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UNITED STATES v. BIRRELL

May 27, 1968

UNITED STATES of America, Plaintiff,
v.
Lowell M. BIRRELL, Defendant


Herlands, District Judge.


The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge.

THE COURT: Presently before the Court is a motion by The Legal Aid Society to be relieved as assigned counsel for Lowell M. Birrell, the defendant herein. The current motion by the Society to be relieved has been joined in by defendant in the sense that he also seeks to have the Society terminate its representation of him. For the reasons hereinafter set forth in detail, the Court denies the Society's motion.

 THE FACTUAL BACKGROUND

 The matters now before the Court represent an extraordinary proceeding in an extraordinary case. It would be intellectually impossible to appreciate the implications of the matters before the Court and the significance of the arguments propounded in connection therewith without a full comprehension of and insight into the defendant's course of conduct throughout the entire history of this case, the indictment in which has been pending since July 20, 1961.

 From October 5, 1957 to April 23, 1964 - a period of six and one-half years - defendant was outside the United States. During this period, the trial of the indictment was delayed almost three years.

 After defendant's return to the United States, the trial of the indictment was further delayed over three years. Most of this delay was attributable to defendant's "numerous and, in some respects repetitive, motions or his temporary inability to proceed because of change of counsel." United States v. Birrell, 276 F. Supp. 798, 821 (S.D.N.Y.1967). *fn1" The case went to trial on December 4, 1967; and, on December 28, 1967, the jury found defendant guilty on ten counts of selling unregistered securities and one count of conspiracy. Birrell has not yet been sentenced because several post-conviction proceedings, which he has initiated, have not yet been heard and determined.

 When Birrell returned to this country in 1964, he was assigned counsel by the Court. Since that date he has been represented continuously by court-appointed counsel: first, by Mr. William B. Pennell, who served from May 8, 1964 to October 27, 1965; then by Mr. William J. Brennan, who served from November 8, 1965 to June 29, 1967; then by Mr. Charles N. Brower, who served from June 29, 1967 to January 4, 1968; *fn2" and since then exclusively by The Legal Aid Society. Mr. Martin Portnoy of The Legal Aid Society, who had worked as co-counsel with Mr. Brower from June, 1967 through the trial, remained in the case. In view of the nature of the post-conviction proceedings, The Legal Aid Society secured the services of Mr. Leonard Sandler as senior counsel, Mr. Steven Singer as investigator and junior attorney, and Mr. Stuart GraBois as investigators. *fn3" In addition, the Society hired stenographic assistance when needed.

 Mr. Sandler and his associates from The Legal Aid Society have rendered effective and zealous representation to defendant in the post-verdict proceedings. The Court bases this conclusion on a close examination of the written and oral presentations made by defense counsel. In arguing motions, conducting cross-examination and submitting memoranda of law and affidavits, Mr. Sandler's work has been of high quality.

 Moreover, Mr. Sandler has had long and extensive experience as a trial lawyer in criminal matters. He was admitted to the New York Bar in 1950 and served first as law clerk to Chief Judge Sylvester J. Ryan of this Court from 1950 to 1951, and then as law secretary to Mr. Justice Bernard Shientag of the Appellate Division, First Department, until 1952. Mr. Sandler was then associated with Cleary, Gottlieb, Friendly and Hamilton until 1954, when he was appointed as an Assistant District Attorney for New York County. He served as an Assistant District Attorney for nine years in the Homicide and Supreme Court Bureaus, where most of his work consisted of trying felony and homicide cases. Since 1963, he has been in private practice specializing in criminal matters, both on the trial and appellate levels. (Post-Trial Minutes, pp. 441-443).

 Mr. Portnoy was admitted to the New York Bar in 1965 and was in private practice for a period of three or four months. In 1966, he joined the staff of the criminal branch of The Legal Aid Society, where, for the next year and one-half, he tried several hundred criminal cases before three-judge panels in the State courts. In June, 1967, Mr. Portnoy was assigned on a full-time basis to the instant case. (Post-Trial Minutes, pp. 443-444).

 Mr. Singer was admitted to the New York Bar in 1967. From 1963 to 1967, he was an investigator in the Social Welfare Department of New York City. From June, 1967 to January, 1968, he was a special agent in the Internal Revenue and Intelligence Branch of the Treasury Department. In that position, he received training in investigative techniques. In January, 1968, he joined the staff of The Legal Aid Society and was assigned to the instant case as an investigator and junior attorney. (Post-Trial Minutes, pp. 444-446).

 On June 16, 1967, when Mr. Brower and Mr. Portnoy were entering the case as assigned counsel, the Court set the case down for trial on December 4, 1967, thereby giving defense counsel approximately six months to prepare for trial. (Pre-Trial Minutes, pp. 228, 234, 242, 261).

 In spite of the fact that the trial of the indictment had been long delayed and that new counsel had been given almost six months to prepare, defendant sought to further delay the proceedings. By petition dated November 17, 1967 and returnable November 27, 1967, defendant petitioned the Court of Appeals for the Second Circuit for a writ of mandamus directing this Court: (1) to hold a pretrial hearing to determine ownership to approximately one or two million records suppressed for use as evidence against defendant; and (2) to recuse itself from presiding over the trial of this indictment. Oral argument was held on November 27, 1967; and the Court of Appeals by unanimous decision rendered from the bench denied defendant's petition in all respects.

 On that same day - November 27, 1967 - defendant moved before this Court for an adjournment of the commencement of the trial on the ground that counsel was not prepared to go forward. The Court denied this motion.

