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March 7, 1974.

DONALD WALLACE, et al., Plaintiffs,
MICHAEL KERN, et al., Defendants.

The opinion of the court was delivered by: JUDD

HON. ORRIN G. JUDD, District Judge



 Plaintiffs in this class action have moved for a preliminary injunction to assure their right to a speedy trial or to release from custody.


 The action is brought on behalf of all felony defendants confined at Brooklyn House of Detention for Men (BHD) pending indictment, trial or sentence. Among numerous rights which the action seeks to enforce is the constitutional right to a speedy trial for persons held in custody because of their inability to provide money bail. The second amended complaint asks for the dismissal of charges or the release on their own recognizance of all criminal defendants who have not been tried within six months after their commitment.

 The problem of trial delays in Kings County Supreme Court is one of long standing. Trial delays in the metropolitan counties were described in 1971 as "notorious" and "chronic," in an opinion by the Second Circuit Court of Appeals. United States ex rel. Frizer v. McMann, 437 F.2d 1312, 1315. The same court noted in 1973 that serious delays continued.United States ex rel. Thorne v. Warden, Brooklyn House of Detention for Men, 479 F.2d 297, May 16, 1973. The New York Legislature early in 1972 (L. 1972, c. 496, § 1) enacted a finding that "there is an emergency of grave dimensions in the processing of felony charge cases in the criminal courts in the metropolitan counties of the state." The legislature appropriated $6,700,000 to be used, with federal and local funds, for an emergency felony case processing program.

 In December 1972, there were 644 defendants who had been confined in BHD for more than six months. During the first three months of 1973, the Legal Aid Society obtained twelve acquittals of defendants who had been in jail for periods ranging from twelve to fourteen months. Four BHD inmates who testified in this court in April 1973, had been confined from thirteen to seventeen months awaiting trial.

 On July 9, 1973, there were 707 persons named in indictments in Kings County Supreme Court who had been in custody for more than six months, and 210 of these had been in custody for more than a year. This represented almost 44 percent of the total 1,614 defendants in custody. Some of these were awaiting sentence, but the vast majority were awaiting trial.

 A witness in Valvano v. Malcolm, 70-C-1390, testified in January 1974 that he had just been acquitted on a murder charge after being in jail in BHD for fourteen months. An affidavit for plaintiffs listed details concerning six inmates who had been held from eight to twenty months awaiting trial, in spite of an aggregate of fourteen speedy trial motions.

 Trial delays are reflected in overcrowding of both BHD and QHD. Although the rated capacity of BHD is 840, it housed an average of 1,391 during 1973, or over 160 percent of capacity. Because of the overcrowding at BHD, there were 200 pretrial detainees on Kings County indictments housed in Queens House of Detention for Men (QHD), which was at 131 percent of capacity on July 9, 1973. Although both institutions were designed to hold one inmate in each cell, there was still double occupancy in almost all cells in QHD in January 1974 when the Warden testified before this court in the Valvano case. The occupancy of BHD had been reduced to 995 or about 125 percent of capacity by January 1974, but there was still double occupancy of a large proportion of the cells. The cells are approximately five feet by eight feet in dimensions.

 The New York City Board of Correction in its amicus curiae brief cites a number of cases involving detainees, which serve to highlight the impact of lengthy pretrial confinement.

 After being held in jail for twenty-two months, "W" pleaded guilty on June 13, 1973 to a robbery charge. He has been released on $250 bail, with the expectation that he would be placed on probation. His case had been marked ready and passed fifty-five times. While in jail, he was severely beaten by other inmates, and sustained a shoulder injury, from which he still suffers.

 "M" was in jail for nineteen months before pleading guilty on June 14, 1973 to a robbery charge, at a time when he claimed to have lost contact with witnesses who might have aided him.

 "Harold S." was in jail for twenty-one months and had attempted suicide during a period of despondency, before he finally pleaded guilty on June 29, 1973 to manslaughter.

 "Herbert S." was in jail for sixteen months before pleading guilty on May 9, 1973 to third degree robbery. Only after his plea was he transferred to Rikers Island, where he received hospital treatment for swollen glands from which he had suffered for over six months.

 "D" was in jail for eighteen months before obtaining a Wade hearing, which was followed by a guilty plea to a reduced robbery charge on June 19, 1973. In spite of his plea, he still maintains his innocence.

 State Court Remedies

 Efforts at relief in the state courts have been largely unsuccessful. Under the leadership of Chief Judge Fuld, the Administrative Board of the Judicial Conference on May 3, 1971 adopted a speedy trial rule, which would have required release after ninety days in custody without a trial, except in homicide cases. 22 NYCRR 29.1-29.7. This rule was not to become effective until May 1, 1972. Before then the legislature enacted its own plan, requiring only that the people be ready for trial within ninety days, the legislature stating that its enactment "shall be deemed to supersede any rule of the Administrative Board of the Judicial Conference." CPL § 30.30, as amended by L. 1972, Chap. 184, effective April 28, 1972.

 Following the enactment of Section 30.30, the Legal Aid Society attempted to secure the release of detainees in custody more than six months. William Gallagher, Director of Court Operations for the Legal Aid Society, testified that in the summer of 1972 the Society brought 400 speedy trial motions before the Appellate Division, Second Department, that the Acting presiding Justice directed a conference with the District Attorney concerning bail, that a Supreme Court Justice released 202 defendants on their own recognizance or low cash bail, but denied the other motions, and that no trial dates were set for the other defendants.

 After being unsuccessful in the Appellate Division, the Legal Aid Society took four test cases to the New York Court of Appeals, which on February 16, 1973 directed that the cases be granted a trial preference to assure the commencement of trial within three months thereafter. People ex rel. Franklin v. Warden, 31 N.Y. 2d 498, 341 N.Y.S. 2d ...

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