The opinion of the court was delivered by: POLLAK
Indictment No. 79-8 charges each of four persons Ferd Greer, Bruce Johnston, Sr., David Johnston, and Norman Johnston with one or more counts of (1) interstate transportation of stolen property, and (2) conspiracy. Indictment No. 78-304 charges each of the three Johnstons, who are brothers, with one or more counts of (1) interstate transportation of stolen motor vehicles, (2) obstruction of justice, and (3) conspiracy. These two indictments are the current embodiments of earlier indictments which have been superseded or dismissed.
After the initial federal indictments were returned, Pennsylvania authorities filed numerous state charges, ranging from burglary to homicide, against the Johnstons and others. The filing of the state charges triggered massive newspaper, magazine, radio and television coverage, both local and national; this publicity began late last fall, reached a crescendo during the winter months, and has recurred intermittently this spring.
It is anticipated that the state trials will begin in the late summer or early fall. The federal charges, having been initiated earlier than the state charges, were scheduled to be brought on for trial commencing June 25. On May 23, I heard argument on certain defense motions whose disposition is summarized in this memorandum. As is explained below, one result of the argument is that I have decided to postpone the federal trials until after the state trials.
The three Johnstons moved for an indefinite continuance of the trial of both federal indictments. They contended that the publicity has been so pervasive in scope and prejudicial in content as to make a fair trial unattainable in the foreseeable future.
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.
Wherefore, the hearings scheduled for June 25 will be cancelled and consideration of the motions postponed until after the state trials.