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January 26, 1973

The PEOPLE OF the STATE OF NEW YORK, Respondent,
Wallace BAKER et al., Defendants-Petitioners

Brieant, District Judge.

The opinion of the court was delivered by: BRIEANT


BRIEANT, District Judge.

 By a hybrid proceeding, filed September 14, 1972, and appearing on this Court's civil docket, Relators-Petitioners-Plaintiffs, Wallace Baker, et al., four young Black men, who have submerged their individual identities and become known as the "Harlem Four", make a threefold attack on the jurisdiction and power of the District Attorney of New York County *fn1" to bring to trial an indictment against them filed in the Spring of 1964.

 Relators-Petitioners-Plaintiffs (hereinafter for convenience, "Petitioners") seek (a) a writ of habeas corpus discharging them from state custody pursuant to 28 U.S.C. § 2254, or alternatively, (b) removal of the state criminal charges against them for trial in this Court, pursuant to 28 U.S.C. § 1443(1) et seq., or alternatively, (c) a permanent injunction of the state prosecution, to be issued pursuant to 42 U.S.C. §§ 1981 and 1983 and 28 U.S.C. § 1343.

 Respondent, by order to show cause returnable November 29, 1972, seeks to remand the criminal charges to the Supreme Court of the State of New York pursuant to 28 U.S.C. § 1447(c).

 Petitioners are residents and citizens of the State of New York and of the United States. Jurisdiction exists with respect to all three aspects of the petitioners' claims.

 Petitioners and two others were charged with the felony-murder at 5:00 P.M. on April 29, 1964 of Mrs. Margit Sugar, and the stabbing of her husband Frank Sugar, incident to a robbery of their second-hand clothing store, the "Eve and Pete", located at 1-3 West 125th Street, in the area of New York City known as Harlem.

 Petitioners and the two others, Hamm and Rice, were convicted after a joint jury trial, on July 17, 1965, and sentenced to life imprisonment on the murder charge, and given lesser sentences on attempted murder and attempted robbery. After their convictions were affirmed by the Appellate Division, First Department (28 A.D.2d 24, 281 N.Y.S.2d 161, decided June 22, 1967) the Bruton rule was developed by the Supreme Court of the United States (Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476, decided May 20, 1968), and made retroactive (Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100, decided June 10, 1968).

 On November 27, 1968 (People v. Baker, 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232), the New York Court of Appeals reversed the convictions because of Bruton, and also for other reasons unrelated to guilt or innocence. Confessions of Hamm and Rice, implicating these defendants had been received in evidence at the trial. Since that time, Hamm pleaded guilty to reduced charges based on the same facts, and Rice was tried separately and convicted. Each of these is now appealing his conviction in state courts.

 These four petitioners were retried in 1971 before Mr. Justice Backer and a jury. The jury deadlocked and a mistrial was declared.

 They were tried again, commencing November 8, 1971, and concluding January 27, 1972, before Mr. Justice Martinis of the New York Supreme Court, and a jury. This jury also failed to agree on a verdict and because of deadlock was discharged by the Court, and a mistrial declared.

 Petitioners, after having been imprisoned for approximately eight years, urge that they are presently attempting, successfully, to restructure their lives and become useful citizens. If so, this is not relevant to the issues presently before this Court. *fn2"

 We are told that the last jury was divided seven to five for acquittal. The total vote of the various jurors at the various trials, however, cannot be considered relevant to the issues before us, as a deadlock produces a mistrial whether six to six, or eleven to one.

 On February 14, 1972, petitioners moved in the New York Supreme Court to dismiss the indictment on various grounds, including the claim that their constitutional rights would be violated by a further (fourth) trial. This motion was denied after an evidentiary hearing by an opinion and decision made June 27, 1972 by Mr. Justice Martinis.

 No procedure exists in New York for intermediate appellate review of such a decision, although it may be reviewed in an appeal from a final judgment of conviction after retrial before another jury. Because petitioners are presently free on bail, they lack standing to maintain a state habeas corpus proceeding. New York does not recognize bail status pending trial as constructive detention in satisfaction of that jurisdictional requirement for habeas corpus. CPLR § 7002(a); People, etc., ex rel. Modica v. Hoy, Sheriff of the County of Westchester, 51 Misc.2d 579, 273 N.Y.S.2d 634 (Hoyt, J., 1966).

 Accordingly, petitioners have exhausted their state remedies, and may not test further, except in this Court, their Constitutional claim that they may not be retried.

 Mr. and Mrs. Sugar, victims of this brutal crime, were White, although they may hardly be characterized as exploiters in any racist tradition; they were poor Hungarian refugees, who had fled to the United States in 1956, operating a marginal second-hand clothes store. *fn3"

 Viewing the evidence most favorably to the prosecutor, as we must, defendants agreed in advance to enter the store in a group, to douse (i.e. kill, see 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232) Mr. and Mrs. Sugar with knives, and to make off with clothing in their own shopping bags, which they had brought for the purpose.

 In order to bring themselves within the provisions of 42 U.S.C. § 1981, petitioners make the following allegation:

(para. 11) "Upon information and belief, the sole and exclusive reason why defendant Hogan is insisting that he will prosecute relators for the fourth time is that they are Black men who are accused of murdering a White woman, a stereotype etched deeply into the psyche of White America."

 Assuming that this brutal crime conforms to any stereotype, which may seem doubtful, petitioners attack the exercise by the District Attorney of New York County of prosecutorial discretion to try the defendants for a fourth time (a third time, if the first conviction be excluded). In essence, they ask this Court to review the prosecutor's exercise of his discretion, or alternatively, to hold either as a matter of law, or on the facts, the abuse of discretion by the prosecutor in bringing the Harlem Four to trial for a fourth (actually, third) time is so egregious as to constitute a denial of due process, or double jeopardy in violation of the Fifth Amendment to the Constitution. *fn4"

 This Court has reviewed the entire transcript of the last trial before Mr. Justice Martinis. *fn5"



 Respondent's motion to remand the criminal case may be dealt with first. If petitioners could substantiate with evidence, their allegation in paragraph 11 of the petition, previously quoted, and could establish a scintilla of evidence that any determination of District Attorney Hogan to prosecute petitioners for a fourth time is based on racial discrimination, the Court might yet find lacking the essential requirement for a removal pursuant to 28 U.S.C. § 1443(1). That requirement, based on the so-called Strauder-Rives doctrine (Strauder v. State of West Virginia, 100 U.S. 303, 25 L. Ed. 664; State of Virginia v. Rives, 100 U.S. 313, 25 L. Ed. 667), as stated in Chestnut v. People of the State of New York, 370 F.2d 1 (2d Cir. 1966), cert. den. 386 U.S. 1009, 87 S. Ct. 1355, 18 L. Ed. 2d 439, is that the denial of civil rights must also arise out of a "formal expression of state law". That is of course not present here. Georgia v. Rachel, 384 U.S. 780, 803, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966). See also People, &c v. Davis, 411 F.2d 750 (2d Cir. 1969); Varney v. Georgia, 446 F.2d 1368 (5th Cir. 1971).

 However, petitioners produced no evidence to lead to such an inference of official wrongdoing by this distinguished elected prosecutor, who has served the public faithfully for almost a generation. *fn6"

 At the hearing held before me on November 29, 1972, petitioners' attorney expressly disclaimed possession of any relevant evidence tending to prove this serious charge made against Mr. Hogan. At p. 14 of the transcript of ...

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