Megantz v. Ash

• Decision Date: 21 May 1969
• Docket Number: No. 7344.,7344.
• Citation: 412 F.2d 804
• Parties: Linda MEGANTZ et al., Petitioners, Appellants, v. Herbert W. ASH, High Sheriff of Grafton County, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

412 F.2d 804 (1969)

Linda MEGANTZ et al., Petitioners, Appellants, v. Herbert W. ASH, High Sheriff of Grafton County, Respondent, Appellee.

No. 7344.

United States Court of Appeals First Circuit.

May 21, 1969.

Ridler W. Page, William A. Baker, Lebanon, N. H., Allan R. Rosenberg and Putnam, Bell & Russell, Boston, Mass., for appellants.

John P. Chandler, Laconia, N. H., for Thomas G. Goulet, appellant.

Walter L. Murphy, Plymouth, N. H., for Michael W. Roberts, appellant.

William F. Batchelder, Plymouth, N. H., for Vladimir Svesko, appellant.

David H. Souter, W. Michael Dunn and Donald A. Ingram, Concord, N. H., for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

On Tuesday, May 6, 1969, a group of Dartmouth College students and contemporaries of both sexes, hereinafter the occupants, invaded Parkhurst Hall, the College administration building, in Hanover, New Hampshire, ejected the personnel from their private offices, and barricaded themselves inside. This action was in protest against the College's position with respect to R.O.T.C.¹ The occupants were demanding immediate cancellation of contracts. "R.O.T.C. must go." When, after some period of time, requests to leave were ignored, the College applied for a court order and obtained from the state Superior Court a temporary injunction. The injunction was in seven paragraphs, only one of which is presently material.

"* * * any unauthorized persons are enjoined and restrained from * * * 2. Unauthorized occupation of any office or other private area in any building of Dartmouth College."

The occupants were in obvious violation. Copies were posted by the Sheriff during the early evening on the main doors of the Hall; a copy was pushed under the front door, promptly returned, pushed back again and not returned. The Sheriff, from outside the building, announced the terms of the injunction with a bullhorn eight times. The only consequence of his outdoing Joshua, however, was a closing of the windows.

At 11:00 P.M. the Sheriff arranged for a contingent of New Hampshire and Vermont state police. A large number arrived about 3:00 A.M. Wednesday morning. His request that the occupants leave of their own accord again evoking no response, the Sheriff ordered the front door to be broken in. This was accomplished. The police were greeted by shouting, but no physical resistance. The occupants were led, or propelled, one at a time, through a corridor of policemen to a waiting bus, booked, photographed and jailed.

Some fifty-six individuals were arrested. During the next twelve hours all were released on bail. Prior to release they were notified that they would be tried for criminal contempt in the Superior Court on Friday, May 9 at 10:00 o'clock. At 9:00 P.M. Wednesday, thirty of the defendants retained a local firm of two lawyers, hereinafter counsel. Thereafter, with apparently little time off for sleep, counsel sought to prepare themselves for trial. During this interval they were retained by eighteen other defendants.² At some time on Thursday counsel orally requested a continuance of the trial to allow more time to prepare. The court indicated that it would be unreceptive, but suggested a written motion and a formal hearing on Friday morning. This hearing was held. The court granted a continuance to May 19 for three defendants who had retained counsel at 12:30 A.M. that morning, but denied continuances to 45 others, hereinafter petitioners. Continuances were also granted to certain further defendants, who had obtained representation that morning by another attorney. It is asserted that May 19 was selected because the court had previous commitments for the week of May 12. The court made no statement as to why it was not granting a similar continuance to petitioners. Trial proceeded, petitioners offering no evidence. They were convicted, and sentenced forthwith to 30 days in jail.

Later that same day counsel filed a petition for a writ of mandamus, the appropriate state form of review, with the Supreme Court of New Hampshire. This was heard by the Chief Justice on Saturday morning and denied. Saturday afternoon counsel filed the present petition for a writ of habeas corpus in the District Court of New Hampshire. This was heard, ex parte, on Sunday morning, and denied. On Sunday afternoon a member of this court, after an ex parte hearing, denied without prejudice an application for bail pending appeal and assigned the application for hearing before the full court on Tuesday. This hearing was held, and the application again denied without prejudice. The court placed the appeal in order for hearing on Friday, May 16. At the conclusion of that hearing the court ordered five of the petitioners released on bail, denied a new application for bail by the others and took the case under advisement.

