355 F.Supp. 1286 (S.D.Fla. 1973), Civ. 71-488, Pugh v. Rainwater

Docket Nº:Civ. 71-488
Citation:355 F.Supp. 1286
Party Name:Pugh v. Rainwater
Case Date:February 16, 1973
Court:United States District Courts, 11th Circuit, Southern District of Florida

Page 1286

355 F.Supp. 1286 (S.D.Fla. 1973)

Robert PUGH and Nathaniel Henderson, on their own behalf and on behalf of all others similarly situated et al., Plaintiffs,


James RAINWATER et al., Defendants.

Civ. No. 71-488.

United States District Court, S.D. Florida

Feb. 16, 1973

Bruce S. Rogow, Rene V. Murai, Miami, Fla., Phillip A. Hubbart, Public Defender of the Eleventh Judicial Circuit of Dade County, Miami, Fla., for plaintiffs.

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Jack R. Blumenfeld, Asst. State's Atty., Miami, Fla., for defendant Gerstein.

Alan H. Rothstein, City Atty., Larry J. Hirsch, Asst. City Atty., Miami, Fla., for defendant Bernard E. Garmire.

Stuart Simon, County Atty., Alan T. Dimond, Asst. County Atty., Miami, Fla., for defendant E. Wilson Purdy.

Robert L. Shevin, Atty. Gen., State of Florida, Barry Scott Richard, Asst. Atty. Gen., Miami, Fla., for defendants Sutton, Rainwater, Snowden, Adair, Berkman, and Ferguson.

Joseph Pardo, Miami, Fla., for defendant Sidney L. Segall.

Joseph A. Wanick, City Atty., Henry A. Edgar, Jr., Asst. City Atty., Miami Beach, Fla., for defendant Rocky Pomerance.

Aaron A. Foosaner, Miami, Fla., for defendant Morton L. Perry.

Ralph F. Miles, Hialeah, Fla., for defendant David Maynard.

August, Nimkoff & Gladstone, Pearson & Josefsberg, Jepeway, Gassen & Jepeway, Miami, Fla., for amicus curiae, Dade County Bar Assn.




This action brought almost two years ago by Florida prisoners held for trial without ever having received an impartial judicial determination of probable cause for their detention, now comes before the court for detailed findings on the extent to which present state practice falls short of meeting constitutional requirements. In an order of October 12, 1972, this court initially ruled that both the fourth amendment and the due process clause of the fourteenth amendment require a prompt hearing before a neutral and detached judicial officer for individuals held for trial solely upon an information filed by a single state attorney. Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971).

The court allowed defendants both before and after that ruling an opportunity voluntarily to bring Florida practice into compliance with basic constitutional standards. After this case was initiated on March 22, 1971, the court permitted the pre-trial schedule to be protracted in order that the 1971 Florida Legislature might have an opportunity to consider and act upon the issue. Likewise, the court's October 12 order postponed the question of implementation to provide all defendants 60 days within which to avail themselves of the opportunity to submit proposals concerning what sort of system for providing prompt preliminary hearings by an impartial judicial officer should be adopted in Dade County, Florida. The only proposal submitted in response to the court's mandate, (which came from defendant E. Wilson Purdy, Sheriff of Dade County) suggested the creation of a committing magistrate system. 1 In the absence of alternative proposals, the Purdy Plan, as it came to be known, was substantially adopted on January 25, 1972, after careful deliberation by the court. Pugh v. Rainwater, 336 F.Supp. 490 (S.D.Fla.1972).

Implementation of the Purdy Plan was delayed at the request of defendants for 90 days to permit adequate time for necessary administrative arrangements. State Attorney Gerstein's subsequent request that the court further delay compliance, pending completion of an appeal, was denied. The Fifth Circuit Court of Appeals granted the requested stay by order of March 31, 1972.

Despite the Fifth Circuit stay, Dade County judiciary officials moved voluntarily in the hiatus during appeal to establish their own plan for providing preliminary hearings. To effectuate this court's implementation order, a Committing Magistrate Rules Committee

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was formed by administrative order of Chief Judge Marshall C. Wiseheart of the Eleventh Judicial Circuit of Florida on March 13, 1972. After the stay had been issued, however, the work of the committee independently bore fruit as an administrative order of the Chief Judge created a committing magistrate system on April 15, 1972, which provided a limited right to a preliminary hearing. Although the requirements of the Dade County Magistrate System did not entirely conform with those of this court's order or those of the Purdy Plan, the differences are now moot in view of subsequent developments. 2 In retrospect, it is only unfortunate that in spite of our efforts to secure alternative proposals, the court did not have the opportunity to consider the plan actually implemented.

The signal development, however, came with the issuance of Amended Rules of Criminal Procedure by the Florida Supreme Court on December 6, 1972. The Amended Rules, which took effect February 1, 1973, provide many of the safeguards contained in this court's plan of January 25, 1972, including provision for preliminary hearings under a committing magistrate system. The State Supreme Court has once again demonstrated that it is not blind to the continued violation of 40-year old state statutes requiring an arresting officer to take the defendant before a committing magistrate without unnecessary delay. Fla.Stat. §§ 901.06, 901.23 (1971), F.S.A. (originally enacted as Law of June 12, 1939, ch. 19554, §§ 6, 23, [1939] Fla. Laws 1300); see e. g. State ex rel. Carty v. Purdy, 240 So.2d 480 (Fla.1970); Milton v. Cochran, 147 So.2d 137 (Fla.1962).

Upon hearing oral argument on October 18, 1972, in the appeal, the Fifth Circuit entered an order on October 24, vacating its stay of our January 25, 1972 order, directing this court to make specific findings on the constitutional deficiencies of present practice, and authorizing the implementation of the Purdy Plan. 3 In accordance with that mandate, a hearing was set for November 16, 1972, but delayed at the request of defendants until January 18, 1973. On the basis of the presentations of the parties and amicus curiae Dade County Bar Association at that hearing, the following findings of fact and conclusions of law are hereby entered.

The parties agreed and stipulated to the premise, in which the court concurs, that the mandated assessment of present practices must concern itself with state procedures after February 1, 1973, under the Florida Rules of Criminal Procedure as now amended. The parties further...

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