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United States v. McMann

decided: January 5, 1971.

UNITED STATES EX REL. CALVIN FRIZER, RELATOR-APPELLANT,
v.
DANIEL MCMANN, WARDEN OF AUBURN PRISON, AUBURN, NEW YORK, RESPONDENT-APPELLEE



Lumbard, Chief Judge, Waterman, Senior Circuit Judge,*fn* and Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Friendly, Circuit Judge, (concurring), with whom Moore and Hays, Circuit Judges, concur.

Author: Lumbard

LUMBARD, Chief Judge:

Calvin Frizer's appeal from the Northern District's denial of his habeas corpus petition, based on the elapse of one year from his arrest until his jury trial in Nassau County in which he was convicted of burglary in the second degree and attempted grand larceny in the second degree, was thought to raise important questions regarding due process and the Sixth Amendment right to speedy trial. Accordingly, on April 1, 1970, we granted Frizer's petition for rehearing in banc and requested numerous public authorities and interested organizations to file amicus briefs.*fn1

The Attorney General's brief, filed May 15, 1970, advised us for the first time that, after Frizer's arrest on September 30, 1966 on the Nassau County charges, he was indicted in Queens County on October 7, 1966 and on October 20, 1966 he pleaded guilty to attempted grand larceny in the second degree and thereafter, on February 3, 1967, he was sentenced to Sing Sing for a term of one year and three months to two years. Upon our request for further information, Frizer's counsel, while agreeing to the facts regarding the intervening Queens conviction, asserted that Frizer was absent from Nassau County only a total of ten days because of the Queens County proceedings. The district court had not been advised about the Queens case; nor, according to Frizer's counsel, was it advised about all the attempts of Frizer's counsel to have the case tried.

In any event, it is now apparent that Frizer's case was not the case of a defendant held in jail in default of bail for one year before his case was reached for trial.

We agree with the result reached by a panel of this court, reported at 437 F.2d 1309, and affirm the order of the district court.

Meanwhile the number of habeas corpus petitions filed by prisoners in New York state prisons, many of which allege violation of constitutional rights by reason of long periods of time elapsing between arrest or charge and trial in the courts of New York, has assumed alarming proportions.

The Judicial Conference of the State of New York informs us by its brief amicus that, as of April 1, 1970, there were 2,899 persons accused of felony in New York State who had been held in jail three months or more awaiting disposition of the charges against them. Almost 90% of defendants held in jail were facing charges in the five large metropolitan counties and two suburban counties, namely:

New York County 841

Kings County 790

Bronx County 533

Queens County 260

Erie County 58

Nassau County 29

Westchester County 22

The many amicus briefs filed at our request*fn2 advise us of the reasons for the delays in trying criminal cases. It is all too apparent that during the past few years the simultaneous development of numerous conditions has greatly increased the total elapse of time required to process felony charges to final disposition in the trial court by plea of guilty, conviction after trial, acquittal or dismissal.

The Judicial Conference brief summarizes 18 principal causes of delay, one or more of which delay the disposition ...


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