Senator HRUSKA. It was doing no such thing. It was a granting of the writ. It was the granting of the writ, and the purpose of the writ is to get them out of jail and they got out of jail. Mr. ROSENBERGER. They got out of jail. Senator HRUSKA. It had no bearing upon any conviction by the city court, and could not have had. Mr. ROSENBERGER. But in the order that you read, sir, it directed a hearing on the merits. Senator HRUSKA. That was to be a hearing on the merits of the writ. Well, you had your opportunity. If that procedure was wrong you had a written invitation to go to Judge Carswell's court, and he was acting under the mandate of the circuit court. For some reason you did not appeal it and now you resort apparently to the word "circumvention." Is it for the purpose of covering something that you did not do that you should have done? Could that be a possible explanation of the use of the word "circumvention" instead of violating? Mr. ROSENBERGER. No, sir. Senator HRUSKA. It would not? Mr. ROSENBERGER. No, sir. Senator HRUSKA. Then why did you not go and allege to the judge that the order was circumvented and you wanted it put on record so you could appeal therefrom? Mr. ROSENBERGER. Sir, once they were discharged, we had no longer any standing to bring any writ. Senator HRUSKA. Notwithstanding that written invitation to come back to the Federal court? Mr. ROSENBERGER. Yes, sir, Senator HRUSKA. Thank you. The CHAIRMAN. Any questions? Senator MATHIAS. Mr. Chairman, the witness indicated that he heard a conversation between Judge Carswell and the city attorney. Mr. ROSENBERGER. Yes, sir. Senator MATHIAS. Who was present during that conversation? Senator MATHIAS. Just the three of you? Mr. ROSENBERGER. The three of us; yes, sir. Senator MATHIAS. And were the other two parties to that conversation aware that you were hearing what they were saying? Mr. ROSENBERGER. Oh, yes, sir; I am quite certain they were. I was in the room. Senator MATHIAS. And what was said was in your presence and intended for your ears as well as for anybody else's ears? Mr. ROSENBERGER. Yes, sir; since Mr. Rhodes then asked me to make that application. Senator MATHIAS. And no others were present at all? Mr. ROSENBERGER. Not that I recollect, sir. Senator BURDICK. Mr. Chairman, I did not appear in the hearing room until you were well into your testimony, but I would like to get a few things straight here. Are you contending that the Carswell order of August 6 is not consistent with the circuit court? Mr. ROSENBERGER. No, sir. The order of August 6 is consistent. Senator BURDICK. Is consistent? Mr. ROSENBERGER. Yes, sir. Senator BURDICK. All right. Getting to the meat of the order it says that "If such State court fails either to order the discharge of such petitioners from custody or release from custody upon the nominal bail within 3 days of date of filing," and so forth. Let us take the first part "If the State court fails to order discharge of such petitioner." Mr. ROSENBERGER. Yes, sir. Senator BURDICK. This order is consistent with the circuit court order? Mr. ROSENBERGER. The order from which you are reading; yes, sir. Senator BURDICK. It is consistent? Mr. ROSENBERGER. Yes, sir. Senator BURDICK. And this is part of the order. Was the petitioner discharged? Mr. ROSENBERGER. Not by the State court to which the habeas corpus was filed but by the city court. Senator BURDICK. They were discharged? Mr. ROSENBERGER. They were discharged. Senator BURDICK. Upon the presentation of this order? Mr. ROSENBERGER. They were discharged. Senator BURDICK. Immediately? Mr. ROSENBERGER. The next day, yes. Senator BURDICK. And they were discharged in conformance with this order? Mr. ROSENBERGER. No, sir; not in conformance with that order. In conformance with that order they would have been discharged under a writ of habeas corpus. They were not discharged under a writ of habeas corpus. Senator BURDICK. Let me read it again. The order says that "If the State court fails either to order the discharge of such petitioner" and so forth. Did the State court discharge the peitioners? Mr. ROSENBERGER. The city court did, yes, sir, which is the StateSenator BURDICK. The city court had possession of the petitioners? Mr. ROSENBERGER. Of the petitioners; yes, sir. Senator BURDICK. And after this order was issued, they were discharged? Mr. ROSENBERGER. Yes, sir. Senator BURDICK. That is all. Senator MATHIAS. Mr. Chairman, one further question. In some instances a writ of habeas corpus is granted purely on a mechanical basis. Some act was or was not done, and therefore a man is entitled to be released. There is no factual or legal background beyond the narrow grounds set out in the petition for the writ? Mr. ROSENBERGER. Yes, sir. Senator MATHIAS. Is it your contention that in this case, however, that it was not only the operational aspect of the physical release, but that the mere granting of the writ would also establish a legal principle which was really at the basis of this whole proceeding? Mr. ROSENBERGER. Yes, sir. Senator MATHIAS. And is it further your contention as a lawyer that if this second aspect of substantive principle, which was at the root of the whole case, had been established by granting the writ, that this would have had a substantial effect on the criminal record that had been established by the city court in the first place? Mr. ROSENBERGER. Yes, sir. It would have operated to vindicate the position of the defendants. Senator MATHIAS. You feel that this would have been the inevitable consequence of the granting of the writ on the original basis? Mr. ROSENBERGER. No question about it, sir, Senator THURMOND. Mr. Chairman, I just have one question. Senator THURMOND. Would you mind telling us who employed you and who paid you and paid your expenses in connection with this case? Mr. ROSENBERGER. Sir, I was not paid. My expenses, that is my air fare to Tallahassee from New York and back again, was paid by the Lawyers' Constitutional Defense Committee of the American Civil Liberties Union. Senator THURMOND. Thank you. The CHAIRMAN. Any further questions? Senator FONG. The city courts stated that the defendants be released without giving any opinion as to why they should be released? Mr. ROSENBERGER. Yes, sir. Senator FONG. So if the city court took that action defendants are released without stating why they were released you would not have gotten what you wanted? Mr. ROSENBERGER. In this case it went further. The city judge at the end of his statement said "Now you have what you came for. You have a permanent criminal record." That is what he stated to those clergymen in his court that day. Senator HRUSKA. Mr. Chairman, I think it would serve for purposes of clarity and reference if there were included in the record the order of Judge Carswell on August 3, 1964, in which he denied the writ of habeas corpus, and that part of his order, Mr. Chairman, was affirmed and confirmed by the Circuit Court on August 5, and then on August 5 the Circuit Court directed the District Court to modify its order. A copy of that order should really appear in the record so that all of those three documents would tell the whole story. The CHAIRMAN. They will be admitted. (The documents referred to follow :) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, TALLAHASSEE DIVISION T (Tallahassee Civil Action No. 1616) ISRAEL DRESNER, AUSTIN M. WARMER, ROBERT M. BROWN, PETTY D. MCKINNEY, MARTIN FREEDMAN, ARTHUR L. HARDGE, ROBERT J. STONE, J. W. COLLIER, JR., PETITIONERS VS. FRANK STOUTAMIRE, AS CHIEF OF POLICE, CITY OF TALLAHASSEE, FLORIDA, RESPONDENT. ORDER This cause came on to be heard on petition for writ of habeas corpus and counsel for the respective parties being present and heard and the grounds for the petition having been set forth in accordance with Rule 15 of this District and heard on oral argument, and counsel for respondent having been heard in opposition, and it appearing that these petitioners have not sought to avail themselves of relief in the courts of Florida as provided in law and made explicit in this same litigation by the Supreme Court of the United States, it is, upon consideration, hereby Ordered: 1. Relief sought by petitioners is denied at this time without prejudice to petitioners, or any of them, to proceed for relief in the appropriate court or courts of the State of Florida either by petition for a writ of habeas corpus or under the ambit of Criminal Procedure Rule No. 1 of the Supreme Court of Florida. 2. The Court finds that it has jurisdiction of this cause and retains jurisdiction for a period of thirty (30) days during which time petitioners are afforded opportunity to proceed as hereinabove provided. Done and ordered in Chambers at Tallahassee this 3rd day of August 1964. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT V. FRANK STOUTAMIRE, AS CHIEF OF POLICE, CITY OF TALLAHASSEE, FLORIDA WAYNE C. HARTMIRE V. FRANK STOUTAMIRE, AS CHIEF OF POLICE, CITY OF TALLAHASSEE, FLORIDA Per Curiam: The District Court is directed to modify its order so as to provide as to each petitioner that if such petitioner makes application for habeas corpus to a state court of competent jurisdiction, and if such state court fails either to order the discharge of such petitioner from custody or his release from custody upon nominal bail within three (3) days from the date of filing of such application any further delay will rendre state corrective process ineffective to protect the rights of such petitioner, and the District Court will upon the request of such petitioner forthwith proceed to a hearing of the application on its merits, and further that District Court will retain jurisdiction until the termination of any such state court habeas corpus proceeding, and if such petitioner is denied relief or the proceeding unreasonably delayed, the District Court will upon request of such petitioner proceed to a hearing on the merits. With the modification so directed, the judgment of the District Court is Affirmed. This order shall serve as the mandate of this Court and is issued forthwith. RICHARD T. RIVES, U.S. Circuit Judge. WARREN L. JONES, U.S. Circuit Judge. BRYAN SIMPSON, U.S. District Judge. Attest a true copy issued by the mandate of the Court this August 5th, 1964. RICHARD T. RIVES, U.S. Circuit Judge. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, TALLAHASSEE DIVISION (Tallahassee Civil Action No. 1016) ISRAEL DRESNER, AUSTIN M. WARMER, ROBERT M. BROWN, PETTY D. MCKINNEY, MARTIN FREEDMAN, ARTHUR L. HARDGE, ROBERT J. STONE, J. W. COLLIER, Jr., PETITIONERS, VS. FRANK STOUTAMIRE, AS CHIEF OF POLICE, CITY OF TALLLAHASSEE, FLORIDA, RESPONDENT. (Tallahassee Civil Action No. 1017) WAYNE C. HARTMIRE, PETITIONER, VS. FRANK STOUAMIRE, RESPONDENT ORDER This Court having been duly advised that the United States Court of Appeals for the Fifth Circuit on August 5, 1964 affirmed the judgments of this Court entered in the above captioned cases respectively by its order dated August 3, 1964 in Tallahassee Civil Action 1016 and by its order dated August 4, 1964 in Tallahassee Civil Action No. 1017, and further directing that this Court modify said orders in certain particulars, in conformity therewith, it is hereby Ordered that previous orders of this Court dated August 3, 1964 in Tallahassee Civil Action No. 1016 and August 4, 1964 in Tallahassee Civil Action No. 1017 be and they are hereby modified so as to provide as to each petitioner that if such petitioner makes application for habeas corpus to a state court of competent jurisdiction, and if such state court fails either to order the discharge of such petitioner from custody or his release from custody upon nominal bail within three (3) days from the date of filing of such application, that any further delay will render state corrective process ineffective to protect the rights of such petitioner; and this Court will upon the request of any such petitioner forthwith proceed to a hearing of the application on its merits, and further that this Court retains jurisdiction until the termination of any such state court habeas corpus proceeding, and if such petitioner is denied relief or the proceeding unreasonably delayed, this Court will upon request of such petitioner proceed to a hearing on the merits. Done and ordered in Chambers at Tallahassee this 6th day of August 1964. Senator TYDINGS. I would like to read into the record at this time in the case of Lefton v. The City of Hattiesburg, cited as 333 Fed. 2d 280, from page 285, paragraph 2. The decision which was handed down by the U.S. Court of Appeals, Fifth Circuit on June 5, 1964. The court states, and I shall read that paragraph in its entirety: "Filing fees are not to be collected in connection with criminal removal petitions. Such fees are regulated by statute. The comparison of the present statute with its predecessor shows that there is now no authority for the clerk to charge fees in such proceedings." The CHAIRMAN. Any further questions? (No response.) The CHAIRMAN. Mr. Knopf. Do you solemnly swear that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God? 40-399-70- -12 |