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March 18, 1966

UNITED STATES of America ex rel. William DAVIS, Petitioner,
Hon. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent

The opinion of the court was delivered by: FOLEY

JAMES T. FOLEY, Chief Judge.

 This habeas corpus proceeding, in my opinion, involves a claim of substance. It compels an unpleasant task in that the review to a great degree concerns discretionary acts by a state trial judge on the scene in a situation that every trial judge, state or federal, knows is perplexing, troublesome and upsetting even to the most placid. (United States ex rel. DiBlasi v. McMann (NDNY), 236 F. Supp. 592; aff'd 2 Cir., 348 F.2d 12). The important question here is whether under the prevailing circumstances at the time of trial on serious charges this petitioner, against his wishes, was forced to trial without any counsel retained or assigned, when he insisted throughout he wanted a lawyer, in violation of the Sixth Amendment, and whether the trial itself on a multiple indictment was so unfair under the circumstances of self-representation as to violate the due process clause of the Fourteenth Amendment. In my judgment, and it is recognized as drastic intrusion, the State trial record and the federal presentation convince me that the State action and the resulting conviction was violative of federal constitutional right and liberty. (Townsend v. Sain, 372 U.S. 293, 312, 83 S. Ct. 745, 9 L. Ed. 2d 770).

 We have a situation by reason of unusually tempestuous events that indicate to me that prejudice to the legitimate interests of the petitioner overbalanced the important need for proper judicial administration and its protection from cunning maneuver to disrupt it. (DiBlasi, supra, 348 F.2d 12, 15). Justice Cardozo said competing considerations must be weighed in such scales as are available. (Hoadley v. Hoadley, 244 N.Y. 424, 434, 155 N.E. 728, 51 A.L.R. 844).

 There is available the state trial record made in Brooklyn in October, 1962. The present petition is supported by an affidavit of Mrs. Ethel W. Mott, the retained lawyer for the petitioner, who participated in the trial until eleven jurors were selected, the affidavit of a lawyer of the Legal Aid Society, Mr. Thomas Brett, whose part at the trial scene for a very short period of time will be discussed later, and the affidavit of Edward Davis, the petitioner's brother. Depositions of Judge Leibowitz and Assistant District Attorney Selzer were taken in Brooklyn in the Judge's Chambers in April, 1965, and at the request of the attorney for the petitioner the brother, Edward Davis, testified before me at hearing held in Albany on June 21, 1965. This description of effort should point up again the difficulty this District Court has to compile a satisfactory record when a conviction is rendered far away in the City of Brooklyn or New York. The awkwardness should be apparent to all of this long distance review that is sought to be overcome by H.R. 7618, legislation introduced in the Congress and approved by the Judicial Conference of the United States to allow coordinate jurisdiction for the filing of these state prisoner writs in the federal district of sentence as well as that of confinement, and permit discretionary transfer for hearing and determination when necessary in furtherance of justice.

 The petitioner was convicted on October 24, 1962 by a jury, of robbery first degree, grand larceny first degree, and assault in the second degree. Judge Leibowitz, for some reason not explained in the record, did not sentence until February 14, 1963, the sentence being imprisonment for a term of thirty to sixty years as a second felony offender. A copy of the sentencing minutes separate from the trial record furnished shall be filed with the Clerk of this Court. In a short memorandum the Appellate Division, Second Department, 21 A.D.2d 964, 252 N.Y.S.2d 405, unanimously affirmed the judgment of conviction and concluded without reference to any detail that the Trial Court offered to assign counsel, which the defendant refused to accept, and although the trial proceeded with defendant acting as his own counsel, under the circumstances defendant waived his right to counsel and was not deprived of a fair trial. The cases cited in support of the ruling are: People v. Gordon, 8 A.D.2d 835, 190 N.Y.S.2d 625; aff'd 7 N.Y.2d 942, 198 N.Y.S.2d 314, 165 N.E.2d 877; cert. den. 363 U.S. 853, 80 S. Ct. 1634, 4 L. Ed. 2d 1735; People v. Bai, 7 N.Y.2d 152, 196 N.Y.S.2d 87, 164 N.E.2d 387. Judge Fuld of the New York Court of Appeals denied leave to appeal without comment.

 I shall refer to some of the incidents in the trial record that cause disagreement on my part with these rulings. The case was moved for trial on October 16, 1962, at a Trial Part of the Supreme Court, Kings County, over which Judge Leibowitz was presiding. The petitioner-defendant had been confined since April, unable to post the substantial bail required, and was so confined at the time of and during the trial. On this first day when the case was moved for trial, he was represented by Mrs. Ethel W. Mott, an attorney, who had been his retained attorney for several months. Mrs. Mott, after some discussion in open court, was denied the adjournment she requested, and was directed to draw a jury that afternoon and start the trial the next day. Then, and it is in the record, a conference took place in the judge's Chambers at the request of Mrs. Mott, concerning a plea of guilty. Present were the Judge, the Assistant District Attorney, Mrs. Mott and the defendant. The record discloses that at this time the District Attorney was willing to accept a plea to Robbery third degree in satisfaction of the indictment, and the Judge went further and said he would treat it as a plea to attempted Robbery third degree. (R. 6-7). This portion of the record gives some indication the Judge knew the criminal record of the defendant at this time when the plea was discussed, and this knowledge is verified in the deposition of the Judge later. (Dep. pg. 21). The petitioner-defendant was adamant at this conference that he would only talk to his lawyer about a misdemeanor plea. (R. 8). These are not unusual events in themselves, because I suppose criminal courts in the metropolitan areas with their massive burden have to discuss pleas in this manner. However, it is a paradox that after a two-day trial this same petitioner-defendant to whom this greatly reduced plea was offered by the Judge himself, was described at the sentence by the Judge after the trial as a no-good rotter, a confirmed gunman and such a menace to society that imprisonment "for a good long time" was called for. (S.M. 15).

 When the jury examination was commenced on October 16, the voir dire examination of the prospective jurors, as is the custom of many courts including this one, was not recorded except when objection was made. The incident of significance in the record is the objection of Mrs. Mott that she had exception to Juror 10 because he had a daughter who was an Assistant District Attorney. The Judge reserved upon the question whether this was a proper challenge for cause until the next morning so the law could be searched. Mrs. Mott, during this interrogation before the jury was complete and sworn, had used the twenty peremptory challenges. Despite the absence of details in the trial record it does seem clearly evident that this first and beginning day of jury selection was a stormy one. The following morning the Judge allowed a peremptory challenge to Juror 10, and excused another juror at the latter's request.

 With ten jurors in the box as acceptable, here is what took place the second day that enlightens as to the day before:

THE COURT: You said the family want you to withdraw from the case, and I don't care about the family. I have ruled. Take your exception and please sit down.
* * *
MRS. MOTT: I want to withdraw on account of what happened yesterday.
THE COURT: I don't care what happened yesterday.
MRS. MOTT: Have you forgotten what happened yesterday?
THE COURT: Please be seated.
THE DEFENDANT: Your Honor, I don't wish to retain this woman any further. * * *
MRS. MOTT: Your Honor, I have been fired. * * * Your Honor, please ...

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