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Barry v. Bergen County Probation Dept.

October 22, 1997

MICHAEL C. BARRY

v.

BERGEN COUNTY PROBATION DEPARTMENT, HACKENSACK, N.J.; PETER VERNIERO, ATTORNEY GENERAL OF NEW JERSEY, APPELLANTS



On Appeal from the United States District Court for the District of New Jersey

(D.C. No. 94-cv-03258)

BEFORE: STAPLETON, GREENBERG and COWEN, Circuit Judges

COWEN, Circuit Judge.

Filed October 22, 1997

Argued August 12, 1997

(Filed October 22, 1997)

OPINION OF THE COURT

This is an appeal from a judgment of the district court, dated August 7, 1996, granting petitioner-appellee Michael C. Barry's petition for a writ of habeas corpus. The district court held that it had subject matter jurisdiction to consider Barry's petition because his community service obligation constituted custody for purposes of habeas corpus review pursuant to 28 U.S.C. Section(s) 2254(a). The district court further held that, because the media coverage at issue had the potential to prejudice one or more jurors, the trial judge's failure to voir dire the jurors violated Barry's Sixth Amendment right to a fair trial. In addition to granting the petition, the district court ordered that Barry be released from his community service obligation. The district court made no provision for the State to retry Barry.

Respondents-appellants, the Bergen County Probation Department and Peter Verniero, the Attorney General of New Jersey (collectively, "the State"), contend that the district court erred in its determination that Barry was "in custody" for habeas corpus purposes and that the media coverage potentially prejudiced the jury. Moreover, the State argues that the district court erred by releasing Barry from his community service sentence without providing the State with an opportunity to retry him.

We hold that Barry was "in custody" for purposes of 28 U.S.C. Section(s) 2254(a) when he was resentenced in 1993 to 500 hours of community service. We further hold that the media coverage at issue did not have the potential to prejudice the jury. Accordingly, the judgment will be reversed, and we need not consider whether the district court erred by failing to provide the State with an opportunity for retrial.

I.

Dr. Michael Barry served as medical director of the Fort Lee Stress Relief Clinic. During its brief period of operation, 845 patients generated 2,429 visits and 2,337 prescriptions for the drug Quaalude. Nearly every prescription was for forty-five tablets, regardless of a patient's prior history.

Barry and a number of co-defendants were indicted by the State of New Jersey on: sixteen counts of dispensing the drug Quaalude not in good faith in the course of professional medical practice, in violation of N.J. STAT. ANN. Section(s) 24:21-9, :21-15 (West 1997), :21-19(a)(1), :21-19(b)(3) (repealed by L.1987, c. 106, Section(s) 25, operative July 9, 1987) (West 1997), and 2C:2-6 (West 1995); three counts of dispensing Quaalude and Diazepam, in violation of those same statutes; one count of maintaining a drug resort, in violation of N.J. STAT. ANN. Section(s) 24:21-21(a)(6), :21-21(b) (West 1997), and 2C:2-6; and one count of conspiracy to dispense the drug Quaalude not in good faith in the course of professional medical practice and to maintain a drug resort, in violation of N.J. STAT. ANN. Section(s) 24:21-24(a) (West 1997), and 2C:5-2 (West 1995). The trial, which lasted almost five months, commenced on January 4, 1982.

On February 18, 1982, the trial court became aware of two newspaper articles that appeared in the Herald Dispatch. The court admonished the jury:

There are just a few things I must call to your attention, and one of them is that there have been articles in the newspaper and they have been called to my attention, about this case.

It's also been called to my attention that the articles are not accurate. I am not critical of the articles in any sense, that's none of my business what's in the article, but it is our business to ask you not to read them. Remember I said at the outset that you as the jury in this case are the judges. You will be the judges in the trial. You'll be the sole and final judges in this trial and you'll have to decide this case based solely on the evidence that you see and you hear that takes place in this courtroom. I will continue to ask you, and if I don't forget, I will be telling you this every day, I will remind you not to read the newspapers. If you see anything anywhere close that has anything to do with this case, don't read it, don't let anybody attempt to discuss the case with you, don't discuss the case even among yourselves. Keep an open mind until you heard [sic] all sides, the entire case, not just the State's case, but the defendants' side and the law as given by the Court at the end of the trial, but as I said, there are articles, some of it is on the front page here, and there may be something on the TV. App. at 138-39. <--text-->

As the trial continued, the court repeatedly cautioned the jury to refrain from discussing the case with anyone or reading anything in the newspapers even tangentially related to the case. On March 17, 1982, the trial court instructed the jury at the conclusion of the proceedings that day:

All right. I think it's a good time to recess.

