United States ex rel. Frizer v. McMann
| Decision Date | 05 January 1971 |
| Docket Number | Docket 34039. |
| Citation | 437 F.2d 1312 |
| Parties | UNITED STATES ex rel. Calvin FRIZER, Relator-Appellant, v. Daniel McMANN, Warden of Auburn Prison, Auburn, New York, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Guy Miller Struve, New York City, on the brief, for relator-appellant.
Louis J. Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen. and John G. Proudfit, Asst. Atty. Gen., on the brief, for respondent-appellee.
J. Lee Rankin, Corporation Counsel of City of New York, Frances Loren and Frances Morris, New York City, on the brief, amicus curiae, for Mayor of City of New York.
Lawrence N. Marcus, Counsel and William A. Bulman, Jr., Asst. Counsel, New York City, on the brief, amicus curiae, for Judicial Conference of State of New York.
Frank S. Hogan, Dist. Atty., Michael R. Juviler and Peter F. Schwindt, Asst. Dist. Attys., on the brief, amicus curiae, for District Attorney of New York County.
Eugene Gold, Dist. Atty., on brief, amicus curiae, for District Attorney of Kings County.
Thomas J. Mackell, Dist. Atty. and Peter Menoudakos, Asst. Dist. Atty., on the brief, amicus curiae, for District Attorney of Queens County.
Burton B. Roberts, Dist. Atty., Daniel J. Sullivan and Peter Grishman, Asst. Dist. Attys., on the brief, amicus curiae, for District Attorney of Bronx County.
Carl A. Vergari, Dist. Atty. and B. Anthony Morosco, Senior Asst. Dist. Atty., on the brief, amicus curiae for District Attorney of Westchester County.
William Cahn, Dist. Atty. and Jules E. Orenstein, Asst. Dist. Atty., on the brief, amicus curiae for District Attorney of Nassau County.
Michael F. Dillon, Dist. Atty., Joseph P. McCarthy, Asst. Dist. Atty., on the brief, amicus curiae, for District Attorney of Erie County.
William E. Hellerstein, Edward Q. Carr, Jr., Milton Adler, Robert P. Patterson, Jr., Phylis Skloot Bamberger and Gerard G. Betz, New York City, on the brief, amicus curiae, for Legal Aid Society.
John J. McAvoy, Paul G. Chevigny and Thomas J. O'Sullivan, III, New York City, on the brief, amicus curiae, for American Civil Liberties Union and New York Civil Liberties Union.
Lewis Wenzell, Chicago, Ill., on the brief, amicus curiae, for National Legal Aid and Defender Ass'n.
Edwin L. Gasperini, Leon Silverman and Patrick W. McGinley, New York City, on the brief, amicus curiae, for New York State Bar Ass'n.
Cravath, Swaine & Moore, Thomas D. Barr, George J. Wade, R. John Cooper, New York City, and Dorsey D. Ellis, Jr., Iowa City, Iowa, on the brief, amicus curiae, for Association of Bar of City of New York and Lawyers Committee for Civil Rights Under Law.
Before LUMBARD, Chief Judge, WATERMAN, Senior Circuit Judge,* and MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.
Submitted to Court in Banc, April 1, 1970.
Calvin Frizer's appeal from the Northern District's denial of his habeas corpus petition, based on the elapse of one year from his arrest until his jury trial in Nassau County in which he was convicted of burglary in the second degree and attempted grand larceny in the second degree, was thought to raise important questions regarding due process and the Sixth Amendment right to speedy trial. Accordingly, on April 1, 1970, we granted Frizer's petition for rehearing in banc and requested numerous public authorities and interested organizations to file amicus briefs.1
The Attorney General's brief, filed May 15, 1970, advised us for the first time that, after Frizer's arrest on September 30, 1966 on the Nassau County charges, he was indicted in Queens County on October 7, 1966 and on October 20, 1966 he pleaded guilty to attempted grand larceny in the second degree and thereafter, on February 3, 1967, he was sentenced to Sing Sing for a term of one year and three months to two years. Upon our request for further information, Frizer's counsel, while agreeing to the facts regarding the intervening Queens conviction, asserted that Frizer was absent from Nassau County only a total of ten days because of the Queens County proceedings. The district court had not been advised about the Queens case; nor, according to Frizer's counsel, was it advised about all the attempts of Frizer's counsel to have the case tried.
