4. United States Supreme Court Advance Opinion, Opinion of Justices in Chambers.pdf

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extracted text: UNITED STATES SUPREME COURT Advance Opinion (OPIN IONS OT•' J USTICES I N CHAMBERS) I ROGER S. BANDY UNITED ST ATES 5 L ed 2d 218, 81 S Ct - (No. 171, Misc.) December 5, 1960 SUMMARY An application for release on "pe rsonal 1·eco2'nizance" pending certiorari was denied by DOUG LAS, J., for the reasons stat<..'CI in headnote 5, infra. llilil and R ewgrJi:a11ce Sec. 6; Crimhwl Lr11v Sec. 16 .___:_ fre.:dom during trial. 1. An accused's traditional right to freedom duri ng trial a.nd pending judicial review has to be squared with the 1>0ssibility that he may flee or hide himself; bail is the device to reconcile theS<> -confiicting interests. (Per Douglas, J ., as individual justice.) Eail <rnd Recognizani;i: Src. Ii - 7mrpo:;r. 2. The puz·pose of bail is to insure the J cfcndant's appea1·~n,.c and submission to the judgment of the court, it being assumed that the threat of forfeiture of t•nr-'s goods will be an effective dcte:·n•nt tu the temptation to b1·eak the ccnditions of one's release. ( Per Douglas, a s im!ividua\ justice.) Bail <rnd Rec(lgnizani.:e Sec. 7 . .5 -- e~·cessive !inil. 3. It is unconstitutiomtl to fix ex.-:er-sivc bail te assure t hat a defendant will not gain his freedom. (Per Douglas, 'J ., as individHal justice.) Rail and Reco9nizm1ce Sec. 7 - riyht to rele"i<e. 4. An :.ceu2;.:d's right to releasf' durin2: tr:al and penrlin.; judicial review is heavily favored and the requirement of !>t!cul"ily fer a bond may, in a proper caS(.', be d ispensed with. ( Pt>r Doug-las. J., as individual justice.) Rail and Rewy-nizance Sec. 7 - hearing - i11di11id1wl jiisticc. 5. A defendant's spplication for r"!leasc on " personal recoi.tpjzance" pending certioi·a·d will be .!enicd by :m individual justice of the Supreme Court or th;) Unitul Stutes withflut prejudice lo an :i.r>plication to the Cotirt of Appeals or the District Cout1., where the full cou11. decidcd that the Court of Apptals should" he:u the accused's appeal. ( Per Douglas, J., as individual justice.) OPI NION Mr. Justice Do11glns. On previous application, bail was g ranted conditioned on the t iling of a sufficient bond in th,; amount of $5,000. Bandy v United States, 5 I. cd 2d 34, 81 S C! 25. Nt.w an app!icati<:n is made to me under Huto 46(a) (2) of the Federal Rules of Criminal Procedure for release on "personal recogniza nce"' pending ccrtio· rari. The application recites that the petitioner is unable to giVl' security for the prescribed bond. The f undamental" tradition in this country is that one chat-ge·! with a crime is not, in ordin[lry cil·cumstn11ces, imprisoned until after a judgment of guilt. Under Rule 46 a defendant has a right lo be ieleased on bail before trial, save in capital ca&:es. Pen.-J.ir.g review of a judgment of CQnviction, releas~ on bail may be allowed ·'unless it a ppears that the appt:a\ is Iriv<.lous or taken for delay." Rule 46(a} (:2J. S~ 350 US 1021, 100 Led 1530. This traditional right to freedom durine- t rial and pen!ling judicial review has to be squared with the possibility that the defendant may flee or hide himself. Bail is the vice which we have borrowed to reconcile these conflicting interests. "The purpl)Sa nt bails is to insure the defendant's appearnnce and submission to the judgment of the court." Reynolds v United States, 4 L ed 2d "Hi. 80 S Ct 30, 32. It is assumed t hat the tlireat of forfeiture of one's bOods will be an effective dl!!enent to the tem11tation to break the rvnditions of one's release . . But t his theory is based on the assumption that a defendant hus 111·opert.\·. To continue to demand 11 & ubstantial bond which t'he defendant is unable to secur e raiSt's consideral.lle problems for the e(1ual administ rntion of the law. We have held that an indi.f{f'T:t ckfendant is denied equal protection of thr~ law if he is denied an app1.~l on equal tci·m~ with other defendants, solely because of hif' i!1dia-e11ce. Griffin v Illinois, 351 US 12, 100 L ed 891, 76 S C'. 585. Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to lmvf' enough prope rty to pledge· fo1· his freedom? It would be unconstitutional to fix excessive ha.ii· to nssu 1-e t hat a defendant will not gain his freedom. Stack v. Boyle, 342 US I, 9ti Led 3, 72 S Ct I. Yet in the case o! nn indigent defendant, the fixing of b::1.