State of Maryland v. Brown

• Decision Date: 23 January 1969
• Docket Number: Crim. No. 28193.
• Citation: 295 F. Supp. 63
• Parties: STATE OF MARYLAND, and/or Ira Johnson, Sheriff, Dorchester County v. H. Rap BROWN.
• Court: U.S. District Court — District of Maryland

295 F. Supp. 63

STATE OF MARYLAND, and/or Ira Johnson, Sheriff, Dorchester County v. H. Rap BROWN.

Crim. No. 28193.

United States District Court D. Maryland.

January 23, 1969.

COPYRIGHT MATERIAL OMITTED

Francis B. Burch, Atty. Gen., of Maryland, Morton A. Sacks, Asst. Atty. Gen., for respondents.

William M. Kunstler, New York City, Harold Buchman, Baltimore, Md., for defendant.

KAUFMAN, District Judge.

H. Rap Brown was indicted, on August 14, 1967, by the grand jury of Dorchester County, on one count of arson, one count of the common-law crime of riot and one count of the common-law crime of inciting to riot. Those offenses are alleged to have been committed by Brown in the City of Cambridge, Dorchester County, Maryland, on or about July 24, 1967, during a period of civil disorder in that city. Subsequent to August 14, 1967, Brown was arrested in Virginia on a governor's extradition warrant. Brown's efforts to prevent extradition from Virginia to Maryland, his application for bail, his attempts to have conditions of his bail altered, and his resistance to subsequent bail revocation, are set forth in Brown v. Fogel, 387 F.2d 692 (4th Cir. 1967), and United States ex rel. Brown v. Fogel, 395 F.2d 291 (4th Cir. 1968).

Brown, after unsuccessfully seeking bail in the state courts of Virginia, was granted his release by the United States District Court for the Eastern District of Virginia, on his own recognizance, from the detaining custody of Virginia officers under the Maryland extradition warrant, provided that he "remain in the general custody of his attorney in the Southern District of New York except for travel for appearances in courts in which criminal charges are pending against him and for necessary preparation for defending such charges." 387 F.2d at 693-694, supra. Brown was also directed to "return to the Eastern District of Virginia, as soon as he was released on bail or otherwise by the United States District Court for the Eastern District of Louisiana, for transfer to the Commonwealth of Virginia, to be held without bail pending the disposition of his various appeals and other applications in opposition to his extradition to the State of Maryland for trial on the criminal charges pending against him there." 395 F.2d at 292 supra. Brown appealed, seeking a modification of the bail order to enable him to speak throughout the United States and to journey once to England for that purpose. In the resulting appeal proceeding, the Attorney General of Virginia questioned the jurisdictional and the policy bases of the District Court's release of Brown on bail. Chief Judge Haynsworth, speaking for himself and Judge Winter, rejected that attack by Virginia's Attorney General, and also denied Brown's appeal. Judge Bryan, dissenting, stated that the grant of bail should be vacated. In the majority opinion, Chief Judge Haynsworth, commenting on "Brown's attack upon extradition," noted that among the reasons stated by Brown was "that he feared bodily harm and deprivation of constitutional rights should he be delivered to the Maryland authorities.8" 387 F.2d at 696. (Footnote 8, in Judge Haynsworth's opinion, reads in part:

If constitutional questions should arise during the course of a trial in Maryland, they are fully subject to review in the courts of that state and on federal habeas corpus.)

Brown's bail was revoked by the District Court for the Eastern District of Virginia following a hearing in that Court and a finding by Judge Merhige that Brown had travelled to two places in California in violation of the provisions of the Court's earlier order. Judge Merhige also summarily denied Brown's petition for habeas corpus relief, after first considering the record in a Virginia state court proceeding in which Brown had sought habeas corpus relief. Holding that the evidence supported the finding of the Court below, the Fourth Circuit affirmed the revocation of bail, and also sustained the summary denial of the application for a writ of habeas corpus. Writing for Chief Judge Haynsworth, Judge Bryan and himself, Judge Winter reviewed (395 F.2d at 295-296) the proffers of proof made by Brown in the state court plenary hearing and in argument before the Fourth Circuit.

