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June 17, 1969

UNITED STATES of America ex rel. Frank COLE, Petitioner,
H. W. FOLLETTE, Warden of Green-haven Prison, Stormville, New York, Respondent

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

 On November 2, 1956, a Westchester County grand jury indicted petitioner on charges of attempted sodomy, assault and criminal sexual practices upon an eleven-year-old boy. The crimes were alleged to have been committed on September 1, 1956. In November of 1965, nine years after the indictment, petitioner's case came on for trial. During more than seven of those intervening years he had been confined in Matteawan State Hospital, having been found repeatedly to be incompetent to assist in his own defense. Against that background, and with continuing indications that his mental and emotional state was at best dubious, petitioner was found in November 1965 to be engaged in "dilatory tactics" when he dismissed his retained counsel, and he was put to trial a few days later without new counsel. Forced over his objections to defend himself, but with his dismissed lawyer serving as an advisor, petitioner was found guilty and was sent by the trial judge to Grasslands Psychiatric Clinic for a psychiatric report prior to the court's consideration of sentencing. *fn1" Thereafter, having received the report and determined that petitioner was a second felony offender, the court sentenced him to a term of from 15 to 20 years.

 Following a long course of collateral attacks mounted pro se, petitioner came here seeking habeas corpus. His troublesome but only intermittently lucid papers called for the assistance of counsel. Michael O. Finkelstein, Esq., accepted the assignment and has worked indefatigably - organizing the facts hereinafter recounted; withdrawing the initial petition as premature, and exhausting an available plea to the New York Court of Appeals; and then filing the revised petition now before this court. These devoted and imaginative efforts have resulted in demonstrating grounds of constitutional law upon which this court will grant the petition for a writ of habeas corpus.


 The case is one in which it is peculiarly useful to have a detailed appreciation of the facts. At least this is the premise though to justify the rather lengthy recital which follows.

 Following his indictment on November 2, petitioner entered a plea of not guilty on November 21, 1956. On January 30, 1957, he withdrew that plea and pleaded guilty to assault in the second degree "to cover all counts" in the indictment. On March 7, 1957, he was allowed to withdraw the guilty plea and again to plead not guilty to all counts. The next day, March 8, he was committed for psychiatric examination, the result of which was a determination that he was insane.

 On April 15, 1957, petitioner was committed to Matteawan State Hospital. He remained there until November 17, 1961, when he was certified as sane and returned to the Westchester County Jail. Some seven months later, on June 29, 1962, still awaiting trial, he was released on bail. *fn2" Bail was revoked on August 29, 1962, upon the district attorney's motion following petitioner's arrest on new charges of sodomy. Once again he was committed for psychiatric observation. On September 25, the medical examiners at Grasslands Hospital found him sane. Two nights later he attempted suicide by hanging himself with a bedsheet in the County Jail. He was recommitted to Grasslands on the following day, and three weeks later, on October 18, 1962, was found by the psychiatric examiners to be incapable of understanding the proceedings against him or assisting in his own defense. On the prosecutor's motion, that finding was confirmed and petitioner was sent once again to Matteawan.

 Early in 1965, petitioner sought release on habeas corpus, claiming he was sane. Over the State's opposition, his petition was granted in May of 1965 and he was remanded to the custody of the Westchester County Sheriff for trial of the 1956 indictment. Some five months after that, on November 1, 1965, his case was called for trial. The events of the ensuing two weeks or so, against the background which has been described, encompass the due process violations requiring that this court grant the writ of habeas corpus.

 The proceedings on November 1, 1965, concerned essentially only with the scheduling of the trial's commencement, were brief. At the outset of the short discussion (all of which occupies three pages of typed transcript) the trial judge corrected a suggestion by the assistant district attorney that he (the judge) was in some measure already familiar with the case. He said (Tr. 2):


"Outside of the fact that it has been pending for a long period of time, * * * I don't know anything about it."

 Following some other brief exchanges, the case was adjourned to the morning of Wednesday, November 3, at which time, the judge said, jury selection would begin.

