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CHESIMARD v. KUHLTHAU

February 7, 1974

Joanne Deborah CHESIMARD and Clark Edward Squire, Petitioners,
v.
Hon. John S. KUHLTHAU, County Prosecutor, Middlesex County, Respondent


Stern, District Judge.


The opinion of the court was delivered by: STERN

This is an action, pursuant to 28 United States Code, Section 1443, to remove a state criminal prosecution from the Superior Court of Morris County to the United States District Court.

In May of 1973, a State Grand Jury sitting in Middlesex County returned an eight-count indictment against the defendants, here petitioners, charging them, inter alia, with murder, felony murder, and assault with intent to kill, upon the allegation that these defendants shot and killed a policeman and a civilian, and shot and wounded another policeman in the County of Middlesex.

 The matter was before the Superior Court of Middlesex County until the defendants moved, pursuant to N.J.S.A. 2A:76-1, *fn1" "for a trial before a foreign jury, preferably in the County of Essex or Hudson or, alternatively, for a change of venue."

 The assignment judge of Middlesex County granted the defendant-petitioners' motion for a foreign jury but refused to give them their stated preference to be tried by a jury to be drawn from either Hudson or Essex County. Instead he determined that a jury should be drawn from the citizens of Morris County, and thereupon transferred the case from Middlesex to Morris County for the purpose of selecting a foreign jury.

 Pursuant to this order, jury selection began in Morris County on January 2, 1974. Twenty-one days later, the defendant served and filed with the Clerk of the United States District Court, the Clerk of the Superior Court of Morris County and with the prosecuting attorney, an unverified petition seeking removal of this prosecution from the courts of New Jersey to the courts of the United States pursuant to the provision of 28 U.S.C. Sec. 1443. *fn2"

 In essence, petitioners, who are black, allege that their federally-protected rights are being violated by the prosecution of them in Morris County, which has a significantly smaller black population than either the County of Middlesex, the County of Essex, or the County of Hudson, and seek the prosecution to continue only in the United States District Court.

 In addition, petitioners allege that their federally-protected rights are being violated by the application of R. 1:8-3(d), *fn3" which automatically decreases the number of challenges permitted to the defendants from ten each to five each, after a cause has been transferred from one county to another for either a change of venue or for the selection of a foreign jury.

 The court parenthetically notes that the operation of that statute also automatically decreases the number of challenges which would otherwise be allocated to the prosecution.

 Promptly after the service of the petition for removal, the office of the Prosecutor of Middlesex County filed a petition for remand to the State Court.

 Pursuant to the provisions of 28 U.S.C. Sec. 1446, *fn4" upon the filing of a "verified" petition for removal "before trial" by a defendant in a State criminal prosecution, the State Court loses jurisdiction over the prosecution and jurisdiction lies only with the United States Court unless and until it is remanded back to the State Court. United States ex rel. Echevarria v. Silberglitt, 441 F.2d 225 (2nd Cir. 1971).

 28 U.S.C. Sec. 1446(a) requires that the petition be verified; that it be served "together with a copy of all process, pleadings and orders" previously served upon the defendant. In addition, subsection (c) requires that the petition be filed "before trial".

 The petition in this case is neither verified, nor is it accompanied by all of the previous orders and pleadings which had been served upon the defendants, and it is questionable as to whether, in fact, the original petition has been filed "before trial".

 Under the authority of Echevarria, supra, this Court will not hold the petitioners to the failure either to verify or to document the petition. It will take the petition as proper insofar as these requirements are concerned.

 The timeliness of the filing of the petition is an altogether different matter. These defendants were indicted in May of 1973. Their case was transferred to Morris County upon their own motion in October of 1973. The selection of the jury began on January 2, 1974, and was, as of January 22, 1974, in ...


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