The opinion of the court was delivered by: BONSAL
Respondents, The People of the State of New York, move, pursuant to 28 U.S.C. § 1447(c), to remand this action to the Supreme Court of the State of New York, County of New York. It was removed to this Court by the petitioners on February 6, 1969, on the ground that this Court has jurisdiction pursuant to 28 U.S.C. § 1443(1) because petitioners are black citizens of the United States and are
"unable to enforce in the courts of the State of New York rights and liberties furnished to them under the Constitution and laws of the United States providing for same."
Petitioners were indicted and convicted of murder in the first degree and sentenced to life imprisonment. Prior to their trial, petitioners, who were indigent, moved to have counsel of their choice, who were ready, willing, and able to represent them, assigned, with pay, to defend them. Their motion was denied and other court appointed counsel defended them.
On appeal, the New York Court of Appeals reversed and ordered a new trial on the ground that confessions had been improperly admitted at the trial, People v. Baker, 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232 (1968). In its opinion, the court stated, "Finally, we find no error in the manner in which the trial court appointed defendants' counsel." 296 N.Y.S.2d at 757, 244 N.E.2d at 240.
Petitioners are now awaiting a second trial and allege that they have again been denied the services of counsel of their choice, who are ready, willing, and able to represent them, notwithstanding the fact that counsel of their choice are members of the Indigent Defendants' Legal Panel. Section IV-A-4 (trial panels) and Section IV-C-4 (appellate panels) of the Plan for the Indigent Defendants Legal Panel, adopted pursuant to Article 18-B of the County Law, McKinney's Consol. Laws, c. 11, provide:
"No defendant accepting representation under Article 18-B of the County Law shall be permitted to select his own counsel from the panel of attorneys."
Petitioners contend that they have a constitutional right to counsel of their own choice and, moreover, since a co-defendant, Hamm, has been assigned counsel of his choice, the others are being denied equal protection of the laws.
Petitioners seek to support the removal on the basis of 28 U.S.C. § 1443(1), which provides as follows:
"Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;"
and they cite 42 U.S.C. § 1981 to support their contention that they are being denied equal rights under the law, which section provides:
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like ...