Waterman, Moore and Anderson, Circuit Judges.*fn* Moore, Circuit Judge (dissenting).
This is an appeal by the warden of a New York state prison from an order of Chief Judge Foley of the United States District Court for the Northern District of New York sustaining appellee's writ of habeas corpus after a hearing at which the warden was represented by the office of the State Attorney General. Judge Foley's careful opinion setting forth his findings and conclusions is reported at 252 F. Supp. 539 (1966).
On October 24, 1962, after a trial by jury in New York State Supreme Court, Kings County, Judge Samuel S. Leibowitz presiding, the appellee, William Davis, was convicted of having committed the crimes of robbery in the first degree, grand larceny in the first degree, and assault in the second degree. At no time after the impaneling of the jury did Davis have the assistance of counsel. On February 13, 1963, he was sentenced as a second offender to serve a term of from 30 to 60 years. The conviction was unanimously affirmed by the Appellate Division, People v. Davis, 21 A.D.2d 681, 250 N.Y.S.2d 375 (1964), and leave to appeal to the New York Court of Appeals was denied by Judge Fuld of that court on July 13, 1964.
On January 6, 1965 Davis's petition to Judge Foley for the issuance of a writ of habeas corpus was filed in the court below. Davis alleged that his constitutional right to have the assistance of counsel had been denied him at his trial. The petition was supported by affidavits of Attorney Ethel M. W. Mott, who had been appellee's retained counsel when the case was called and who continued to represent him during the remainder of that day and until ten jurors had been chosen; Attorney Thomas Brett of the New York Legal Aid Society; and Edward Davis, appellee's brother. On April 12, 1965 the State took the depositions of Judge Leibowitz and Assistant District Attorney Selzer, the prosecutor at Davis's trial. On June 21, 1965 the district judge held his hearing on the petition. Edward Davis testified on behalf of his brother and the State introduced the depositions of the judge and the prosecutor on behalf of the warden. The district judge, after a most conscientious consideration of the state trial record and the evidence before him found that the petitioner had indeed been denied a fair opportunity to have the assistance of counsel at the state court trial and that petitioner was there deprived of the protection of the Sixth and Fourteenth Amendments. Accordingly the judge issued the order from which the warden appeals.
In his opinion Judge Foley has set forth the conspicuous occurrences that caused him to sustain the writ. In summary, however, the events before and during trial which relate to the petitioner's claim that he was denied a fair opportunity to have the assistance of counsel in the presentation of his defense are also set forth herein.
The events out of which the prosecution arose occurred early in the morning of April 15, 1962, and Davis was arrested later that day. The Kings County Grand Jury indicted him on May 17, 1962. On or about May 18, 1962 Mrs. Ethel M. W. Mott was retained by the defendant to represent him. The case was assigned to Judge Rinaldi on May 18th. On May 23rd it was placed on the regular calendar and marked for trial. On June 11th the case was set over at the request of the defendant. On July 31st it was marked off because a prosecution witness was on vacation. It was on the calendar on September 10th before Judge McDonald and was again set over at defendant's request. It was placed on the ready calendar on October 9th and assigned to Judge Leibowitz. On October 16th Davis and his retained counsel Mrs. Mott appeared before Judge Leibowitz who indicated to them that he wished to begin the trial of the case that day. Mrs. Mott requested an adjournment. She claimed she had not been notified of the trial date, that her witnesses were not available, and that she wished a copy of the indictment and of the complaint in the Magistrate's Court. Judge Leibowitz ordered that a jury be selected that afternoon, the taking of evidence to commence the next morning.
This pronouncement was followed by a conference in chambers at Mrs. Mott's request. Davis, Mrs. Mott, and Judge Leibowitz were present. After appropriate warnings the judge told Davis that the court would accept a guilty plea to robbery in the third degree. The defendant rejected this suggestion, refusing to plead guilty to any crime more serious than a misdemeanor.
After this conference the voir dire examination of the jury began. During this examination, which is not recorded under New York practice except where an objection is made, Mrs. Mott claims in her affidavit that she was "subjected to continual harassment and abuse by Judge Leibowitz in the presence of the jury and of my client." After she had exercised all of the defendant's peremptory challenges, Mrs. Mott challenged a juror for cause on the ground that the juror's daughter was an assistant district attorney. This challenge was disallowed and the trial was recessed until the next day.
