Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Petitioner and Joseph Grillo had been convicted in a New Jersey state court of first degree murder arising out of an armed robbery. Since there had been no recommendation for mercy by the jury, under the state law the convictions carried mandatory death sentences.*fn1 A third participant had also been found guilty of murder but as to him a jury recommendation of mercy had resulted in a life sentence.
On the particular phase of the case with which we are here concerned there had been an application to the state court for a new trial which had been denied. The state supreme court affirmed that decision on June 28, 1954.*fn2 Some time thereafter execution of appellant and Grillo was set for the week of August 15, 1954. During the interval the attorneys who had represented them withdrew from such representation. Appellant's present attorneys came into the matter August 12, 1954, a Thursday. On the next day on behalf of appellant they made three separate applications to Justices Black, Jackson and Clark for a stay of execution pending application for certiorari. They were advised Saturday of the refusal of the applications. Sunday intervened and the following day, Monday, they appeared before the district judge on duty at Newark seeking an order directing appellee to show cause why a writ of habeas corpus should not be granted.*fn3 At that time while a definite day and time for the executions had not as yet been announced counsel expected that they might occur the next day, Tuesday. Under the circumstances the coming into the federal court was entirely proper. To wait until steps could be taken to exhaust the remedy of a formal petition for certiorari would have rendered the federal habeas corpus "process ineffective to protect the rights of the prisoner" as is stated in the alternative clause of the governing statute, 28 U.S.C. § 2254. Appellant and Grillo would have both been dead long since. See Thomas v. Teets, 9 Cir., 1953, 205 F.2d 236, certiorari denied 346 U.S. 910, 74 S. Ct. 240; United States ex rel. Jackson v. Ruthazer, 2 Cir., 1950, 181 F.2d 588, certiorari denied 339 U.S. 980, 70 S. Ct. 1027, 94 L. Ed. 1384.
There had been no prior application for habeas corpus to the district court on the grounds alleged in the petition. Those grounds were that a trial juror's fraudulent concealment on voir dire of allegedly disqualifying facts and his untruthful answers with respect thereto indicated such bias and prejudice on his part that DeVita was deprived of a fair trial by an impartial jury contrary to the Fourteenth Amendment of the Federal Constitution. The facts so concealed or falsified were stated to be that the juror had himself been a victim of a strikingly similar armed robbery within a year of the trial and that as a result he knew a number of detectives who it is strongly inferred were from the same specialized field of criminal investigation in the municipality which had been the locale of both offenses.
While, as will be seen, examination of the merits of petitioner's allegations is not now indicated*fn4 it should be noted that a primary defense trial objective for all three defendants had been to obtain a jury recommendation of life imprisonment.
As has been stated the petition was filed in the district court August 16, 1954 and application for the writ or a rule to show cause why it should not be issued was made to the sitting district judge that same day. After presentation by counsel the district judge declared a recess. That same afternoon he returned to the bench and read his written decision. In it he stated that the court conceived the Supreme Court opinion in Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469, "to be the leading case on the problem with which the court is presented now, * * *." He then said:
"In the Brown v. Allen case the Supreme Court said, 'Application to district courts on grounds determined adversely to the applicant by the state court should result in a refusal of the writ without more if the court is satisfied by the record that the state process has given fair consideration to the issues and the offered evidence and has resulted in a satisfactory conclusion.'"
"Now, the only record which the Court has before it now is the opinion which Mr. Glauberman was good enough to give me, written by Justice Burling."
The court concluded from the above that:
"* * * my primary consideration in this application, Mr. Glauberman and Mr. Alper, is to see whether state process has given fair consideration to the issues presented here, * * *."
Thereafter the district judge for four typewritten pages quoted from the state court opinion and, quite obviously convinced by that language, stated:
"So it is quite apparent that the court did give ample and full consideration to the question which you now raise here, and under Brown versus Allen it is clear ...