•l in Even a modest amount. may have the practi~:i.1 :::ffect of denying him release. See Foote, F0reword : Comment c>n the New York Bail Study, 106 U of Pa L Rev 685; Note, 106 U of l'a L Rev G93; Note U of Pa I. Rev 1031. The wrong don<" by tknyin!I releu:e is not limited to thc ,lenial of freedum alone. That denial may have other consequences. In case of reve rsal, Fie wi!I hu.ve sei-v.•d all or part of :l. scnlcnce und"' an er roneous judgml'nt. lm1>lison1:d, > l man may l:avt! t'O opportunit y to investigntl' hi:. case to coopHate with his counsel, to earn t he money that ·is !!till nt.>ce~sary fo1· the fuilest use of his right to :tp!Jeal. !11 the light of these co1111derations, I :ippro:u.h this application with the conviction that t he right to re\e:1se is heavily favored a nd that the requirement of security for the bond may, in a proper case, be dispensed with. Rule 46 (d) indeed provides that "in prop~r cases n<• secu1 ity m·ed be given.~ For there may ho other dctetTents to jumping bail : long 1esidence in a iocality, the ties of friends and family, the efficiency of modern police. Ali these in given case may offo1· a detf'rrf'nt at least equal to th:tt of the thr~at of forfeiture. Here, the Government has ndmitted that petitioncl"·s appeal is not friv0luus. It had no objection t(1 i·elease on a $5,GOO bond. But it does oppose release on an unsecured bond. It contend,g that there is a substantial risk t hat petitioner would not comply with t he conditions of his re!easc. Its showing in this respect troubles me. But I do not reach <l decision on the matter. Th{! Com·t today hold;> t hat the Court of Appeals should hear the i:ippeal. Hence I deny the application without p1-ejudice to an application to the Court of Appeals or the District Court where, at a l}earini;- on the matter, the facts can be better explored than at this distanc~. Pag<> 328 LAWYERS \JOURNAL November 30, 1961 II THOMAS AKEL, Petitioner STATE 01•' NEW YORK 5 L crl 2d 32, 81 S Cl - Jul)· 18, 1960 SU~f MAHY An application for bail pending I! proposed petition for ::erti.•r:iri to review a judgment of convicti<'n affirmed 1r. the Courter Appeals cf New York (7 NY2d !J98, Hlti NYS2d 5·10, 166 NE2d tl4) was denied by FRANKFURTER, \J .. for the reasons st:1trJ in the headMte below. L:fl·il f!fUl Hec-ognizonce Sec. 7 - 1n>ndi119 certiorari i11 S11prr. •1u; Court - federn/ q11e~tio11. A ju:stic1.: of the Supi·emc Court of the United States wil.l deny an appiic.ation for bail pending t\ petitioE !or certiorari to be fi\cJ Sl.>eking revi<!w of a j udgment of convicticn affirmed in t he highc&t l'Ou1·t of a statl:, where it 3ppc;-irs from the opposing affidavit that at no time in 1 he course of the 11rosecutio11 was a claim of a federal nature made, that the stat~ court did not certify that ~n;v federal question was presented to it, and that the remilitur below has not been amended so as to show tlmt in fact a federal claim was considered and rejected by the state court; und where the petition- for • udmission to bail, while claimin&' that a !cdCl"al question is to b<i 1 aised by the proposed petition for certiorari, doc!'I not a1lcge any facts contr&:dicting those stated in the opposing affidavit. ( Per Frankfu rter, J., as mdividu:!.I j11~t.ice. ) OPINION Ur. Justice Frank/11rtc·r, Associate Justice. T his is a motion to fix bail pcndin&" a petition for certior:iri to be filed seeking. revitm'" of a j udgment of conviction affi1meJ in the Court r>f A1:peals of New York (Ill l\l:i.rch ~-lo, HIGO. When a judge as solicitous as is Jud~ Stanley H. Fuld to safeguar:d. the interests of defendant in criminal cases denies an application for bail· pending n proposed 1>ctition for cert iorari to this Court on a claim of a substantial federal right, one naturally attributes some solid ground for sul'..h denial. To me this is found in the oppusing affidavit in which it is dcpos('d that at no time in the course of this prosecution was a claim of a federal nature m:ide, that the New York Court of Appeals did not certify that any fed era! question was presented to it, and that, 2\though af!irmance of the judgment of conviction was rendered on