Oquendo v. Ortiz
| Decision Date | 01 October 1973 |
| Docket Number | Civ. No. 772-73. |
| Parties | Victor Pagan OQUENDO, Plaintiff, v. Hon. Eugenio Ramos ORTIZ, Superior Court Judge in the Superior Court of Puerto Rico, San Juan District, Criminal Section, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Victor Gutierrez Fernandez and Santos P. Amadeo and Victor Miguel Casals, Santurce, P. R., for plaintiff.
Peter Ortiz, Deputy Sol. Gen., Commonwealth Dept. of Justice, San Juan, P. R., for defendant.
By way of amended complaint filed September 11, 1973, wherein the jurisdiction of this Court is properly alleged, Victor Pagán Oquendo seeks injunctive and other appropriate relief under the provisions of Title 28, United States Code, Sections 1343, 2201 and 2202, and Title 42, United States Code, Section 1983, on grounds that his rights as guaranteed by the Fifth, Sixth, Ninth and Fourteenth Amendments of the Constitution of the United States, will be jeopardized if he must stand trial, as scheduled, for first degree murder and violation of the weapons law, Titles 33 and 25, Laws of Puerto Rico Annotated, Sections 631 and 418, respectively, in the Superior Court of San Juan, Puerto Rico, Hato Rey Section, Room Number 8, before the Honorable Judge Eugenio Ramos Ortiz. Specifically, Pagán Oquendo alleges that certain adverse publicity he received in local newspapers in connection with a previous criminal action against him, wherein he pleaded guilty to two counts of rape and received a suspended sentence, will make it impossible for him to receive a fair and just trial before Judge Ramos Ortiz.
The plaintiff has submitted into evidence a total of twenty two (22) newspapers wherein are printed articles, some of whose headlines read: "Young Man Used Knife in Attacks on Women", "Indefinite Trial Delay is Asked for Rapist", "Rapist Pagán Goes on Trial in Slay Case", and "Freed Rapist Faces Murder Charges".
Pagán Oquendo was originally scheduled to stand trial for murder on August 28, 1973. But on August 27, 1973, he filed a complaint in this Court asking that we stay proceedings in the State Court. We issued an order on the same day requiring defendants herein to appear before us on September 13, 1973 and show cause why the State Court proceeding should not be enjoined. As a consequence of our order, the State Court postponed trial for September 5, 1973. On September 5, 1973, the plaintiff again filed a motion requesting injunctive relief and by order of this Court, proceedings were stayed until September 15, 1973.
At the hearing on September 13, 1973, the plaintiffs moved orally for an extension of the temporary restraining order and after arguments were heard, the extension was granted.
As things stand now, Pagán Oquendo will stand trial for murder and violation of the weapons law before Judge Ramos Ortiz on October 2, 1973.
The plaintiff now requests that we enjoin the state proceedings until such time as the adverse publicity surrounding his case "fades away". He argues that otherwise, the prejudicial pretrial publicity he has received will taint the minds of the jurors to such an extent that it will be virtually impossible for him to receive a fair, just and impartial trial. Inasmuch, as such an eventuality will cause him irreparable damage both great and immediate, the plaintiff argues, the Anti-Injunction Act, Title 28, United States Code, Section 2283, should not be interposed to bar the equitable relief sought. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1970); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1970).
The plaintiff maintains that the threat posed to his federally protected right cannot be eliminated by his defense against a single prosecution. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714.
Plaintiff's attorney states in his memorandum of law that plaintiff's cause of action has been sustained by the United States Supreme Court in the case of Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1971). But that case holds nothing more than that it is error for a District Court in a Section 1983 action to hold it is absolutely without power to enjoin a criminal proceeding in a state court under any circumstances whatsoever. The Mitchum Court points out that Section 1983 of the Civil Rights Act is an Act of Congress intended to be an exception to the general provisions of the Anti-Injunction Act. We do not question Pagán Oquendo's right to seek relief under Section 1983 over and above the provisions of Section 2283, but to do so, there must still be a showing of bad faith harassment or irreparable injury that is both serious and immediate before this Court will enjoin a criminal proceeding pending in the Commonwealth Court. Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488, decided May 7, 1973.
After duly considering all the evidence submitted in the case at bar and based on the principles set down by this Court in the case of Martinez v. Commonwealth of Puerto Rico (D.C.P. R.1972), 343 F.Supp. 897, we feel Pagán Oquendo has not made a showing of irreparable injury beyond that type of injury incidental to every criminal proceeding brought lawfully and in good faith. Douglas v. City of Jeannette (1943), 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324. Whatever degree of injury Pagán Oquendo has suffered due to adverse publicity, can be counteracted by recourse to the available state remedies designed to insure a fair and just trial.
The plaintiff cites Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L. Ed.2d 600, as support for his contention that the Commonwealth proceedings involved herein should be enjoined. We note immediately, however, that the type of adverse publicity received by Pagán Oquendo is nowhere near as severe as the type of adverse publicity surrounding the trial of Dr. Sam Sheppard and which caused the Supreme Court of the United States to overturn his conviction for murder.
Furthermore, the Supreme Court of the United States did not reverse Dr. Sam Sheppard's conviction on grounds of prejudicial pretrial publicity. There is no way to stop a free press from generally informing the citizenry of public events and occurrences on grounds that such information might prejudice a citizen's right to a just and fair trial. As Justice Douglas stated in his dissenting opinion in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 2686, 33 L.Ed.2d 626, 657:
(at page 721, 92 S.Ct. at page 2692).
Dr. Sam Sheppard's conviction was reversed, rather, because given the prejudicial pretrial publicity, the Court did not take precautionary measures against it, and because it allowed such publicity to invade the accused's rights during trial.
The right of the press to publish free from restraint and the right of the accused to receive a fair and impartial trial are not mutually exclusive and we have no reason to think that the trial Court herein involved will not act to insure that Pagán Oquendo be allowed to exercise all the precautionary state remedies that are available to him. As we stated in Martinez v. Commonwealth of Puerto Rico, supra, these remedies include:
"(a) in the pending criminal proceedings no jury has been selected yet, and at the proper time plaintiff will have the opportunity to voir dire said jury and inquire from each and every one of them if he has been influenced by the press statements made in his cases; (b) under Rule 113 of the Commonwealth Rules of Criminal Procedure, Title 34 Laws of Puerto Rico Annotated, plaintiff will also have the opportunity of challenging the whole panel as well as each juror individually; and (c) he has a whole gamut of appealable remedies, first, to the Supreme Court of Puerto Rico from the decision of the Superior Court on the attack he may care to make on the jury, and, if convicted, he may appeal the decision to the Supreme Court of Puerto Rico; and lastly, he may seek ultimate direct review from the Supreme Court of the United States under Title 28, United States Code, Section 1258."
In addition to Sheppard, the plaintiff also relies on Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Turner v. Louisiana, 379...
To continue reading
Request your trial
-
Marsico v. Elrod
...has unanimously held that allegations of injury incidental to a criminal proceeding do not state a claim for relief. Oquendo v. Ortiz, 372 F.Supp. 79 (D.C.Puerto Rico 1973). In sum, we find no factual substantiation sufficient to sustain a finding of bad faith and harassment which would rem......
- Kessler v. Cupp, Civ. No. 72-485.