456 F.2d 863 (2nd Cir. 1972), 704, United States ex rel. Goodman v. Kehl

Docket Nº:704, 72-1266.
Citation:456 F.2d 863
Party Name:UNITED STATES ex rel. Edwin A. GOODMAN, Petitioner-Appellee, v. H. William KEHL, Sheriff of New York County, et al., Respondents-Appellants.
Case Date:March 14, 1972
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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456 F.2d 863 (2nd Cir. 1972)

UNITED STATES ex rel. Edwin A. GOODMAN, Petitioner-Appellee,


H. William KEHL, Sheriff of New York County, et al., Respondents-Appellants.

No. 704, 72-1266.

United States Court of Appeals, Second Circuit.

March 14, 1972

Argued on Motion for Stay March 9, 1972.

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Michael David Ratner, New York City (Rhonda Copelon Schoenbrod, Peter Weiss, Doris Peterson, New York City and Center for Constitutional Rights, of counsel), and Jeremiah S. Gutman, New York City (New York Civil Liberties Union, of counsel), for petitioner-appellee.

Michael R. Juviler, Asst. Dist. Atty. (Frank S. Hogan, Dist. Atty., New York County, of counsel), for respondents-appellants.

Asa D. Sokolow, New York City, for New York Lawyers' Committee for Civil Rights under Law, as amicus curiae.

Butler, Jablow & Geller, New York City, for Writers Guild of America East, Inc., as amicus curiae.

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Before FRIENDLY, Chief Judge, TIMBERS, Circuit Judge, and JAMESON, District Judge. [*]

FRIENDLY, Chief Judge:

This case illustrates the unfortunate clashes that can result from premature federal court interference with the orderly functioning of state judicial processes. It was to minimize these in the field of federal habeas corpus that Congress provided, 28 U.S.C. § 2254(b):

An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

Recitation of the facts will show that this salutary mandate was inadequately heeded here.

Petitioner is Edwin A. Goodman, who for some twenty-two months has been the general manager of radio station WBAI-FM in New York City. In this capacity, he was served with a subpoena duces tecum, issued by the Supreme Court of the State of New York for New York County, ordering him to produce in court:

All Tape Recordings, Program Logs and all Material Broadcast with relation to the Riots at the Manhattan House of Detention for Men (Tombs) during the period between October 2, 1970 to October 5, 1970. 1

These materials were sought by the District Attorney for New York County for use in the early trial of a number of state criminal indictments that grew out of the riots which occurred at the House of Detention during the period stated. It is the belief of the District Attorney's office that the tapes include telephone conversations from some of those named in the indictments, as well as other inmates of the House of Detention, to employees of WBAI, 2 embodying descriptions of the inmates' participation and other criminal plans and conduct. Among the tapes were recordings of telephone calls from inmates which were broadcast by WBAI and could have been taped by any listener at the time, although petitioner says that the material subpoenaed included much more than was broadcast. 3

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Petitioner and WBAI chose not to comply with the subpoena with respect to the tapes, 4 even of calls that had been broadcast; rather they sought to quash the subpoena, contending essentially that it violated rights as news-gatherers and news-reporters secured to them against the State by the First Amendment of the Federal Constitution by way of the Fourteenth, by various provisions of the New York Constitution, and by § 79-h of the N.Y.Civil Rights Law (McKinney's Consol.Laws, c. 6, 1971). The motion to quash was heard by Justice Culkin of the Supreme Court for New York County on February 28, 1972, and was denied in a brief opinion on March 2. An appeal was immediately filed. Justice Culkin refused to stay further action to enforce the subpoena and ordered contempt proceedings to be held the next day, March 3. On the morning of that day, petitioner applied to Justice McNally of the Supreme Court, Appellate Division, First Department, for a stay of the contempt proceedings pending decision of petitioner's appeal from the denial of the motion to quash and of a stay motion made by petitioner to the full panel of the Appellate Division. This application was also denied. Petitioner then appeared before Justice Culkin in the contempt proceedings and there stated-for himself and WBAI-that it was his "intention not to produce these materials in question, until such time as we have exhausted our legal resources." The court, upon petitioner's refusal to comply with its final direction to produce the tapes, ordered him to "do thirty days in the civil jail until such time as [he produces] the tapes," and fined the station $250. Justice Culkin denied applications for a stay of the sentences and for petitioner's release on bail or parole pending appeal of the contempt orders to the Appellate Division, and petitioner was remanded to the County Sheriff to commence serving his sentence.

