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FREEDOMWAYS
SECOND QUARTER 1972

murder, arson, possession of weapons, and various other crimes," as listed in a legal statement by Assistant D.A. Joseph Phillips. I find it interesting that "conspiracy" is listed as a separate category, rather than conspiracy to do something, as if to imply there is something inherently criminal in the very word.
     The six lawyers for the Panther 13, on behalf of their clients, during the pre-trial portion of that two-year prosecution, filed a suit in the Appellate Division to have Justice John Murtagh removed from trying that case. Their claim was that Murtagh had been specifically selected by Hogan to act on all matters-bail, arraignment, motions, as well as the trial itself-and that in view of the significance this could have in terms of gaining impartial treatment, plus Murtagh's reputation as a hard judge, such as appointment was an infringement of due process by facilitating the prosecution's case, giving it an extra advantage. Murtagh and Hogan countered by saying that Murtagh's selection to preside over all matters was for purposes of expediency.
     Initially, when the issue was brought up in the courtroom, Murtagh denied it flatly, stating his assignment to all matters that pertained to the Panther 13 case had been made by the Appellate Division. Sanford Katz, one of the defense attorneys, then wrote the Confidential Clerk of the Appellate Division, Joseph L. Lucchi, asking if Murtagh had been assigned by that court. Lucchi responded "I find no such order." Lucchi was again to write Katz saying that "I neither find any order that he was not assigned." Which reads as sheer nonsense, but does serve as an excellent example of the psychology that reigns in much of the courts, funneled through a host of bureaucratic functionaries who adopt such double-talk as their credo.
   There was also the question of a conference between Hogan and Saul Streit, administrative justice of the Supreme Court, who administers that court system, and though not nominally vested with appointment of judges, according to the Clerk's office of the Appellate Division, by what was revealed in the Panther 13's suit, does apparently exercise some influence in that area.
     In Frank Hogan's rebuttal affidavit he talks about a meeting between Streit and himself during which Murtagh's assignment to the Panther case was discussed. "In October 1968 I had occasion to discuss the case load in our criminal parts with Administrative Justice Saul S. Streit....In the course of my discussion with Judge Streit I also suggested to him that he continue Justice Murtagh's assignment to the criminal part so that he would be available to conduct expeditiously the pre-trial hearings and the trial of the case." Hogan had 

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INSIDE THE SYSTEM                   COOPER

already moved the case against the Panther 13 before Judge Murtagh.
     Saul Streit's answer reads almost as a carbon copy of Hogan's. "The District Attorney suggested that the administration of justice would be expedited if I directed a single judge to take charge of all proceedings in relation to the case. The D.A. requested that I continue Justice Murtagh's assignment to the criminal term so that he could expeditiously complete the motions and hearings which were pending before him and so he would be able to supervise all of the proceedings."
     The Appellate Division, in its review of the suit, answered "since the defense is not cognizant of the Appellate Division rules, and since their affidavits contain blatant misstatements of fact, the motion should be denied." Which it was. It further states the suit was "inter-mediate... not immediately applicable to the Court of Appeals"- meaning that the fundamental question of having an impartial judge was not in itself relevant, but might only be relevant as a side issue if a conviction resulted from the prosecution of the Panther 13, and could at the time be referred to the Court of Appeals.
   In that connection it is interesting to note a statement by Justice Jackson of the U.S. Supreme Court, which was part of the suit, filed by the New York City Civil Liberties Union which joined in the action to remove Judge Murtagh: "A genuinely impartial hearing, conducted with critical detachment, is psychologically improbable if not impossible when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible." That "presiding officer" would apply to Hogan, Streit and Murtagh, all of whom were acting in unity, but chiefly to Hogan, since he was the impetus for the actions of the other two. 
    If an analogy might be allowed between the expeditious conduct with which the courts sought to conduct the trial of the Panther 13, and their attitude now toward the Harlem Four, a reversal of tactics is being employed. Since the declaration of a mis-trail January 27 which concluded their second retrial-jurors were hung 7 to 5 in favor of acquittal- the Harlem Four and their attorneys have been in court some four times seeking answers to motions for dismissal of the indictment, reduction of bail, and an evidentiary hearing. In those four instances, the case has been passed around to various judges- Justices Irwin Davidson and Hilda Schwartz- each of whom has deferred action since they say they are unfamiliar with the case, or they were requested by Justice Martinis- who entertained the original motions, alone and presided at the last retrial- not to do anything. One of those motions, bail reduction, was acted upon and was reduced

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