We start with the unquestioned proposition that the Federal courts do not sit in supervisory review of the state courts. Avery v. Alabama, 1940, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. The burden upon petitioners is the heavy one of showing an invasion of constitutional rights. In this respect the principal allegation was the lack of effective assistance of counsel. Complaints with regard to this fall generally in two areas; objective and subjective. As to the latter, regarding the overall performance and capability of counsel, realizing the inevitability of human imperfection and the omniscience of hindsight, courts require the subjective misfeasance or nonfeasance of counsel to be extreme before such will be recognized as ground for objection. Bell v. Alabama, 5 Cir., 1966, 367 F.2d 243, 247, cert. denied 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788; United States ex rel. Maselli v. Reincke, 2 Cir., 1967, 383 F.2d 129, 132; Johnson v. United States, 10 Cir., 1967, 380 F.2d 810; Cardarella v. United States, 8 Cir., 1967, 375 F.2d 222, cert. denied 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176; Bruce v. United States, 1967, 126 U.S.App.D.C. 336, 379 F.2d 113. Although counsel on this appeal have been both modest and diligent in pointing out what might be considered in this connection and we approach the issue from the standpoint of protecting the defendants, not counsel, we can see nothing that would justify granting the writ on that ground.

The burden may be less severe when the question is the objective one; the ineffectiveness of counsel due to insufficient time to prepare, focused mainly upon the correctness of the trial judge's denial of a motion for continuance. Even here, however, a strict standard of review is applied and reversal is ordered only when the time is demonstrably inadequate. Thus in Avery v. Alabama, supra, the Court refused to interfere where the defendant was tried for a capital offense three days after the appointment of counsel. The issue is one of fact; and wide discretion is afforded the trial judge's decision. Nilva v. United States, 1957, 352 U.S. 385, 395, 77 S.Ct. 431, 1 L.Ed.2d 415. And as the Supreme Court stated in Ungar v. Sarafite, 1964, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921:

"The matter of continuance is traditionally within the discretion of the trial judge * * *. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case * *."

While we agree with the Fourth Circuit conclusion, see Fields v. Peyton, 1967, 375 F.2d 624 and cases discussed therein, that a point may come where the preparation time is so short under the circumstances as to require no showing of actual prejudice by a defendant who asserts no evidence, fifteen minutes can be long enough to learn that a defendant has no defense. Cf. United States v. Wight, 2 Cir., 1949, 176 F.2d 376, cert. denied 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586. As to forty of the petitioners, counsel have now had a week to profer any meritorious defenses they may not have had time enough to ascertain between Wednesday evening and Friday morning.³ Any presumption of prejudice they could claim to have had can no longer be existent.⁴ Cf. Baldwin v. United States, 3 Cir., 1958, 260 F.2d 117, cert. denied 360 U.S. 938, 79 S.Ct. 1463, 3 L.Ed.2d 1550.

It was contended in the original petitions, in substance, that if counsel had had more time to prepare they would have been able to present a better evidentiary defense to the charge of contempt. Strictly, this is an exaggeration. In view of the immediacy of their filing of the habeas corpus petition, all that petitioners could truly allege was if they had more time to prepare they might have developed their defense. At the appeal level it was further urged that if counsel had had more time to prepare they might have raised some procedural defenses, to wit, the failure of the state to have given them notice of the injunction and the failure to make proper service of the capias informing them of the alleged violation of the injunction and of the issues to be tried.

At the earlier bail hearings we suggested that if the defendants wished to submit affidavits or other indication of what evidence they had been deprived of an opportunity to present, we would receive it. At the hearing on Friday, May 16 affidavits were submitted.⁵ The affidavits fell into two groups. In one set certain defendants stated that they had never received a copy of the injunction; that they did not hear it being read aloud by the Sheriff or anyone else on May 6 or 7; that they were not served with a copy of the capias and had not seen one. We do not consider either of these procedural matters as indicating actual prejudice. As to the notice of injunction point, we note a conspicuous absence from the affidavits of statements that the affiants did not know on May 6 and 7 that an injunction had been issued or that, whatever its precise terms, the injunction demanded the evacuation of the Hall.⁶ Nor do...