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January 6, 1968

UNITED STATES of America ex rel. Danton S. MILLER, Petitioner,
Harold W. FOLLETTE, as Warden of Green Haven State Prison, Stormville, New York, Respondent

Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 Petitioner was convicted of possessing burglar's instruments and sentenced as a third felony offender after a jury trial. During his trial, he insisted on acting as his own attorney. He now seeks release from a state prison by writ of habeas corpus (28 U.S.C. § 2241) on the ground that he was deprived of due process of law by the prosecutor's references to his failure to testify and by unfair comment on the inferences to be drawn from his choosing to appear pro se.

 The transcript of defendant's trial in Nassau County Court suggests the difficulties a defendant who refuses the aid of counsel can create for himself despite all the efforts of a trial judge struggling to insure a fair trial. Pro se appearances put a strain on the adversarial system. We assume that the lawyer's urge to win for his client will be tempered by knowledge of the rules of litigation, ethical obligations of truth and fairness, and a degree of objectivity and perspective. None of these characteristics can be expected of criminal defendants. As a result, some rules designed for litigation conducted by attorneys tend to break down where a litigant defends himself against the state, represented by a prosecutor.

 So it was in this case. That the prosecutor uttered words he would have preferred to choke back into silence is clear. That, under the circumstances, the defendant lost nothing seems equally certain. No constitutional right was violated at this trial.

 The fact that a layman, who would be directly affected by the result, was trying the case created several special problems. First, petitioner tended to unnecessarily extend cross-examination by repeating questions and by dwelling on irrelevant matters. In cutting him short, the court acted with particular circumspection so that its treatment of petitioner as counsel would not influence the jury's view of petitioner as defendant. Second, both the court and the prosecution, in addition to filling their normal roles at the trial, felt called upon to render extra assistance to petitioner in presenting his case to the jury. Third, the court had to act as primary guardian of petitioner's constitutional rights lest he unwittingly waive them. Finally, both court and prosecutor had to maintain equanimity and perspective in the face of petitioner's sometimes exasperating behavior. A few examples from the record suggest the difficulties.

 The crime with which petitioner was charged, possession of burglar's tools, was a felony only if committed by a person previously convicted of a "crime." Thus, it became necessary for the defendant either to admit his prior conviction out of the presence of the jury or to put the prosecution to its proof before the jury. Both the court and prosecution were patient and clear in explaining the alternatives and their possible prejudicial consequences.

 Seeking to clarify the record, the court asked petitioner a question during his cross-examination of the arresting officer which called for a testimonial answer. The prosecuting attorney alerted the court to the possible waiver of "certain constitutional provisions." Thereupon, the court specifically warned petitioner of the danger of waiver inherent in the court's question and apologized.

 While cross-examining a police officer, petitioner nearly forced the witness to disclose that petitioner had a prior conviction. The court stopped the inquiry, advising petitioner outside the hearing of the jury of the tactical dangers involved.

 In the face of a compelling record - 583 pages long - of fair play by court and prosecutor, petitioner culls from the transcript two isolated remarks in an attempt to invalidate his conviction.


 The claim that the Assistant District Attorney's comment on the inferences to be drawn from petitioner's decision to defend himself was improper may be quickly disposed of. The language objected to in the prosecution's summation reads as follows:

"I submit to you with all sincerity that justice requires a conviction in this case, that justice requires it because he has attempted to obstruct the minds of this court record with respect to a course of conduct, which if he is successful, I submit to you will be a disgrace and a blot on this community. He has done everything from attack the DA to the Court to the witnesses to his own counsel, who have come in here and attempted to help him."

 There is no doubt that petitioner has a constitutional right to defend himself. United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). See also United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2d Cir., 1965), cert. denied, sub nom. DiBlasi v. McMann, 384 U.S. 1007, 86 S. Ct. 1950, 16 L. Ed. 2d 1020 (1966) (there must be an unequivocal request to defend pro se in order to make denial of the right reversible error). Whether adverse comment on the exercise of this right is as significant as comment on failure to take the stand, is a matter we need not decide. Cf. Griffin v. State of California, 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

 It is highly doubtful that the jury could have interpreted the prosecutor's remarks as adverse comment on petitioner's acting as his own counsel. Petitioner did not object to prosecutor's summation at trial, suggesting that the statement of the prosecutor was not, in context, prejudicial. Moreover, any possibility of prejudice to petitioner was eliminated by the court's instructions at the time petitioner discharged ...

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