problems right now. Judge Corcoran, for example, is just recovering from an operation on his hip.
So, I see no alternative but to declare a mistrial, in this case, which will require that this case be tried at a later date, which I will not attempt to set at this time, until a judge has been assigned to the matter.
It will be necessary for each and all of the defendants to remain under the bonds that have been set in this case, and I now wish to inform each and every one of them that their bond is still in effect, and that any failure to comply with the conditions of their individual bonds will subject them to a penalty of five years.
I don't know whether any of the attorneys here wish in any way to make any comment prior to my bringing in the jury?
MRS. DILDINE: Yes, Your Honor, definitely. On behalf of Theresa Lucas, we would object to a mistrial.
THE COURT: On what grounds?
MRS. DILDINE: On the ground that we would be willing to wait until a judge is available, and I see no necessity of declaring it at this time.
THE COURT: How long do you think you would be willing to wait? Six months?
MRS. DILDINE: I don't think it would take nearly that long for a judge to become available. I understand that the judges right now are all on trial, but I would think that some arrangement could be made with one.
THE COURT: And what about the Jury? This jury has now been held, what is it, five weeks?
MRS. DILDINE: I understand that, Your Honor. It would be difficult.
THE COURT: Your objection is overruled.
MR. DRURY: On behalf of James Johnson, Your Honor, I object to a mistrial in this case for the grounds stated by Mrs. Dildine.
THE COURT: I will of course overrule your objection, also, Mr. Drury.
MR. BERNARD: Your Honor, if it please the court, on behalf of Clayton Pina, we so join the motion.
MR. O'KEEFE: Also, on behalf of John Bruner, we join in the motion.
MR. LEVIN: On behalf of Emma Jean Ward, we join in the motion, also.
MR. ROSEN: On behalf of Milton Battle, we also join.
MR. FRISCH: Your Honor, we join, in behalf of Myrtle Lynch.
THE COURT: All of you experienced trial counsel know that that motion has no merit.
It is overruled.
Bring in the jury.
(Mr. Jones and Mr. Robbins were standing.)
Will you ask that defendant to remain after I have dismissed the jury? (referring to Emma Jean Ward, just arrived.)
(Whereupon, at 9:40 a.m., the Jury enters.)
THE COURT: You see I'm on the Bench again. Judge Flannery's health has not, does not permit him to return to this trial in the near future, and, accordingly, I have just advised the defendants and their counsel that I am declaring a mistrial, which means that the case will have to start all over again at a later date when a judge becomes available to handle the case, and it means that you are all now today excused from further jury service.
I know that you have patiently listened to the two or three weeks that this trial was underway, and I am sure some of you may have been quite inconvenienced by the uncertainty, and the fact that we have had to continue it once or twice, hoping that Judge Flannery would be able to take it up again.
I want to thank you all for your service and your consideration of the court, and in this very unusual and special problem in this connection.
I now excuse all of you. I don't imagine that any of the attorneys will attempt to communicate with you but if they do my advice to you is that you don't discuss the case with them in any way.
You are now excused.
(Whereupon, at 9:41 a.m., the Jury leaves.)
THE COURT: Now, Ms. Ward, I imagine you were late because of the weather?
MS. WARD: Well, sir, I was caught. Me and my son, at the District Line, and I was walking him to the bus stop and a car accidentally hit him a little bit. And this guy, he was all right, seemed to me, but he wouldn't go to that hospital alone, so I had to take him to the hospital, and I had to go with him.
And, therefore, that is what made me late.
THE COURT: Well, I appreciate that that is very unusual circumstances and I think you did very well to get here when you did. I want you to understand that I have declared a mistrial in this case. You remain under your same bond. You are required to comply with the conditions of that bond. There is a penalty of five years if you do not.
Defendants will all be notified later of the new trial date.
MR. JONES: Off the record.
(Off the record.)
THE COURT: You will put this in the jacket somewhere, the memorandum of Mr. Haller.
(Whereupon, the above-entitled matter was adjourned.)
CERTIFICATE OF REPORTER
It is certified that the foregoing transcript is the official record of the proceedings indicated.
(S) Shirley J. Hatch
(S) OFFICIAL REPORTER
It appearing that the trial judge assigned to this case has been hospitalized, remains under continued doctors' care, and will be unable to proceed with this case for an indefinite time no earlier than 1979, and that the other active judges of this court have been polled and it being established that no active judge is available to continue the trial, the court Sua sponte declares a mistrial for reasons of manifest necessity.
(S) Gerhard A. Gesell
(S) United States District Judge