Briefly stated wrote Judge Winter the proffers were that the State's Attorney of Dorchester County, Maryland, the county in whose Circuit Court relator was indicted, wore a pistol in court, that Negroes were denied fundamental rights in the City of Cambridge and in Dorchester County, Maryland, that relator was struck on the forehead by a pellet from a shotgun fired at the outbreak of civil disorder in Cambridge, Maryland, which he was charged with fomenting, that General Gelston, the Commanding General of the Maryland National Guard, exonerated relator from fomenting civil disorder in Cambridge, Maryland, that civil unrest in Cambridge, Maryland was precipitated by the act of a deputy sheriff after relator had delivered a fiery speech and that relator had been advised that he could not be represented by an out-of-state lawyer at his Maryland trial.

Assuming the proffers to be true, Judge Winter wrote (at 296):

We take cognizance of the provisions of Maryland law which would permit the Circuit Court for Dorchester County, upon application, to remove relator's trial to another area of the state. Maryland Constitution, Art. IV, § 8; 7 Annotated Code of Maryland (1965 Ed.), Art. 75, § 44. And we have no doubt that upon a minimal showing that a fair and impartial trial cannot be held, removal will be freely granted. Not only is removal a provision of Maryland law which would enable relator's trial to be held in an area of the state which does not have the tensions present in Cambridge, Maryland, and thus diminish the possibility of another outbreak of civil disorder with consequent dangers to relator and others, we can presume also that Maryland will obey the command of Article 25 of its Declaration of Rights and the command of the Eighth Amendment of the Federal Constitution, as made applicable to it by the Fourteenth Amendment, and grant bail which is not excessive. If thus enlarged, relator's exposure to the danger to which he claims he will be subjected will be further diminished.

Judge Winter also noted (at 295) that Brown's "outstandingly competent counsel," conceded during argument

what is manifest, namely, that if he were convicted in Maryland, by proceedings which denied him due process of law, he could obtain redress of his rights from the Maryland Special Court of Appeals, or the Maryland Court of Appeals, or the Supreme Court of the United States, failing which he could attack his conviction collaterally in the United States District Court for the District of Maryland, with a right of appeal to us and a discretionary right of further review to the Supreme Court of the United States. Cf. Sweeney v. Woodall, 344 U. S. 86, 73 S.Ct. 139, 97 L.Ed. 114 (1952).

Eventually, on April 18, 1968, Brown was returned to Cambridge from Virginia and "waived arraignment and was released on bail."¹

On November 1, 1967, certain plaintiffs whose attorneys included lead counsel who had represented Brown in the proceedings reviewed supra, instituted in this Court a proceeding under 42 U.S. C. § 1983. Brown was not named as a plaintiff in the original complaint in that proceeding. Chester et al. v. Kinnamon et al., 276 F.Supp. 717 (D.Md.1967).

This Court wrote in that opinion (at 718-719):

The complaint alleges that six of the nine plaintiffs are residents of Cambridge, Maryland, and that two of those six are members of the Cambridge Black Action Federation suing on behalf of themselves and others similarly situated. A seventh plaintiff sues as a member of the Congress of Racial Equality for himself and others similarly situated. The eighth plaintiff is alleged to be an unincorporated association, the Cambridge Black Action Federation, described as an organization "whose purpose is to help to secure to all black citizens of Cambridge the rights guaranteed to them under the Constitution of the United States, and to end all forms of racial segregation and discrimination" in Cambridge. A ninth plaintiff is the Congress of Racial Equality, stated to be an unincorporated association, with a purpose, national in scope, substantially corresponding to the local purpose of the Cambridge Black Action Federation. Jurisdiction is alleged under the Federal Constitution and named amendments thereto, and under certain federal statutes. The amount in controversy, exclusive of interest and costs, is stated to exceed $10,000.

The complaint names four defendants, respectively the Chief of Police and the Fire Chief of Cambridge, and the State's Attorney and Sheriff of Dorchester County; and alleges that said defendants have "purposely conspired together and entered into a plan or scheme of concerted and joint action" with each other and with others to subject plaintiffs and the classes they represent to deprivation of their constitutional rights. Pursuant to such plan or scheme, defendants are alleged to have refrained and to continue to refrain from prosecuting persons seeking to kill and injure plaintiffs and members of the classes they represent, and to have prosecuted and to continue to prosecute plaintiffs and such class members under Art. 27, Secs. 7, 12 and 123 of the Annotated Code of Maryland, as amended, and under the common-law crime of "Inciting to Riot"; otherwise to harass and deter them from exercising their constitutional rights; and, to refrain from providing plaintiffs and such class members with fire and police protection. The allegations of the complaint contain specific references to certain events, including fires and acts of violence "against the black community" in Cambridge during June and July, 1967.

The complaint alleges that the three Maryland statutes and the common-law crime of inciting to riot are "void and illegal on their face and as

...