When court reconvened in the morning of October 17th Mrs. Mott was allowed an extra peremptory challenge to remove the juror she had objected to for cause; the prosecution was not allowed a corresponding additional challenge. After the court excused another juror Mrs. Mott announced that Davis's family had requested her to withdraw from the case. Davis supported this, saying that he was discharging Mrs. Mott. Judge Leibowitz refused to permit a withdrawal, ordered Mrs. Mott to sit down by the defendant, and warned Davis that if he discharged Mrs. Mott he would have to proceed without counsel.*fn1 Despite this refusal by the court to permit her to withdraw or to recognize that she had been discharged, Mrs. Mott continued in her efforts. Judge Leibowitz did not hesitate to express his opinion of these tactics:
Now I find this morning this new gimmick to wreck this trial, that the defendant wants Mrs. Mott discharged, and he is firing her. This is another attempt to wreck the trial, to have the matter go over -- to give the defendant an opportunity to get another lawyer so that the case would appear in another part, because the parts change here every month, and this lawyer is fully familiar with the practice.
If I permit this to happen, then it would be a mockery, and the Court would be subjected to indignities that it does not deserve.
The defendant may proceed. He will get a fair trial beyond cavil, but I will not permit these tactics which are intended to wreck this trial.
The trial record continues:
Mrs. Mott: Your Honor, I ask for a mistrial.
The Court: Please be seated.
Let the record show that counsel is now conversing with the defendant.
Madam, I have asked you to stay here.
Mrs. Mott: Your Honor, I am not representing this defendant any more.
The Court: I will ask you to sit here.
The Defendant: I do not wish to retain this woman as my counsel any further. She is fired.
The Court: Please sit down. I am wise to the game, and I would have to be a fool not to be cognizant of what is going on.
Mrs. Mott: I would like to say that I am taking exception to everything you say, and I would like it for the record.
The Court: Please sit down.
You will have to defend yourself unless you want Mrs. Mott to represent you.
The Defendant: I fired this woman.
(Jury returned to court room.)
The Court: You may proceed, Mr. District Attorney.
The prosecution made an opening statement to the jury, after which the court recessed the case and continued to question Mrs. Mott as to whether she had conferred with Davis's family. Mrs. Mott refused to answer, claiming she, herself, needed an attorney, and was "on the verge of collapse." The judge then permitted her to leave, saying: "Let the record show that counsel is running out of the courtroom."
Judge Leibowitz now faced the problem of when and how Davis was to have any new counsel. Questioning Davis, whom the judge ordered to be remanded for lack of bail, the judge learned that Davis wished to hire a lawyer though he did not have any particular lawyer in mind; he thought his family could afford to hire one for him and would do so.
Your family will go out and hire a lawyer. The lawyer will come in this afternoon, and if he wants a postponement, I will give him a postponement.
Then Davis's brother Edward, who had been present throughout the foregoing proceedings, was questioned by Judge Leibowitz. Edward indicated that he would have to raise money to hire a lawyer, and that he needed time. The judge gave him until the following morning to produce a lawyer and again indicated that he felt this was merely another Davis maneuver to delay trial so as to have the case heard by a different judge than he.
The next morning, Thursday, October 18th, Edward Davis appeared in court and stated that he had been unable to secure an attorney for his brother. Judge Leibowitz adjourned the trial until the following Monday, October 22nd, telling Edward Davis to get a lawyer at once, to bring him back immediately to confer with the defendant, and to be prepared to proceed with the trial on Monday.
On Monday, October 22nd, Edward Davis again appeared before the court without having obtained any attorney for his brother. He stated that he had contacted several lawyers but their fees were too high. He declined Judge Leibowitz's offer of assigned counsel and claimed he was to contact another lawyer that afternoon. Mr. Thomas Brett, an attorney from the New York Legal Aid Society, happened to be present in the court house. The judge called Brett forward and gave him a summary of the proceedings to that date. He then offered Brett's services to Davis, and offered to permit an hour's adjournment in order for Brett to prepare the defense case. Mr. Brett states in his affidavit that he could not have accepted the case on these restrictive conditions, and if forced to represent Davis he would have moved for a mistrial on the ground that the events up to that time had been highly prejudicial to the defendant. However, he did not have to decline the assignment for the defendant refused to accept his services under the conditions the court had laid down. After this the court recessed the trial to Wednesday, October 24th, and told Edward Davis that he had a last two days in which to produce an attorney for his brother.
Edward Davis's efforts during his final two day period were no more fruitful than his previous attempts,*fn2 so, as the judge had ordered, the trial proceeded on Wednesday with the defendant appearing without counsel. The defendant did not acquiesce to this arrangement. For example, during direct examination of a prosecution witness the following occurred:
The Court: Does the defendant have any objection to the picture going into evidence?
The Defendant: I am only the defendant.
The Court: Do you object or don't you object? Which is it?
The Defendant: I object to everything because I have no representation.
The Court: Mark it in evidence. Pay no attention to the remark of the defendant, gentlemen, about him having no representation.
Later, in the midst of the defendant's presentation of his own case, the court made another offer of assigned counsel which was refused. The warden and our ...