another of the defendant Johnston brothers. Accordingly, I stated that I would deny the motions for an indefinite continuance of the two federal trials.
The Johnstons moved, in the alternative, to continue the federal trials until after the completion of the state homicide trials.
Their contention, as elaborated at the argument on May 23, was twofold: (1) that the massive adverse publicity already generated poses an even greater hazard for the state trial process than for the federal trial process, since the publicity relates primarily to the state homicide charges; and (2) that several weeks of federal trials this month and next would generate so much additional prejudicial reporting and commentary as geometrically to compound the problem the state courts will confront of according the defendants due process when the state trials are held a few months from now.
Since the courts of Pennsylvania can be counted on to be as zealous as federal courts to protect the due process rights of those accused of crime, it might reasonably be thought to follow that I should not alter the federal trial calendar for the purpose of protecting the state trial process so the more so since the publicity stimulated by the state trials may be expected to enhance the problem of insuring an impartial federal trial environment, if the federal trials are postponed until after the state trials. I would have found these considerations dispositive, and would have therefore denied the Johnstons' motion to continue the federal trials until after the state trials, if I felt that the prosecutorial interests of the two sovereigns, and the correlative due process claims of the defendants as against the two sovereigns, were of roughly equal magnitude. But that does not seem to me to be the case. The federal charges are serious ones, to be sure. But the state charges include some which are capital offenses. See 18 Pa.C.S. § 1311, 1978 Purdon's Pa.Legis.Serv.Pamph. No. 6, at 605. Under these circumstances, I am persuaded that the federal interest in prompt disposition of federal charges must yield to the far greater federal interest in helping to insure that state charges in which life may be at stake are tried with meticulous fidelity to the mandates of due process. Cf. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).
At the argument on May 23, I set June 25 as the date for hearings on two other defense motions: a motion to order three persons who may be government witnesses to undergo psychiatric examinations; and a motion to dismiss Indictment No. 78-304 on the ground that massive pre-indictment publicity may have biased the grand jury which returned it.
The three possible witnesses whom the defendants think ought to undergo psychiatric examinations are Leslie Dale, Ricky Mitchell, and Bruce Johnston, Jr. Via print and broadcast, Messrs. Dale and Mitchell have acquired substantial notoriety as alleged members of the so-called "Johnston gang."
Mr. Johnston, who is in the federal witness protection program, is a son of defendant Bruce Johnston, Sr.; there has been considerable press and broadcast reporting of an apparent attempt on the son's life, the instigation of which has been widely attributed to the father. The defendants base their requests for psychiatric examinations of these three potential witnesses on assertions that all are addicted to drugs, and that one is alcoholic and very seriously disturbed.
On reflection I have concluded that, since the federal trials are to be postponed until after the state trials in order to guard against the generation of additional publicity potentially prejudicial to the conduct of the state trials, the June 25 hearings ought likewise to be postponed: A hearing on the motion for psychiatric examinations might involve the summoning to the witness stand of one or more of the defendants and one or more of the three persons sought to be examined. Testimony, assuming its propriety and admissibility, from any of these persons would almost certainly produce publicity of the same type, though probably not of the same duration, as the publicity which the Johnston defendants fear would emerge from trials of the federal indictments. And a hearing on allegations that press and broadcast coverage undermined the fairness of the grand jury proceedings would only exacerbate the problem.
Wherefore, the hearings scheduled for June 25 will be cancelled and consideration of the motions postponed until after the state trials.
Paragraph 2 and 3 of count 18 of Indictment No. 78-304 read as follows:
2. Defendant BRUCE JOHNSTON SR., DAVID JOHNSTON, and NORMAN JOHNSTON well knew that Edward Otter was a witness before the Federal Grand Jury and a potential witness in Courts of the United States.
3. On or about November 30, 1978, in the Eastern District of Pennsylvania, defendants BRUCE JOHNSTON, SR., DAVID JOHNSTON, and NORMAN JOHNSTON did corruptly endeavor to influence Edward Otter, a government witness, and did endeavor to injure Edward Otter in his person, and did corruptly endeavor to influence, obstruct, and impede the due administration of justice in the following manner: