State ex rel. Shakur v. McGrath

• Decision Date: 30 March 1970
• Parties: The STATE of New York on relation of Lumumba Abdul SHAKUR, et al., Petitioners, v. George F. McGRATH, etc., Respondent.
• Court: New York Supreme Court

Page 483

309 N.Y.S.2d 483

62 Misc.2d 484

The STATE of New York on relation of Lumumba Abdul SHAKUR et al., Petitioners, v. George F. McGRATH, etc., Respondent.

Supreme Court, Criminal Term, Queens County, Part I.

March 30, 1970.

Gerald B. Lefcourt, William E. Crain, Carol H. Lefcourt, Sanford M. Katz, Robert J. Bloom, Charles T. McKinney, New York City, by Herbert Reid, Washington, D.C., Leroy D. Clark, New York City, of counsel, for the writ.

Frank S. Hogan, Dist. Atty., New York County, by Joseph A. Phillips, and Jeffrey Weinstein, Asst. Dist. Attys., of counsel, opposed.

MEMORANDUM

JOHN J. LEAHY, Justice.

The proceeding before the Court was initiated by a petition for a writ of habeas corpus, which said writ was signed by this Court on the 5th day of March, 1970, and same was made returnable on March 9, 1970. On this latter date the Court heard oral argument from counsel for petitioners and respondent. The Court reserved decision and both sides were given time to, and have submitted memorandums of law and affidavits in support of, and in opposition to said application. The respondent also requested that all of the prior proceedings in this case be deemed part of this record, and has made available to the Court the minutes of the proceedings giving rise to this application, the People's brief used in the United States Supreme Court also in relation to this matter, and an affidavit submitted by the People to the Appellate Division, First Department, on January 23, 1970.

The Court also notes that subsequent to hearing oral argument, the Court received papers on a motion for leave to file a memorandum of Amicus curiae NAACP Legal Defense and Educational Fund, Inc. Attached thereto are their memorandum and also a copy of a brief filed by them with the Supreme Court of the United States, October Term, 1969, concerning prior proceedings concerning these petitioners. Said motion to file Amicus curiae is granted and said papers are considered in this proceeding.

In view of the gravity of the legal questions raised herein the unprecedented issues of fact presented and the far reaching results hereof, the Court feels constrained to thoroughly review what has transpired heretofore in reference to these petitioners.

On April 2, 1969 the New York County Grand Jury handed up an indictment charging the petitioners and others with a number of crimes. Twenty-one defendants were named in the indictment but only eighteen have been apprehended. Of the eleven petitioners concerned herein, two, namely William King, also known as Kinshasa, and Lee Roper, also known as Shaba-Um, fled New York and were apprehended seven months later in Columbus, Ohio.

Bail was set in the New York County Supreme Court as follows:

                Curtis Powell                         $100,000
                Robert Collier                         100,000
                Richard Moore, a/k/a Analye Dharuba    100,000
                Alex McKiever, a/k/a Catarra           100,000
                Lumumba Abdul Shakur                   100,000
                John J. Casson, a/k/a Ali Bey Hassan   100,000
                Walter Johnson, a/k/a Baba Odinga      100,000
                Clark Squire                           100,000
                Michael Tabor, a/k/a Cetewayo          100,000
                Lee Roper, a/k/a Shaba Um              No bail
                William King, a/k/a Kinshasa           No bail
                

On a habeas corpus proceeding subsequently brought in Supreme Court, Queens County, on behalf of petitioners Clark Squire and Michael Tabor, their bail was reduced to $50,000 each. On appeal to the Appellate Division, Second Department, from this order, the Court denied any further reduction of bail as to these two defendants. The New York State Court of Appeals affirmed that ruling in June, 1969. (People ex rel. Tabor v. McGrath (Commissioner of Correction) 25 N.Y.2d 804, 303 N.Y.S.2d 665, 250 N.E.2d 712 (1969).)

Writs of habeas corpus brought on behalf of the other petitioners seeking a reduction of bail were denied. These orders were appealed to the Appellate Division, First Department, which affirmed. (People ex rel. Shakur v. Commissioner of Correction, 32 A.D.2d 921 (1969).)

All of the petitioners then sought Federal habeas corpus in the United States District Court. The District Court denied habeas corpus. (United States ex rel. Shakur v. Commissioner of Correction, 303 F.Supp. 299, 303 (1969).)

The petitioners appealed the District Court ruling to the United States Court of Appeals and on two occasions the Court of Appeals affirmed the decision of the District Court (2 Cir., 418 F.2d 243).