 On November 28, 1967, defendant applied to the Court of Appeals for a stay of all proceedings pending the filing of a petition for a writ of certiorari with the United States Supreme Court. The Court of Appeals unanimously denied this application.

 On November 29, 1967, defendant applied to Supreme Court Justice John M. Harlan, Circuit Justice for the Second Circuit, for a stay of proceedings pending the determination of a petition for a writ of certiorari "to be filed as soon as possible." On December 2, 1967, Mr. Justice Harlan denied defendant's application for a stay of the trial.

 On November 30, 1967, defendant's motion to adjourn the trial was renewed and was likewise denied by this Court.

 On November 30, 1967 - four days before the trial was to commence - Messrs. Brower and Portnoy sought the Court's direction in resolving an undisclosed conflict which had arisen between defendant and his attorneys over the conduct of the defense. Mr. Brower informed the Court that the point in issue was fundamental and central to the case as a whole and was precipitated by the denial of defendant's two motions for adjournment. (Pre-Trial Minutes, pp. 1201-1206, 1212-1213).

 No specification was made by defendant's counsel as to the nature of the dispute, aside from conclusory characterization; no affidavit was filed by defendant's counsel; no formal application or motion was made by defendant's counsel; no statement was made by defendant Birrell; and no affidavit was filed by defendant Birrell.

 Extensive proceedings were conducted by the Court on November 30th and December 1st in order to resolve this problem. *fn4" The Court clarified the issue by making it clear to the defendant that he might either proceed with present court-appointed counsel or proceed pro se if he makes an unequivocal request to act as his own lawyer and intelligently and knowingly waives his right to the assistance of counsel. (Pre-Trial Minutes, pp. 1220-1221).

 After conferring with defendant, his lawyer, Mr. Brower, informed the Court that Birrell did not wish to proceed pro se and he wanted Messrs. Brower and Portnoy to continue to be his attorneys. (Pre-Trial Minutes, pp. 1239-1240).

 Mr. Brower and Mr. Portnoy then moved to be relieved as counsel to Mr. Birrell because the undisclosed attorney-client conflict as to how to conduct the defense had not been resolved. (Pre-Trial Minutes, pp. 1240-1241).

 The Court denied the motion of defense counsel to be relieved. For the guidance of both defendant and counsel, the Court reviewed the leading and relevant authorities dealing with this problem. The Court pointed out that a client cannot, particularly on the eve of trial, manipulate the right to counsel in order to stall the commencement of trial. (Pre-Trial Minutes, p. 1255). Defendant was instructed that, if he wished to be represented by Messrs. Brower and Portnoy, he would have to behave as a client and abide by the decisions of counsel made in the exercise of their professional judgment. The Court noted that if defendant, a member of the bar since 1930, "wants to act as his own lawyer, then he has the right to do so but he cannot simultaneously and concurrently act as his own lawyer and, at the same time, expect assigned counsel to discharge their professional responsibilities to him." (Pre-Trial Minutes, pp. 1256-1257).

 Defendant was informed that "the right to counsel cannot be used as a gambit in a 'cat and mouse game' to frustrate the administration of justice * * *" (Pre-Trial Minutes, p. 1271). The Court concluded by pointing out that "to permit the case to be adjourned in light of its history and chronology under such circumstances would be an open invitation to other defendants to manipulate the attorney-client relationship so as to forestall a trial." (Pre-Trial Minutes, p. 1272.)

 At various times during the trial, defendant attempted to delay the proceedings by seeking adjournment on the ground that counsel was not prepared. Motions were also made for a mistrial on the ground that defendant's right to effective assistance of counsel had been violated.

 After the jury verdict was returned on December 28, 1967, Mr. Brower moved to be relieved as assigned counsel. This request was granted on January 4, 1968 and The Legal Aid Society remained in the case as defense counsel. The Court set up a schedule and an agenda for the disposition of the four post-conviction proceedings. The first of these proceedings was the so-called taint hearing: an evidentiary hearing in which the Government would have to prove the constitutional purity of the evidence it offered at trial. This hearing was necessitated by Judge Wyatt's order of June 11, 1965 suppressing for use as evidence records that were seized from defendant on August 22nd and 24th, 1959. United States v. Birrell, 242 F. Supp. 191, 201 (S.D.N.Y.1965). On May 23, 1967, this Court had ruled that the so-called taint hearing should take place post-trial in the then suppositious event that defendant was convicted. United States v. Birrell, 269 F. Supp. 716, 725 (S.D.N.Y.1967).

 In view of the entrance of Mr. Sandler into the case as new senior counsel and the need for him to become familiar with the trial record, motion papers and the case as a whole, the Court arranged to have the Government fully disclose its direct case in advance to the defense. All objections except those as to the form of the question would be reserved and the taint hearing would be adjourned for a substantial and reasonable amount of time to allow the defense an opportunity to prepare for cross-examination. The exact length of the adjournment needed to prepare for cross-examination would be determined after the presentation of the Government's case and would be "reasonable and adequate judged by the most generous standards." (Post-Trial Minutes, p. 257). At the conclusion of defendant's cross-examination of the Government's witnesses, the Court would determine what additional adjournment of the taint hearing would be necessary to enable defendant to be prepared to present his direct or rebuttal case. (Post-Trial Minutes, pp. 1243-1244).

 The Government presented its direct case in the taint hearing on February 20th, 21st and 23rd. The defense was given an adjournment until April 8th - a period of over ...


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