Friendly and Hays, Circuit Judges, and Clarie, District Judge.*fn* Clarie, District Judge (dissenting).
On November 15, 1943 appellant Codarre, then thirteen years old, was placed on trial in the County Court of Dutchess County, New York, for the crime of murder in the first degree, a charge at that time carrying the possibility on conviction of imposition of the death penalty.*fn1 Codarre entered a plea of not guilty by reason of insanity. One Dr. Banay, a psychiatrist who had conducted a thorough examination of appellant, was prepared to testify that Codarre "was experiencing a psycho-motor epileptic attack * * * that this boy was legally insane at the time of the commission of the alleged crime."*fn2 There was also testimony to the contrary on the issue of legal insanity.
On November 23, 1943, after the state had rested its case, Codarre withdrew his plea of not guilty and entered a plea of guilty to murder in the second degree. He was sentenced to a term of imprisonment of thirty years to life.
On May 10, 1960, appellant applied to the County Court of Dutchess County, New York for a writ of error coram nobis. Lengthy litigation followed.*fn3 The New York Court of Appeals rendered two decisions. In the first, Chief Judge Desmond, speaking for the court, directed that a hearing be held because
"the taking of a guilty plea of murder from so young a defendant called for an extreme measure of caution and at least certainty of guilt and of the complete absence of any plausible defense. On a trial of the allegations of this petition, it might be found as fact that this defendant had such a defense and that insufficient consideration was given to it." People v. Codarre, 10 N.Y.2d 361, 365, 223 N.Y.S.2d 457, 459, 179 N.E.2d 475, 476-477 (1961).
At the hearing which followed, the county judge, focusing upon whether there was "certainty of guilt," merely decided that Codarre "was legally sane in 1943 when he committed the offense." People v. Codarre, 38 Misc.2d 445, 450, 237 N.Y.S.2d 389, 395 (Dutchess County Ct. 1963).
In the second Court of Appeals decision, the court said:
"The jury could have found the defendant guilty of murder in the first degree. It might have acquitted him on the ground of insanity had it accepted the opinion of the psychiatrist who thought he was insane. * * * The Judge's decision to accept the plea was within a fair range of responsible judicial action." People v. Codarre, 14 N.Y.2d 370, 372, 251 N.Y.S.2d 676, 678, 200 N.E.2d 570, 571-572, cert. denied, 379 U.S. 883, 85 S. Ct. 153, 13 L. Ed. 2d 89 (1964).
Chief Judge Desmond and Judge Fuld dissented.
Appellant then applied to the United States District Court for the Southern District of New York for a writ of habeas corpus. That court, finding no denial of due process, refused the writ.
On this appeal we are not concerned with the substantive situation at the time the crime was committed, but rather with appellant's capacity at the time of the trial and of the plea of guilty. The issue with which we are faced is whether Codarre, then a thirteen year old boy with a history of epilepsy and evidence of brain abnormalities, made a reasoned choice, "voluntarily after proper advice and with full understanding of the consequences," when he entered his plea of guilty. Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed. 1009 (1927); see Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); United States ex rel. McGrath v. LaVallee, 348 F.2d 373, 376 (2d Cir. 1965). Where a guilty plea is not based upon a reasoned choice, the resulting conviction is open to collateral attack. See Machibroda v. United States, supra; Waley v. Johnston, 316 U.S. 101, 62 S. Ct. 964, 86 L. Ed. 1302 (1942); United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 311 (2d Cir. 1963).
Appellant's counsel first indicated his desire to enter a plea of guilty at a conference held on the night of November 22, 1943. The trial judge, the district attorney, defense counsel and four psychiatrists were all present at the conference, but Codarre was not even informed that a conference would be held. The next day, in accepting Codarre's plea, the trial judge said:
"We were here until ten o'clock, without your knowledge * * * and it was after that lengthy discussion that we really came to that conclusion of this plea * * *." (Emphasis added.)
Of that conference Chief Judge Desmond said:
"The principal argument in favor of the guilty plea seemed to proceed from a fear expressed by the County Judge that defendant might be acquitted by the jury on the ground of insanity and be committed to a State mental hospital and might then be released shortly afterwards on a finding of sanity. There are signs that this apprehension may have diverted the attention of the conferees from their duty of providing a special measure of legal protection for this child." People v. Codarre, 10 N.Y.2d 361, 364, 223 N.Y.S.2d 457, 459, 179 N.E.2d 475, 476 (1961).
The memorandum of the conference illuminates the point made by Chief Judge Desmond:
"The Court: * * * Suppose they committed him to Matteawan, with very good treatment, he was released in a year, under the very capable care of Dr. ...