OPINION AND ORDER
TOLEDO, Chief Judge.
This case raises an issue left open by the First Circuit Court of Appeals in Figueroa Ruiz v. Delgado, 359 F.2d 718 (1966).
Petitioner Ada Luz Iglesias Delgado has prayed for a writ of habeas corpus alleging that she was accused, tried and sentenced in the District Court of Puerto Rico for violating Section 137 of the Penal Code of Puerto Rico. She claims that in said Court the Judge exercised the functions of Judge and Prosecutor, because there was no Prosecutor representing the State.
The District Court found petitioner guilty whereupon she requested a trial de novo which was held before the Superior Court of Puerto Rico. This Court found petitioner guilty of the crime charged and sentenced her to four (4) hours in jail and to pay a fine of $100.00. Petitioner then brought her case before the Appeals Division of the Superior Court pursuant to Article 1 of Law No. 11 of August 8, 1974 and a Resolution of the Supreme Court of Puerto Rico dated September 20, 1974. The Appeals Division affirmed the conviction on February 11, 1976.
On February 26, 1976, the present petition for habeas corpus was filed wherein it was requested that the writ be issued. We denied a request for a temporary restraining order prohibiting respondent from enforcing the judgment of the Appeals Division. The matter was referred to the United States Magistrate for his recommendation on whether we should order respondent to show cause why a writ of habeas corpus should not be issued against him. The Magistrate reported favorably on March 19, 1976,
Petitioner contends that she has been deprived of her liberty and property without due process of law because in the first trial, held before the District Court of Puerto Rico, the Judge exercised both the function of judge and prosecutor. The cases of Figueroa Ruiz v. Delgado, supra; and Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), are cited in support of petitioner's contention.
In Figueroa Ruiz, the Court of Appeals for the First Circuit held that the system of judge-prosecutor, in which
Figueroa Ruiz declared the judge-prosecutor system unconstitutional and violative of due process because it deprived the accused of a neutral and independent judge:
The Court of Appeals in Figueroa Ruiz did not have before it the argument of trial de novo as a constitutional palliative. However, in a footnote the following was stated:
Subsequent to Figueroa Ruiz, the Supreme Court of the United States addressed itself to the issue of the remedial nature of trial de novo. Thus, in Ward v. Village of Monroeville, supra, the Supreme Court found no such relief in the existence of a right to a trial de novo.
In Ward, the Mayor of Monroeville convicted an accused of two traffic offenses and fined him, acting pursuant to Ohio statutory provisions authorizing mayors to sit as judges in cases of ordinance violations and certain traffic offenses. In overturning the convictions the Supreme Court found that because the Mayor, who was responsible for village finances and whose court through fines, forfeitures, costs and fees contributed to the village funds, presented a
The unconstitutional inconsistency of the judge-prosecutor's duties is not defined by Ward (pecuniary interest) but by Figueroa Ruiz (the trammelled exercise of the judicial function by the simultaneous role of prosecutor). Ward is central to the case at bar because it rejected the argument that the right to a trial de novo would cleanse the prior proceedings before the Mayor of constitutional defects:
On June 28, 1976, the Supreme Court decided the case of North v. Russell et al., 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534.
Two days after the North ruling, the national Supreme Court again partially relied on the existence of a trial de novo to uphold a state court system under which a defendant in a criminal case, including some felony charges, is tried in the first instance without a jury but may appeal and obtain trial de novo by jury. Thus, in Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976), no due process violation was found. Again, we find that in Ludwig the figure of the judge was not in issue.
Figueroa Ruiz having decided that a judge-prosecutor did not meet the constitutional due process requirements of a neutral and detached judge, and Ward having stated that a subsequent right to trial de novo did not cure such a constitutional defect present at the inception of the process, we can not but conclude that in the case at bar, petitioner's right to trial de novo does not remedy the pre-existent lack of due process in having been tried by a judge-prosecutor.
Even though neither party has raised it, we take judicial notice of Act No. 146 of July 23, 1974, Title 3, Laws of Puerto Rico Annotated, Section 90 et seq. wherein the Puerto Rico Legislative Assembly provided for the creation of 40 posts of Assistant District Attorneys for the Puerto Rico District Courts.
It could very well be that by virtue of said Act supra, petitioner's case is no longer the rule of practice before the Puerto Rico District Court. However, the fact remains that petitioner was indeed tried before a judge who also played the role of prosecutor.
We find that petitioner now before us has been denied her right to due process of law guaranteed her by the Fourteenth Amendment to the Constitution of the United States of America. Wherefore, the writ of habeas corpus is hereby granted. Respondent is ordered to release petitioner. Nevertheless, in order to allow respondent to appeal to, and request a stay from, the U. S. Court of Appeals for the First Circuit, a stay of the execution of the writ is hereby temporarily granted for a term of twenty (20) days.
IT IS SO ORDERED.