In any event, it is now apparent that Frizer's case was not the case of a defendant held in jail in default of bail for one year before his case was reached for trial.
We agree with the result reached by a panel of this court, reported at 437 F.2d 1309, and affirm the order of the district court.
Meanwhile the number of habeas corpus petitions filed by prisoners in New York state prisons, many of which allege violation of constitutional rights by reason of long periods of time elapsing between arrest or charge and trial in the courts of New York, has assumed alarming proportions.
The Judicial Conference of the State of New York informs us by its brief amicus that, as of April 1, 1970, there were 2,899 persons accused of felony in New York State who had been held in jail three months or more awaiting disposition of the charges against them. Almost 90% of defendants held in jail were facing charges in the five large metropolitan counties and two suburban counties, namely:
New York County ............ 841
Kings County ............... 790
Bronx County ............... 533
Queens County .............. 260
Erie County ................ 58
Nassau County .............. 29
Westchester County ......... 22
The many amicus briefs filed at our request2 advise us of the reasons for the delays in trying criminal cases. It is all too apparent that during the past few years the simultaneous development of numerous conditions has greatly increased the total elapse of time required to process felony charges to final disposition in the trial court by plea of guilty, conviction after trial, acquittal or dismissal.
The Judicial Conference brief summarizes 18 principal causes of delay, one or more of which delay the disposition of every New York criminal case:
The cumulative impact of these conditions on the many pending cases is apparent from the fact that in a large proportion of the 2,899 jail cases, where delays already were three months or longer, more than six months had elapsed since arrest by April 1, 1970. In many New York and Kings County homicide cases the detention before trial had already exceeded one year.
While the present condition in the metropolitan counties is frequently described as an "emergency," its progress has been certain and notorious for the past few years. Thus the situation is more accurately described as chronic. We are convinced that the continuance of this situation cannot excuse denial of due process rights in any particular case where a defendant has not been a party to the delay or absent other circumstances peculiar to his case. The Fourteenth Amendment guarantees to every defendant facing state criminal charges the due process right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). This is a most important constitutional right, and it is the duty of the federal courts to make independent inquiry to protect that right whenever there is a substantial claim of its violation. As the Chief Justice has recently stated for the Court:
Dickey v. Florida, 398 U.S. 30, 37, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970). In his concurrence in the same case, Justice Brennan also noted society's interest in timely prosecution, saying at page 42 of 398 U.S., page 1571 of 90 S.Ct.:
...
To continue reading
Request your trial
-
United States v. Marion 8212 19
...the Potential Defendant, 5 Stan.L.Rev. 95 (1952). The rules that the Second Circuit en banc recently adopted in United States ex rel. Frizer v. McMann, 437 F.2d 1312 (CA2 1971), which appear in Appendix, 28 U.S.C.A. (May 1971 Supp.), require trial within a specified period but apply to 'all......
-
United States v. Salzmann
...in federal courts at the close of an en banc decision rejecting a state prisoner's habeas corpus petition. United States ex rel. Frizer v. McMann, 437 F.2d 1312 (2d Cir. 1971). The petitioner had pressed a Sixth Amendment speedy trial claim after ten and a half months had elapsed between in......
-
United States v. Cassell, 18289-18291.
...Feb. 22, 1971)). The Second Circuit recently published rules for guidance of courts in that circuit. See United States ex rel. Frizer v. McMann, 437 F.2d 1312, 1317 (2d Cir. 1971). However, this circuit has not promulgated a similar 7 Since the government proved that other checks were stole......
-
United States v. Cramer
...have the charges against him dismissed, may spend a year or two or three in custody awaiting trial. See United States ex rel. Frizer v. McMann, 437 F.2d 1312 (2d Cir. 1971) (en banc). If he is fortunate enough to be a so-called "political" defendant, he may arouse sympathy and be able to ad......