United States v. Nenna

• Decision Date: 15 February 1968
• Docket Number: No. 68 Civ. 461.,68 Civ. 461.
• Citation: 281 F. Supp. 388
• Parties: UNITED STATES of America ex rel. William EPTON, Petitioner, v. Albert NENNA, Warden, Manhattan House of Detention for Men, Respondent.
• Court: U.S. District Court — Southern District of New York

281 F. Supp. 388

UNITED STATES of America ex rel. William EPTON, Petitioner, v. Albert NENNA, Warden, Manhattan House of Detention for Men, Respondent.

No. 68 Civ. 461.

United States District Court S. D. New York.

February 15, 1968.

Eleanor Jackson Piel, Sanford M. Katz, New York City, for petitioner.

Frank S. Hogan, Dist. Atty. of New York County, Robt. D. MacLachlan, Jr., Asst. Dist. Atty., for respondent.

MEMORANDUM

FRANKEL, District Judge.

The petition for habeas corpus raises complex and difficult questions of due process in both the procedural and the substantive meanings of the constitutional phrase. To mention only the problem which has caused particular concern at the outset of this proceeding, there is a sweeping attack upon the composition of the grand jury which indicted petitioner, implicating both the adequacy of the governing state statutes on their face and the application of the statutes in the circumstances of this case. There are, in addition, questions under the First Amendment (as it applies to the States through the Fourteenth) which led one Justice of the Supreme Court to file a dissent from the denial of certiorari (and dismissal of an appeal) and another to note the limited grounds of his concurrence in that disposition. Epton v. New York, 390 U.S. 29, 88 S.Ct. 824, 19 L.Ed. 2d 808, Jan. 22, 1968 (Douglas, J., dissenting, and Stewart, J., concurring).

With the filing of the present habeas application, petitioner applied for release on bail by this court pending decision as to whether the writ should finally issue. While the question may not be wholly free from doubt, the court concludes that there is power to grant such interim relief. See, e. g., Johnston v. Marsh, 227 F.2d 528, 56 A.L.R.2d 661 (3d Cir. 1955); Application of Stecker, 271 F.Supp. 406, 407-408 (D.N.J.1966), aff'd, 381 F.2d 379 (3d Cir. 1967); United States ex rel. Stevens v. McCloskey, 239 F.Supp. 419, 424 (S.D.N.Y.), aff'd on other grounds, 345 F.2d 305 (2d Cir. 1965), rev'd on other grounds, 383 U.S. 234, 86 S.Ct. 788, 15 L.Ed.2d 724 (1966); United States ex rel. Mancini v. Rundle, 219 F.Supp. 549 (E.D.Pa.1963), aff'd, 337 F.2d 268 (3d Cir. 1964). It is, however, a power that ought to be most sparingly exercised. Where the State has carried a prosecution to conviction and the verdict has been sustained through the appellate process, including denial of certiorari and dismissal of appeal by the Supreme Court, there are compelling interests on the side of proceeding to execute the criminal judgment. It should require a substantial showing of countervailing circumstances to override or postpone that objective.

Proceeding upon such premises, the court heard extensive argument and studied preliminarily the voluminous papers supporting the bail application. It appeared in the end that this was one of the relatively rare cases in which relief of this kind should be granted. The factors leading to this conclusion are:

(1) The substantiality of the issues posed by the habeas petition.

(2) The inevitably long time it would require for the evidentiary hearing and study necessary to resolve at least the grand jury issue.

(3) The fact that petitioner, having served three months before he was released on bail pending his state appeal, will probably complete his sentence within the next five months or so.

(4) The fact, just mentioned, that petitioner actually served three months during the state appellate process, whereas the eventual ruling of the trial judge, certifying the existence of "reasonable doubt," represented a mature judgment that this period of incarceration should ideally have been avoided.

(5) The undisputed judgment, reflected in the comments of Mr. Justice Harlan granting bail pending disposition of the petition for certiorari, that petitioner presents no substantial danger of absconding while he is free on bail.

The conclusion that this was a proper case for the granting of bail, conveyed to counsel during a second oral hearing, tended in practical effect to intensify some difficult and delicate procedural problems in the case. Initially at least, there was doubt and some...