Turco v. State of Maryland, Civ. A. No. 70-1464-M.

• Decision Date: 03 March 1971
• Docket Number: Civ. A. No. 70-1464-M.
• Citation: 324 F. Supp. 61
• Parties: Arthur TURCO v. STATE OF MARYLAND and Warden, Baltimore City Jail.
• Court: U.S. District Court — District of Maryland

324 F. Supp. 61

Arthur TURCO v. STATE OF MARYLAND and Warden, Baltimore City Jail.

Civ. A. No. 70-1464-M.

United States District Court, D. Maryland.

March 3, 1971.

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

Francis B. Burch, Atty. Gen., and Alfred J. O'Ferrall, III and Donald R. Stutman, Asst. Attys. Gen., Maryland, for State of Maryland, and Hilary D. Caplan, Asst. State's Atty., of Baltimore City, Baltimore, Md., for Warden, Baltimore City Jail.

MILLER, District Judge.

Represented by privately retained counsel, Arthur Turco has filed a petition for habeas corpus relief in this Court under 28 U.S.C.A. § 2254 and, in the alternative, for removal of a pending criminal prosecution from the Criminal Court of Baltimore to this Court under the provisions of 28 U.S.C.A. § 1443. The petitioner is now confined in the Baltimore City Jail awaiting trial in the Criminal Court of Baltimore, under a six-count indictment issued about May 1, 1970, charging, inter alia, conspiracy to murder, assault with intent to murder, solicitation to murder, solicitation to kidnap, and accessory to murder.

The petition alleges, under oath, that the petitioner is being held without bail, and that on or about December 24, 1970, Judge Paul A. Dorf of the Criminal Court of Baltimore City, after hearing, denied a petition for a writ of habeas corpus filed therein for the purpose of attempting to have bail set pending trial.

The petition and affidavit filed in this Court further allege, in pertinent part, that petitioner was arrested in Canada on or about October 15, 1970, in a dragnet roundup of members of the Front Liberation de Quebec (F.L.Q.) and that he waived extradition to the State of Maryland in connection with the aforesaid indictment in the Criminal Court of Baltimore in reliance upon an alleged assurance by the State's Attorney of Baltimore City in a telephone conversation with the petitioner on or about November 23, 1970, that "* * * it would be possible to arrange for the setting of bail by agreement." Petitioner further alleges that he was advised by his Canadian counsel that he had good grounds upon which to resist extradition from Canada and that, in a companion deportation proceeding, he agreed to a voluntary departure from Canada rather than to resist deportation. The petition further alleges, in pertinent part, that from July 1, 1970, to date (i. e., December 28, 1970) bail was allowed in seven (7) capital cases in Baltimore City without habeas corpus and in thirteen (13) capital cases in Baltimore City after habeas corpus. He further alleges that he is a college graduate, is a practicing attorney in good standing, is a member of the bar of the State of New York, is married to a resident of Baltimore City, and has never been convicted of a crime. He further alleges that a local bondsman from Baltimore City has agreed to accept certain property owned by the petitioner's parents in Fort Washington, New York, as collateral security for writing a bond should bail be set for him. The petitioner further alleges that, at the aforesaid bail hearing before Judge Dorf it was stated by whom is not clear that the only evidence of substance against the petitioner are some remarks attributed to him by certain paid informers of the state and that while statements by certain of these informers were given to the Baltimore City police authorities in January of 1970, regarding the crimes of which the petitioner stands charged, warrants of arrest were not issued until approximately three or four months later and shortly following a visit by the Governor of Maryland to the Baltimore City Police Commissioner. The petition further alleges that Judge Dorf relied exclusively on the case of Fischer v. Ball, Sheriff, 212 Md. 517, 129 A.2d 822 (1957), in denying bail, and that therein the Court of Appeals of Maryland held in essence, "* * * in a capital case, an indictment creates a `presumption of guilt' which the defendant must rebut in order to obtain bail, which was held to be discretionary in such cases." Without attempting to pursue any other state remedies, the petitioner filed the present petition in this Court alleging that the action of Judge Dorf, in denying him bail pending trial, has denied him due process of law and equal protection of the laws and that, further, said action has made it impossible for him to have a fair trial in the state courts.

On January 5, 1971, this Court held a hearing, limited to the sole issue of whether the petitioner had sufficiently exhausted his state remedies to entitle him to a hearing on the merits of his petition for a writ of habeas corpus. Having determined that Maryland has provided no right of appeal in the state courts from a denial of a petition for a writ of habeas corpus contesting excessive bail or the denial of bail (see Hudson v. Superintendent, 11 Md.App. 253, 273 A.2d 470 decided February 11, 1971), this Court held that petitioner had indeed exhausted his state remedies and conducted a hearing on the merits of the petition on February 5, 1971.

