Melville v. Morgenthau

• Decision Date: 29 December 1969
• Docket Number: No. 69 Civ. 5527.,69 Civ. 5527.
• Citation: 307 F. Supp. 738
• Parties: Samuel Joseph MELVILLE, John David Hughey, III and Jane Lauren Alpert, Plaintiffs, v. Robert M. MORGENTHAU, both individually and as United States Attorney for the Southern District of New York; John H. Doyle, III, both individually and as Assistant Chief, Criminal Division, United States Attorney's Office for the Southern District of New York; John Doe, and Richard Roe (such names being fictitious), and others, both individually and as Foreman and Jurors, respectively of the Grand Jury for the Southern District of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

307 F. Supp. 738

Samuel Joseph MELVILLE, John David Hughey, III and Jane Lauren Alpert, Plaintiffs, v. Robert M. MORGENTHAU, both individually and as United States Attorney for the Southern District of New York; John H. Doyle, III, both individually and as Assistant Chief, Criminal Division, United States Attorney's Office for the Southern District of New York; John Doe, and Richard Roe (such names being fictitious), and others, both individually and as Foreman and Jurors, respectively of the Grand Jury for the Southern District of New York, Defendants.

No. 69 Civ. 5527.

United States District Court S. D. New York.

December 29, 1969.

Lefcourt, Garfinkle, Crain, Cohn, Sandler & Lefcourt, New York City, for plaintiffs Melville and Hughey, William E. Crain and Frederick H. Cohn, New York City, of counsel.

Sanford M. Katz, New York City, for plaintiff Alpert.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, for defendants, John H. Doyle, III, New York City, of counsel.

OPINION

POLLACK, District Judge.

This is a civil action brought for mandamus and injunctive relief to redress alleged denials of rights, privileges and immunities guaranteed by the United States Constitution. The plaintiffs in this case are defendants presently under indictment in the Southern District of New York charged with conspiring to destroy federal property. The defendants herein are the United States Attorney for the Southern District of New York and his Assistant Chief of the Criminal Division.

The plaintiffs move for a preliminary and permanent injunction restraining the further prosecution of the plaintiffs herein under the pending criminal indictment against them, 69 CR. 811, and restraining the defendants from seeking any new indictment before another grand jury based either upon the same acts alleged in the indictment or any other acts allegedly committed as part of the alleged conspiracy to destroy governmental and other buildings in the County of New York by bombing. Plaintiffs also seek an order requiring an evidentiary hearing to determine whether the grand jury that returned the indictment in 69 CR. 811 was unbiased and otherwise legally constituted; and for an order requiring the conduct of a voir dire examination by the Court of any grand jury which might return a subsequent or superseding indictment with regard to the alleged conspiracy.

The plaintiffs were arrested on November 12, and 13, 1969 and were duly arraigned and bail was duly set. It is claimed that the arrest and all subsequent proceedings received widespread coverage in the local and national press and the broadcast media. Annexed to the complaint as exhibits A through Z are alleged examples of the publicity. These examples were supplemented at the time of the argument of the motion with additional news and magazine items dated both before and since the indictment. It is asserted that the publicity has been so widespread that no person of reasonable awareness and intelligence could possibly have avoided becoming aware of it including the grand jurors who returned the indictment and any other persons who might be called upon to serve on a grand jury in the Southern District of New York.

The complaint asserts that the publicity has, to a large extent, embodied alleged statements to the press of the United States Attorney's Office and that these statements have attempted to connect these plaintiffs to numerous bombings which have taken place in the past several months against various buildings in New York City including some that are federally owned. The complaint charges that the publicity must inevitably have the effect of giving rise to a substantial bias and prejudice against the plaintiffs in the minds of those who have read or heard about it, including the jurors on the grand jury for the Southern District of New York and any other persons who might be called on to serve on such grand jury.

Plaintiffs say that the publicity irreparably prejudiced the grand jury that returned the present indictment as well as any grand jury that might hereafter be presented with a request to hand up a superseding indictment on similar charges. It is claimed that the indictment was returned on Monday, November 17th (actually, it was Tuesday, November 18th) in ample time for the grand jurors to have read and heard the pre-indictment publicity beginning immediately after the plaintiffs' arrest. The plaintiffs claim that they have a guaranteed constitutional right to a fair and impartial grand jury. They claim that before a superseding indictment is filed they are entitled to ascertain whether the grand jury is unbiased or whether it has been irrevocably prejudiced by the alleged improper and unprofessional pre-indictment publicity which they attribute to the prosecutors.

The news reports which are annexed to the complaint as examples of the questioned publicity, announced the fact and circumstances of the arrest for four suspects in an alleged attempt to bomb Army equipment; the identity of the agency, the FBI, investigating the bombings which had been occurring and that that agency had effected the arrest; the evidence seized; and the charge of...