The petition was later referred to McNair by the Honorable John Meade for clarification as to whether he had counsel, since the Judge would not hear the petition without counsel.
On April 14, 1969 McNair filed a petition requesting a trial within thirty days, or in the alternative, release on his own recognizance pending trial. On June 3 this petition was dismissed without prejudice and referred to the Voluntary Defender for investigation.
McNair then filed in this Court a petition for reduction of bail which was denied on July 10, 1969.
McNair then filed the present petition in this Court on August 28, 1969 in the form of a lawsuit against the District Attorney. In the present petition he alleges that he is being denied his right to a fair and speedy trial, that he is being denied "bail within his means", and that he is suing in this Court for a "nol pross" as relief.
As a first step in an attempt to achieve some semblance of order from the chaos evident in this case, the Court will treat the petition as one seeking habeas corpus relief.
It should be noted that in response to the present petition, this Court, on August 28, 1969, the day of receipt of the petition, issued an order directing the Commonwealth to show cause, within thirty days, as to why petitioner had not received a speedy trial. The Commonwealth's reply asked that the petition be denied on the ground that there had not been a long delay, that petitioner had failed to exhaust state court remedies, and that petitioner's trial was imminent and would begin September 26, 1969.
This Court, however, regards the delay as substantial, and, even assuming that exhaustion requirements are as strict prior to trial as when a relator is held "pursuant to a state court judgment", believes the present circumstances render state process ineffective to protect the rights of the present petitioner. 28 U.S.C.A. § 2254. Consequently, the Court requested that District Attorney's Office to notify it on September 26th when the petitioner's trial had actually begun. However, the Court was subsequently informed that the trial had not begun on September 26th, though petitioner's attorney was prepared to proceed. The Court was assured, however, by the District Attorney's Office, that the trial would definitely commence on October 16, 1969, and that the Court would be informed when the trial had begun. However, the Court has again been notified by the District Attorney and petitioner's counsel that petitioner's trial has been postponed, though petitioner's counsel was once again prepared to proceed.
In light of the substantial delay in the trial of petitioner's case and the other circumstances related above, an order will be entered granting the petition for habeas corpus if relator is not brought to trial within 45 days.
And it is so ordered.
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