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Wallace v. Kern

decided: June 30, 1975.

DONALD WALLACE, ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED WHO HAVE MATTERS PENDING IN THE CRIMINAL TERM OF THE SUPREME COURT OF THE STATE OF NEW YORK, KINGS COUNTY, PLAINTIFFS-APPELLEES,
v.
MICHAEL KERN, OLIVER D. WILLIAMS, JACOB J. SCHWARTZWALD, INDIVIDUALLY AND AS JUSTICES OF THE SUPREME COURT OF THE STATE OF NEW YORK, KINGS COUNTY AND VINCENT D. DAMIANI, ETC., ET AL., DEFENDANTS-APPELLANTS. THE UNITED STATES OF AMERICA EX. REL. MICHAEL A. MCLAUGHLIN, ET AL., PLAINTIFFS-APPELLEES, V. THE PEOPLE OF THE STATE OF NEW YORK, THE PEOPLE OF THE CITY OF NEW YORK, THE CHIEF PRESIDING JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS. MICHAEL A. MCLAUGHLIN, ET AL., PLAINTIFFS-APPELLEES, V. THE PEOPLE OF THE STATE OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS



Appeal from an order of the United States District Court for the Eastern District of New York, Hon. Orrin G. Judd, J., mandating the granting on demand of evidentiary hearings on the issue of bail to pre-trial detainees. Reversed insofar as appealed from.

Mulligan and Gurfein, Circuit Judges and Pollack,*fn* District Judge.

Author: Mulligan

MULLIGAN, Circuit Judge:

This is an appeal from a final judgment entered March 26, 1975 in the United States District Court for the Eastern District of New York, Hon. Orrin G. Judd, Judge, mandating a variety of new bail procedures in the Supreme and Criminal Courts of Kings County, New York. The judgment was entered in accordance with a memorandum decision of Judge Judd dated February 14, 1975 (as yet unreported). We reverse.

I.

This action was commenced in July 1972 as a class action pro se by a group of inmates awaiting trial or sentencing in the Brooklyn House of Detention for Men. As twice amended, the complaint, brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-2202, stated eight claims for relief.*fn1 The named defendants include the Justices of the Supreme Court of Kings County, as well as local administrative officials and court personnel. In gist, the plaintiffs alleged (a) that the burgeoning criminal caseload in the Kings County Supreme Court has caused excessive pre-trial delays and the consequent confinement of unconvicted detainees for prolonged periods of time in violation of their constitutional rights; (b) that the incarceration of indigent detainees unable to make bail violates the equal protection and due process clauses of the Fourteenth Amendment; and (c) that various practices have the effect of intimidating and coercing detainees into pleading guilty rather than stand trial.

This case has been on appeal in this court twice before. Wallace v. Kern, 481 F.2d 621 (1973) (per curiam), cert. denied, 414 U.S. 1135, 38 L. Ed. 2d 761, 94 S. Ct. 879 (1974) (Wallace I); Wallace v. Kern, 499 F.2d 1345 (1974), cert. denied, 420 U.S. 947, 95 S. Ct. 1329, 43 L. Ed. 2d 425 (1975) (Wallace II). In Wallace I, Judge Judd had granted an application for a preliminary injunction against the Legal Aid Society's acceptance of any additional felony cases in the Kings County Supreme Court if the average caseload of its attorneys exceeded 40. The district court also had ordered the Clerk of the Criminal Term of the Kings County Supreme Court to place on the calendar all pro se motions filed by inmates of the Brooklyn House of Detention. This court reversed on the grounds that jurisdiction under section 1983 was absent since the Society was not acting under color of state law and that the court lacked power to intervene in the internal practices of the state courts. In Wallace II, Judge Judd had granted an application for a preliminary injunction ordering that each detainee held for trial for more than six months be allowed to demand a trial and be released on his own recognizance if not brought to trial within 45 days of his demand. This court reversed on the ground that questions concerning the right to a speedy trial are properly to be determined on a case-by-case basis rather than by a broad and sweeping order.

In this final stage of the case, the plaintiffs claimed that procedures in the state courts regarding bail are arbitrary and unreasonable. As a remedy, although not specified in the complaint, the plaintiffs sought improvements in the physical facilities of the courts so that attorneys might adequately consult with clients unable to post bail; an evidentiary hearing on the question of bail within 72 hours after arraignment; and a written statement by the judge of his reasons for fixing bail at any point when a bail decision is made. The plaintiffs also sought a declaration that current practices have a coercive effect on a detainee in regard to his decision whether to plead guilty or stand trial. After hearing numerous witnesses,*fn2 Judge Judd made findings of fact and conclusions of law on these issues.

A. Bail Practices in Kings County

Despite much improvement since the commencement of this action,*fn3 Judge Judd found that criminal justice in Kings County is beset by lengthy delays which have an effect upon bail procedures. These begin in the Criminal Court when the defendant is arraigned after his arrest and bail is first set. There is provision for a preliminary hearing within 72 hours but this is usually adjourned. If a hearing is held, bail may be reduced or the defendant may be released on his own recognizance, but, according to the findings below, this also rarely occurs. A defendant may remain incarcerated for 45 days before he is indicted on a felony charge and his case proceeds to the Supreme Court. See N.Y. Crim. Proc. Law § 190.80. At the arraignment in Supreme Court, a de novo bail proceeding is held. The district court found, however, that those not released before this point generally remain incarcerated.

Several weeks after arraignment, a defendant's case will be called in the conference part for the purpose of disposing of the case by plea, if possible. At this time, the defendant may apply for bail review. A few weeks thereafter, the case will be assigned to a trial part. Further bail review applications may be filed in the motion part and considered in the trial part. If the defendant still is unable to meet bail, he may apply in Part 10, a special bail review section of the Supreme Court. Finally, a defendant may apply in the Supreme Court for habeas corpus, with review in the Appellate Division.*fn4

Judge Judd found that certain sources of information relative to the bail decision are of great significance, namely, the New York State Criminal Investigation Information Service (NYSIIS) report and an ROR (Release on Own Recognizance) sheet. The NYSIIS report contains a listing of all of the defendant's arrests, but is usually incomplete with respect to the dispositions of those cases. The ROR sheet contains information on a defendant's background and community ties. While the Pre-Trial Service Agency, an organization funded by the federal and state governments which provides information to the court to assist it in making decisions on bail, endeavors to verify the assertions in the ROR sheet, Judge Judd found that in most cases it is unable to do so prior to the initial bail hearing. Bail proceedings in Criminal Court are very brief and the determinations made therein are often based upon incomplete or inadequate information. The court found that consideration is often given to open charges in the NYSIIS report but denied as to unverified favorable information in the ROR sheet.

Despite the fact that the factors underlying the bail decision of the Criminal Court judge are not known to him,*fn5 the arraigning Justice in the Supreme Court, Judge Judd found, seldom changes that decision, giving "substantial weight" to the initial determination of the Criminal Court judge. In the conference part, the defendant sees a Justice only if he agrees to plead guilty. While a majority of applicants in Part 10 are granted bail reductions, Judge ...


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