rather than Federal Court where State criminal proceedings are involved. Certainly, controls over the courtroom atmosphere and the conduct of the participants in the imminent trial of petitioner should be sought from the State Court. And, if it is petitioner's contention that the inherent nature of the past publicity relative to his impending trial has rendered a fair trial impossible at present, he should present this contention and make an appropriate request for a change of venue to the State Court, something he has not yet seen fit to do.
Petitioner's contention, if proven, that ex-parte consultation between the prosecution and certain Judges of the Court of Common Pleas have been to the prejudice of petitioner, is not without remedy in the State Court. Petitioner can seek the supplantation of the District Attorney by a prosecutor from another county, if the right to this extreme relief can be adequately demonstrated. Likewise, if necessary, disqualification of the challenged jurists may be sought. The Court of Common Pleas of Allegheny County is a multiple complement court with six judges sitting in the Criminal Division. In addition, visiting judges from surrounding counties are currently sitting upon twenty per cent of the cases in the Criminal Division.
Petitioner also may raise the issue of the composition of the jury by utilizing the Pennsylvania procedure for challenging the array of jurors at trial. With this procedure available, there is no basis for a prediction by this Court that the Court of Common Pleas of Allegheny County and Superior and Supreme Courts of Pennsylvania will not fully vindicate the federal right of petitioner to have a jury constituted in accordance with federal constitutional standards. Where, as here, there exists the opportunity to test the representative nature of the jury in the State court, the federal courts are forbidden to prejudge this issue while it yet remains open for determination by the state court. City of Greenwood v. Peacock, supra, Georgia v. Rachel, supra ; Georgia v. Birdsong et al., 428 F.2d 1223 (5th Cir. 1970).
If, having presented to the Court of Common Pleas all constitutional questions asserted herein, petitioner finds that he has not received due consideration therein, he, of course, has a remedy of appeal to the State appellate courts and, ultimately, to the Supreme Court of the United States. Also available is his right subsequent to trial and the exhaustion of his State remedies to seek a writ of habeas corpus in the Federal District Court.
Assuming as we must that all of the facts alleged in the Petition are true, the relief requested herein must be denied and the cause remanded to the Court of Common Pleas of Allegheny County, Pennsylvania, as having been improvidently removed from the State jurisdiction to the Federal District Court. An appropriate Order is entered.
Now, this 17th day of June, 1970, treating the Motion to Dismiss filed by the District Attorney of Allegheny County as a motion to remand, it is ordered that said Motion be and the same is hereby granted, and all relief requested in the Petition for Removal is hereby denied.
It is further ordered that the Clerk of Court return to the Clerk of Courts of Allegheny County, Pennsylvania, all State records previously forwarded to this Court relative to this proceeding.
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