The following morning, March 4, 1972, another application was made to Justice McNally of the Appellate Division, this time for a stay of petitioner's jail sentence or, alternatively, his release on bail or parole pending determination of the appeal. Justice McNally denied the application on the ground that the prior application for the same relief to Justice Culkin deprived him of jurisdiction to act as a single justice. He did, however, refer the application to a full panel of the Appellate Division for consideration on Tuesday, March 7, 1972, together with his previous denial of a stay of the contempt proceedings. Application for similar relief was also made on Saturday, March 4, to Chief Judge Fuld of the Court of Appeals of New York. He, too, refused, on the ground that neither he nor the Court of Appeals had jurisdiction to issue such a stay, apparently because of the absence of any final order from the Appellate Division with respect to the denial of the motion to quash the subpoena and the judgment and sentences of contempt.

Without awaiting the hearing in the Appellate Division on Tuesday, March 7, petitioner turned to federal District Judge Frankel, who for that week was the criminal motions judge for the District Court for the Southern District of New York, wherein petitioner was incarcerated. Judge Frankel, who was at his home in Larchmont, New York, agreed to hear an application for a writ of federal habeas corpus on Sunday morning at Larchmont Town Hall, although this would almost necessarily prevent the District Attorney from preparing a proper return, 28 U.S.C. § 2243, or researching authorities. Without detailing all that followed, suffice it to say that the District Attorney's office did receive notification and appeared at the Sunday morning hearing.

The relief requested was release of petitioner on his own recognizance

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pending final determination of his state court appeals concerning the validity of the subpoena. Judge Frankel granted this, subject to his power to correct or alter his order on short notice. At the hearing the District Attorney argued first that issuance of federal habeas corpus would be improper because petitioner had not fully exhausted his available state court remedies as required by 28 U.S.C. § 2254(b). After some initial confusion, emanating in no small part from the haste with which the hearing had been held, with respect to the precise nature of the applications and rulings in the state courts on Friday and Saturday, and the possibility of further state court action that might release petitioner pending determination of his state appeals, the district judge finally agreed that such relief might indeed result from action by the panel of the Appellate Division at the hearing scheduled for Tuesday, March 7. Nevertheless, he took the view that because of the absence of any available state court remedy from Sunday until the following Tuesday, petitioner had satisfied the exhaustion requirement. He considered that petitioner had raised substantial First Amendment questions with respect to the "so-called 'journalist's privilege,"' now under consideration by the Supreme Court, on quite different facts, in Caldwell v. United States, 434 F.2d 1081 (9 Cir. 1970), cert. granted, 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109 (1971); Branzburg v. Pound, 461 S.W.2d 345 (Ky.1970), cert. granted sub nom. Branzburg v. Hayes, 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109 (1971); and In re Pappas, Mass., 266 N.E.2d 297, cert. granted, 402 U.S. 942, 91 S.Ct. 1619, 29 L.Ed.2d 110 (1971), which might ultimately be appropriate for full-blown consideration in a subsequent federal habeas corpus proceeding and that, due to the shortness of petitioner's sentence, it was necessary to release him on bail instanter if "the full sweep of [the federal court's] jurisdiction" was to be preserved. In other words, he was fearful that, without action on his part, the sentence might run before its legality was determined. 5 He thought that to require petitioner either to surrender his First Amendment claims or remain in jail pending their determination would have a serious "chilling effect" on the assertion of such constitutional rights by petitioner and others. He also found that there were "substantial questions" whether petitioner had been accorded procedural due process in the state court contempt proceeding and on his initial application for bail because of the summary fashion in which he thought the state court may have acted. Finally, he was critical of the state court's failure to give any reasons for the denial of bail 6 and of what he considered the inability of the District Attorney's office to offer cogent reasons for keeping petitioner in jail pending determination of his state appeals. 7 He ordered petitioner released from custody immediately,

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declining even to stay his order...

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