The petitioners then sought Certiorari in the Supreme Court of the United States pursuant to section 1254, subdivision (1), of Title 28 of the United States Code. This petition was denied, 397 U.S. 999, 90 S.Ct. 1144, 25 L.Ed.2d 408.

The petitioners are charged with numerous counts of very grave and serious crimes, including among others: attempted murder and arson in various degrees for allegedly bombing the 44th police precinct and a district office of the Board of Education, and for attempting to dynamite the 24th police precinct; conspiracy to detonate dynamite, fire bombs or other explosive devices at Macy's, Alexander's, Korvette's, Bloomingdale's and Abercrombie and Fitch during the Easter shopping season, and to detonate six bombs on predetermined sites along the New Haven Railroad's tracks.

The aforementioned crimes allegedly involved three plots; one, to kill police officers by bombing police stations and shooting them; a second, to bomb certain department stores during the Easter shopping season; and a third, to bomb certain railroad facilities. It is further alleged that pursuant to the arrests of these petitioners, the police seized a number of bombs, bomb components, rifles, shotguns, automatic pistols and revolvers and one of the said rifles was found to have been utilized to shoot three police officers in Brooklyn in 1968.

The petitioners at the time of their arraignment did not request time to make pre-trial motions. On May 5, 1969 the Manhattan District Attorney's office placed the indictment on the trial calendar and requested an immediate trial. The defense requested a three-month adjournment. The case was again on the trial calendar on May 13, 1969, when Justice Murtagh granted an adjournment to June 10, 1969 and directed the defendants to file their motions by the end of May.

During the succeeding months and through November 13, 1969, the petitioners filed a multitude of motions, which included fourteen motions directed at the indictment, and motions requesting a stay of trial until February, 1970. During this period defendants filed an application for habeas corpus in the United States District Court for the Southern District attacking the bail set for defendants. Judge Palmieri denied the relief sought (303 F.Supp. 303). The defendants then appealed to the United States Court of Appeals for the Second Circuit which affirmed the denial. 418 F.2d 243. The Court notes that during this period the record is uncontradicted in that the People constantly pressed for a trial and the defendants persisted in delying same and requested numerous adjournments, which will be gone into further by this Court in this decision. On this point the United States Court of Appeals stated in their memorandum of October 24, 1969 (418 F.2d 243, 244, Supra):

'It is apparent from the history of the proceedings in the state supreme court that defendants and their counsel have sought delay by every means available since their indictment in April 1969. The State, on the other hand, has consistently stood ready to proceed to trial * * *.'

On November 17, 1969 a superseding indictment was returned and defendants again applied to the United States District Court for the Southern District of New York, and their application was again denied.

On December 18, 1969 the case was again on the trial calendar and counsel for defendants advised Justice Murtagh that February 2, 1970 was a firm date for trial.

On February 2, 1970, pre-trial hearings were commenced in the New York County Supreme Court before the Honorable Justice John M. Murtagh. The hearings continued until February 25, 1970 and, on this date, as this Court commented at the oral arguments of this present application, Justice Murtagh took the unprecedented action of recessing said hearings indefinitely because of the continued misconduct of petitioners herein during said hearings,

Following is part of the colloquy that transpired just prior to Justice Murtagh recessing the hearing:

'COURT: The defendants will remain silent.

DEFENDANT JOHNSON: Shut up.

DEFENDANT POWELL: We ain't going to remain silent, pig.'

At this juncture this Court, having had the opportunity to carefully peruse every page of the three (3) volumes of minutes of the hearings before Justice Murtagh, is compelled to state that the conduct of the petitioners throughout the hearings most certainly is unprecedented in the annals of judicial proceedings.

The conduct and language of the petitioners at those hearings, the unending vilification heaped upon the Court, the almost uninterrupted flow of vile, demeaning, vicious, base and threatening language shouted by the petitioners in open court, must be unparalleled in Court history. The reading of the minutes shocked the very conscience of this Court.

The Court's examination of the minutes show that there were in excess of six (600) hundred interruptions by the petitioners, each one of which can be attributed to the individual petitioner making it. There are dozens of other interruptions attributed to the petitioners as a group that the court reporter was unable to individually identify.

Following is an excerpt from the minutes of some of petitioner's outbursts 'THE COURT: The defendants are cautioned that they are represented by counsel and are not to speak out.

A DEFENDANT: We will speak out whenever we want to unless you want to do the 250 years for us.' (p. 25)

'THE COURT: The defendants are assured that they will have a fair...