding cannot be denominated a class action under Rule 23, F.R. Civ. P.

 Facts not in dispute establish that two of the plaintiffs, Deane and Collins, have been asked to sign the waiver. Deane did so; Collins refused and accordingly was not questioned. By order of Justice Postel of the New York Supreme Court (who had no knowledge of the circumstances under which the waiver was signed), Deane and two other inmates who had executed waivers were then taken to the District Attorney's office for questioning in connection with the investigation of the prison riots. At the District Attorney's office, but not before, these inmates were given Miranda warnings. Deane, when questioned, asked to consult his attorney and was sent back to Detention without further questioning. Neither plaintiffs Blyden nor King has been asked to sign a waiver or has been questioned, although Blyden ...


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