I Petitioner's Right to Bail Relief under 28 U.S.C.A. § 2254

It is established that federal courts have the power, in the exercise of their habeas corpus jurisdiction, to review the actions of state courts in denying or fixing bail when it is alleged that the state court action violates applicable provisions of the Constitution. In re Shuttlesworth, 369 U.S. 35, 82 S.Ct. 551, 7 L.Ed.2d 548 (1962); Brown v. Fogel, 387 F.2d 692 (4th Cir. 1967), cert. den., 390 U.S. 1045, 88 S.Ct. 1647, 20 L.Ed.2d 307 (1968); Dameron v. Harson, 364 F.2d 991 (5th Cir. 1966), aff'g on opinion below, 255 F.Supp. 533 (W.D.La. 1966); Mastrian v. Hedman, 326 F.2d 708 (8th Cir. 1964), cert. den., 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1964).

Although the Supreme Court has not spoken directly on the question, it has been held that the prohibition of the Eighth Amendment against requiring excessive bail applies to the states under the Fourteenth Amendment. Pilkinton v. Circuit Court of Howell County, Missouri, 324 F.2d 45 (8th Cir. 1963); Mastrian v. Hedman, supra. The Court in Mastrian v. Hedman, id., 326 F.2d at 710, stated, however, as follows:

"Neither the Eighth Amendment nor the Fourteenth Amendment requires that everyone charged with a state offense must be given his liberty on bail pending trial. While it is inherent in our American concept of liberty that right to bail shall generally exist, this has never been held to mean that a state must make every criminal offense subject to such a right or that the right provided as to offenses made subject to bail must be so administered that every accused will always be able to secure his liberty pending trial."

In 1952, the Supreme Court, in reviewing a federal statute authorizing the Attorney General to hold alien communists under deportation charges without bail, stated that the Eighth Amendment does not require that bail be allowed in every criminal prosecution. Carlson v. Landon, 342 U.S. 524, 545-546, 72 S.Ct. 525, 96 L.Ed. 547 (1952).

It should be noted that the Eighth Amendment has never been considered to prevent Congress from classifying criminal cases into those in which an accused is entitled to bail as a matter of right and those in which the allowance of bail is a discretionary matter. Carlson v. Landon, id.; United States v. Egorov, 319 F.2d 817 (2d Cir. 1963), cert. den., 375 U.S. 926, 84 S.Ct. 329, 11 L.Ed.2d 261 (1963); cf., F.R.Crim.P. Rule 46(a) (1).

If the federal government is not proscribed by the Eighth Amendment from denying bail in certain types of cases, neither is the State of Maryland prohibited from following a rule classifying types of criminal cases into those in which bail is allowed as a matter of right and those in which it is allowed as a matter of discretion. Mastrian v. Hedman, supra; Dameron v. Harson, 255 F.Supp. 533 (W.D.La.1966), aff'd, 364 F.2d 991 (5th Cir. 1966).

Effective January 1, 1962, the Maryland Court of Appeals adopted Rule 777 a of the Maryland Rules of Procedure. That rule provides as follows:

"a. Prior To Conviction.

"Prior to conviction an accused who is charged with an offense the maximum punishment for which is other than capital shall be entitled to be admitted to bail. In a capital case the accused may be admitted to bail in the discretion of the court."

Still in effect, that rule has the force of law and was adopted under the authority of Article IV § 18A of the Maryland Constitution.¹ At the present time, therefore, Maryland is in the posture of having a rule of procedure, with the force of a statute, which classifies types of criminal cases into those in which bail is allowed as a matter of right and those in which it is allowed as a matter of discretion. At the time of the decision in Fischer v. Ball, 212 Md. 517, 129 A.2d 822 (1957), however, Maryland had no constitutional or statutory provisions relating to the fixing of bail in capital cases before trial. Consequently, the Maryland Court of Appeals in that case was required to reach a decision based upon its determination of the state of the common law, which, under Article 5 of the Maryland Declaration of Rights, was incorporated into the law of Maryland as of July 4, 1776. Id. at 522-523, 129 A.2d 822. The Maryland court in Fischer v. Ball stated that the English common law, then still in force in Maryland as a result of the lack of any constitutional or statutory enactments changing the same in reference to bail, made bail discretionary in capital cases. The court went on at page 524, 129 A.2d at page 826, "the question then becomes one of the proper exercise of that discretionary power, and the fact of the indictment for a capital offense has a significant bearing thereon." The court then held that there was no abuse of discretion in denying bail under the facts of that case where the grand jury had indicted the defendant for a capital...