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,
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 continuous progress until this petition was filed and proceedings stopped.
While it is clear that jeopardy has not yet attached, because no juror and no witness has yet been sworn, it is not at all clear that this petition has been timely filed "before trial". The question is whether the phrase "before trial", for purposes of removal under 28 U.S.C. 1446(c), is to be construed to be the equivalent of "any time before jeopardy attaches in the State Court."
The petitioners herein had been indicted in May of 1973. On January 2, 1974, the case was moved for trial by the State. All parties were engaged in picking a jury for almost three weeks, when, on January 23, 1974, they removed the case to this Court, purporting to deprive the State Court of jurisdiction and thus halting all proceedings there upon their claim that the transfer of this matter in October of 1973, and the limiting of their challenges on or before January 2, 1974, had deprived them of some federally-protected rights.
This Court has not found any precedent which controls this precise factual situation. While there are criminal cases which have been removed at the very door of the State courthouse, even the very morning of the trial, see for example People v. Horelick, 424 F.2d 697 (2nd Cir. 1970), cert. denied 398 U.S. 939, 90 S. Ct. 1839, 26 L. Ed. 2d 273 (1970), this Court has found no case in which, as here, such a removal has been attempted after 128 veniremen have been questioned by both sides, two peremptory challenges have been exercised by the petitioners, and fourteen jurors, albeit unsworn, have been tentatively seated in the jury box.
The natural and desirable reluctance of federal courts to interfere in pending, much less on-going, State criminal prosecutions is not easily overcome. See Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1970), particularly Mr. Justice Black's language at p. 44, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, et seq. The interests of the United States in promoting rather than in derogating from the orderly litigation of matters within the State courts may not necessarily be achieved by a construction of 28 U.S.C. Sec. 1446 which would equate the requirement of timely filing of removal petitions to be any moment before a juror is sworn, rather than a construction which means that timely filing occurs and the State loses jurisdiction, if done before the case is actually moved for trial, or before the parties are actually engaged in the trial work, or before the jury selection process has actually begun, or perhaps, more precisely, in the words of Jifkins v. Sweetzer, 102 U.S. 177, 179, 26 L. Ed. 129 (1880), before the trial of a cause "has been in good faith begun."
As the Supreme Court held in the Removal Cases, 100 U.S. 457, 25 L. Ed. 593 (1879):
We agree that, as a general rule, the petition must be filed in a way that it may be said to have been in law presented to the court before the trial is in good faith entered upon. There may be exceptions to this rule; but we think it clear that Congress did not intend, by the expression "before trial", to allow a party to experiment on his case in the State court, and, if he met with unexpected difficulties, stop the proceedings, and take his suit to another tribunal.
100 U.S. 457, 459 (1879).
While both Jifkins v. Sweetzer, supra, and the Removal Cases, supra, are civil actions and are therefore not directly on point, I find that they are instructive as to the general issue of when a trial in the State court may be said to begin for purposes of determining the timeliness of a petition to remove the action to the Federal Court under 28 U.S.C. Sec. 1446.
In any event, the resolution of this question is not necessary to the determination of this controversy. Even assuming, arguendo, that this petition was timely filed, and that the State court did lose jurisdiction, this petition does not establish even a claim which would justify removal of this matter permanently from the State court to the United States Court under 28 U.S.C. Sec. 1443.
The dominant cases in the field of substantive prerequisites in civil rights removal petitions are Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966), where removal was granted, and City of Greenwood v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966), where removal was denied.
In Rachel, supra, petitioners were prosecuted under the Georgia criminal trespass statute for activities by them which were protected by federal statute aimed at prohibiting racial discrimination, i.e., for an activity protected by Section 201 of the Civil Rights Act of 1964. The court upheld removal on the basis of protecting the specific civil rights dealing with racial equality thus guaranteed, but with regard to petitioners' claims based on general rights the court held:
On the basis of the historical material that is available, we conclude that the phrase 'any law providing for . . . equal civil rights' must be construed to mean any law providing for specific civil rights stated in terms of racial equality. Thus, the defendants' broad contentions under the First Amendment and the Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under § 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that § 1443 demands.
384 U.S. 780, 792, 86 S. Ct. 1783, 1790, 16 L. Ed. 2d 925 (1966).
In Peacock, supra, petitioners were prosecuted under various state criminal charges after participating in civil rights activities in Mississippi. In denying their petition for removal the court held:
. . . The present case differs from Rachel in two significant respects. First, no federal law confers an absolute right on private citizens -- on civil rights advocates, on Negroes, or on anybody else -- to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman. Second, no federal law confers immunity from state prosecution on such charges.