But before we do, members of the jury, you will recall from time to time I have been cautioning the jury not to discuss the case, and not to read anything that might in any way have any effect on you as, as it pertains to this case. And I would just remind you once again, would you please continue to follow those same instructions.

And, I think more and more now you can realize the importance of what I said, that ultimately you will have to decide this case solely and you will have to solely on the evidence that you see and you hear in this courtroom. And, if you read something elsewhere or if someone talks to you or even if you talk among yourselves, it would be very, very hard for you to remember whether you heard it in the courtroom or you read it somewhere or whether it was evidence in this case.

So, it is -- nor if you should see something, don't read it. If someone wants to talk to you, don't let them talk to you about the case. And, you will remember that this has to do with this case and this was the evidence in this case because some [sic] have to decide it solely on the evidence that you see and hear in the courtroom. App. at 145-46.

On April 20, 1982, approximately two weeks before the jury received the case, the trial court issued the following admonition to the jury regarding an upcoming television program:

There is another thing that I must call to your attention, also. It's come to my attention that a television program is to be televised on Channel 4, NBC, on Tuesday evening, that's today, which may address topics which have been either examined or referred to here incourt [sic] . . . . I'm not going to tell you about a program and then tell you not to look at it, but I have to do it that way, because you might come on it by chance. So, the best way to do it is to tell you about it and then tell you not to look at it, whether someone reminds you and says you know, I saw something, tell them not to talk about it. So, I'm going to ask you not to view the program, and further, I would ask, if possible, that the program not be watched by other members of your family, if possible, or if that's not done, that you not discuss or be present during any discussion with either your family or friends . . . . App. at 156-57. <--text-->

On May 13, 1982, the trial judge, at the conclusion of the entire case, charged the jury as follows:

Each defendant is entitled to have his case determined from his or her own acts and statements and the other evidence in the case which may be applicable to him or to her. And you're here to determine the guilt or innocence of the accused from the evidence before you and you are not called upon to return a verdict as to the guilt or innocence of any other person or persons. App. at 172. <--text-->

In the morning of May 14, 1982, during jury deliberations, counsel for one of Barry's co-defendants brought to the court's attention that a newscast that had been broadcast on WINS radio the previous evening concerned hearings in Washington on methaqualone usage. A recording of the story was transcribed for the record:

"At a Senate Labor and Human Resources Subcommittee hearing, Republican Senator Paula Hawkins says 90% of the sleeping pills also called the love drug is [sic] supplied illegally to young people in a two billion dollar a year business."

Now the recording has the following statement from Senator Hawkins'[s] testimony, "Under the guise of affording legitimate medical services these clinics provide a ready and accessible source of pharmaceutical Quaaludes, primarily for white collar young adults. The procedure is apparently quite simple. Bring between seventy five [sic] and two hundred dollars in cash, fill out a brief personal history form, claim personal or job problems and trade the cash for a prescription of thirty to forty-five Quaaludes."

The broadcast thencontinues [sic], "Now Senator Hawkins has introduced a bill to ban Quaaludes as a so-called controlled substance. Hawkins says at least 130 people died from the drug last year. The Drug Enforcement Administration says Quaaludes [are] second in popularity among young people only to marijuana." App. at 201.

Counsel also brought to the court's attention an article in that day's Bergen Record entitled "Federal Drug Agency Targets Stress Relief Clinics." According to counsel, the articles concerned stress clinics and how they operate in a manner so that a drug can be given out to young people who are then abusers. They refer to people coming in paying $125 for a fifteen to twenty minute visit to a stress clinic in order to receive Quaalude prescriptions.

App. at 178. The Record has the largest circulation in Bergen County. Counsel then requested that the court voir dire and sequester the jurors and the court instruct them not to read that day's issue of the Bergen ...


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