March 24 last. th·~ remitit.u'.r below has not been amended so as to show that in fact a federal claim was considered' and rejected by the New York Court nf Appeals. While the pet:tion for admission to bail' c\aitn3 that a federal question is to be raised by a proposed petition for cert i('· rari, it does not allege that such a federal question had been raised before the New York Court of Appeals nnd was there denied. Nor is U1ere any claim that the remititur was amended so a s to set forth that the Court of Appeals did in fact pass on the federal claim. The pompus old judge glared over the rims of his spectacles at the prisc>ner before him on a charge of vagrancy. He !ooki'd at the n"!port of the arrest ugain and asked rather scomh:lly, "Have you eve1 earned a dolla:- in your life?" "Yes, Your Honor," replied' the vagrant. " I voled for you ot the last election." Coronet, February, 1961 Noi· '.l~s the memorandum of the Court of Appeals affirming tlw l On~'1ct1on , 7 NY2d 998, 999, J9!) NYS2J 510<, 166 NE2d 514 , in sett.m g forth the arguments made by defendant Akel in that court il'c\ud~ the claim of a {~era! rig>ht. ' . In t~_is st~te ~l. the record before me I am compelled to deny had pcnc1mv, In~ filrng 'lf 11 petition for certiorari. III ROG ER S.· BAN Dy, Petitioner, UNITED STATES 5 L d 2d 34, 81 S Ct ( No. 171, Misc,) August 31, 1960 SUMMARY . ~n a pplication for bail pending disposition ot the appliC'a nt'f, ~:~~tl~~~~~lr i~e~~:~~l~tewl~s i:;r:~ted by Dou&"las. J., for the reaBail an.d RecQg11i:umce Sec. 7 - pending certiorari. ~· Although an application for bail pending disposition of the :ipphcant's r:ietition for ct:;rtiorari had be1<n denied by another ju~t ic~ of the Supreme Court of the United States, such applicati(ln wrll ~e grant<:d where the Solicitor GP-neral does not oppose the grant1~g of bail in the suggested amount and the issues aro ones on whrch there may well' be a division <1! views when the merits are reached. (Pei· Dougfa<i, J., as individual justice.) ApJ>eal and E-N·or Sec. 910.G - certioratri - wlum granted. 2. One of t~e te~ls of whether substantial questions justifyirg the gi·ant of cert101·ar1 by the 8 upreme Court of the United Sta~~11 '.ire p1 ·csented is whether the issues are one on which there may ,11e!l be :\ rlivision of views whl:n the m<'rits a re i·eached. ( Pc~· Dougl.ls, J ., us indivi1ual justice.) OPINION Mr. J ust icr Douyfos. An <tpplication ior bail pcnciing disposition of the applicant's !)Ctition fOI' ce1 ·tioral'i was denied by my Brother Whittaker O!l July 20, I!lGO. Application wa<; then made to me. In view of m · J;rothc~ Whittaker's denial I was molit i·eluctant to take cont:·ar~ aC'till1•. AC'cCl'dingly I asked tliat a r-esponse from tho Soliritoi· Genl'rd be rl:'questcd. In a letter to the Clerk • faled August 25, I !JGO, the Solicitor Genera l stated: ;,Jt ;., ~Y opinion that the petitioH and the recod pr.:>~ent !'l•bstantial questions of :·av.:. For that reason, and in view of the fact that the petitioner has beon incarcerated since \June, 1959, thl< Gcvernment c!oes not oppose the granting of bail in the suggesU-<~ amount of $5,000." My stud~ of the case lends me to the same conclusion. The :ssuc:: inc one 1-11 which tht:rc may wdl 1.Jll a jiviliion of "iews when the merits arc real'..hed. But that is one test of whether substantial questions 2re presented. S~c Herzog v United States, 99 I. eJ 1299, 75 S Ct 349. Accordingly I fix bail in the amount of a $5,000 bond to be approved by the U.S. District Court for the District of Nor th Dakota or a judge thereof. Upon such approval this b•,nd is to be filed with the Clerk of that Court. A la;vycr who was trying a case asked the witness, "Now, Mr. J unes, did you or did you not, on the date in question or at any other time previously or subsequently, say or even intimate to the defendant, or anyone else, whether friend or acquaintance or in fact a st ranger, that the statement imputed to you, whether just or unjust :\nd denied by the plaintiff w;s a matter of no mor,1ent 01· otherwise? Answer - did ycu or did you not?" The witness pondered for a while and .then said' "Did I or did I not wl:at ?" Coronet, Fehnmry 1961. ' Novembt<r 30, 1961 LAWYERS IJOUHNAL Page 329
Date: 1961
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