(D.C. Civil Action No. 851-71) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Van Dusen, Gibbons and Hunter, Circuit Judges.
This is an appeal by the State of New Jersey from an order granting a petition for a writ of habeas corpus. The basic order appealed from provides:
"ORDERED that a writ of habeas corpus shall issue.
Further ORDERED that pending appeal, if any is taken by the State, or pending retrial, the Passaic County Court entertain an application by petitioner for bail to be fixed by the State Court in such amount and such form as may be deemed reasonable.
Further ORDERED that in the event an appeal is not taken by the State and the indictment is not moved for retrial within 60 days of the date hereof, petitioner shall be released from all further custody pursuant to the indictment."
Upon the entry of this order, Thomas, the petitioner, applied to the Passaic County Court to be released on bail. That court declined to entertain such an application. Thomas returned to the district court, which then amended the basic order to provide that he should be released upon posting his own personal unsecured bond in the amount of $25,000 with the Passaic County Court. It directed that the Clerk of the Passaic County Court accept such bond, and that upon its posting, Thomas be released from further custody pending disposition of the instant appeal.
The state's appeal urges.
(1) that the district court's decision that a writ of habeas corpus should issue was error, and
(2) that the district court was without power:
(a) to order a habeas corpus petitioner's release from state custody pending appeal, or
(b) to direct that the Passaic County Court fix the amount of bail or accept a bond in an amount fixed by the district court.
The Grant of Habeas Corpus
The district court's decision that the writ should issue was made, on the basis of the state court record without an evidentiary hearing, on the ground that identification evidence used at the trial violated due process. Thomas urged as an additional ground for granting the writ that the state trial court had coerced a verdict by use of an Allen charge. The district court did not regard this charge as an error of constitutional dimensions. But the court did point out that the necessity for the charge, i.e. the fact that the jury was unable to agree, tended to show that the identification errors could not, under Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969), and Chapman v. ...