 When court opened on Wednesday, however, petitioner announced immediately that he had dismissed his retained counsel the night before and that he was "going to bring in Harry Blum of New York City" as substituted counsel. Asked to comment, the prosecutor said petitioner had had six or seven lawyers already; that petitioner himself had been pressing for a speedy trial; and that the People opposed further delay. There was some discussion of a pending proceeding before another judge and of a letter from petitioner marked "confidential" which had been received by the trial court that morning. Petitioner's "dismissed" counsel (Mr. Spence) asked leave to withdraw. The court stated the case would be put over until the following morning, and no longer, and that petitioner would then be expected to proceed either with Mr. Blum, with the help of Mr. Spence, or alone. "I am satisfied," the trial judge said,


"that the conduct of the defendant is perhaps an effort at delay in the trial of this case. Although I well recognize that a defendant has the right to change attorneys, I may point out for the sake of the record his presence here with a file and a copy of the Penal Law, so he must be well aware of the fact that any case which has been on this calendar this long, and in which he apparently, though I have no way of knowing what the contents of the petition for a writ of habeas corpus, he apparently must be aware of the necessity of a prompt disposition of this case on the merits. I will set it down ten o'clock tomorrow morning and I will expect Mr. Blum to be here at that time prepared to go ahead or make a statement. We have no indication in this court of the retainer other than the statement of the defendant. We do not have Mr. Blum here in the court this morning, so it is apparent from his statement that somewhere between Friday [actually, Monday], when he was last here in the court, and today, he must have contacted Mr. Blum in New York City, who must have known that the case was on the calendar, and we expect courtesy from the attorneys to be here on a calendar call. That is the decision of this court. You will have an opportunity to contact him and we will proceed to trial tomorrow morning." (Tr. 9-10.)

 When petitioner then said he had been in touch with Mr. Blum for some time before, but that an actual substitution had not been accomplished, the judge asked for a copy of an alleged letter reflecting this. Petitioner, after some rummaging, produced two letters. The judge read them, then said:


"* * * [On] Monday of this week, November 1st * * * no statement was made to this Court as to the prior contact with another attorney nor was there any indication given to this Court, and I now find that as far back as July, 1965, to be exact, July 24th, he, the defendant was in contact with another attorney, and as late as October 26; I am more than ever convinced that the defendant's tactics are those that are dilatory in nature and that they are designed to prevent this case from going to trial, and that this Court, in view of the length of the indictment in this case, insist that it go to trial and that he, Mr. Blum, appear here tomorrow morning at ten o'clock, as his counsel. I will request Mr. Spence to continue as assigned counsel, over the objections of the defendant, until that time. The case will be here tomorrow morning." (Tr. 13-14.)

 On the next morning, Thursday, November 4, the judge opened the following colloquy:


"* * * Yesterday afternoon my chambers received a telephone call from Mr. Blum, that Mr. Blum talked to Mr. Gardella, my secretary, and advised my secretary, and this of course would be hearsay on the Court's part, that he had been retained in this case by Mr. Cole's mother. I advised him that the case was on trial, or through Mr. Gardella, that the case was marked ready for trial this morning. He said that he had an engagement in Queens County. Now I am of course detailing the information which was given to me, and that he had to be in Queens County and would we please put the case over in Westchester until 2 o'clock in the afternoon. I said to him that the Cole case had been marked ready on this calendar on Monday and it had been so indicated by Mr. Cole's then counsel Mr. Spence and that the case was ready here and we would expect Mr. Blum's appearance to make his application on the record in this Court.


"I was also advised through the medium of Mr. Gardella that the matter appearing in Queens County involved a misdemeanor as contrasted with this case. Mr. Blum is not here at this time, which is ten-thirty in the morning. I will direct the picking of a jury and direct a jury to come down. Mr. Spence, I will ask you if you will stand by to assist the defendant in his own defense, if necessary.


"MR. SPENCE: I have to object to your request, Your Honor.


"THE COURT: You talked to Mr. Blum, too, incidentally?


"MR. SPENCE: Yes, sir, I did.


"THE COURT: He told Mr. Gardella that you talked to him too." (Tr. 17-19.)

 The assistant district attorney recalled again that petitioner had had seven law-yers in the nine years since his indictment, mainly involved in habeas proceedings while he was being held as incompetent to stand trial. Then the petitioner, with the species of pseudolearned bombast familiar to all who have considered matters of this kind, proceeded to argue that he had been denied a speedy trial. *fn3"

 Observing that he had "taken notice" of the argument, the judge reported that he had given instructions to bring in a jury panel. He announced that there would


"be no delay in the course of this trial other than that which has been occasioned in the Court's opinion by the dilatory tactic of the defendant in discharging his attorney on the evening of trial and the failure of his new counsel to be present in court. The United States Supreme Court has also held that under certain circumstances a man may be capable of defending himself and I think maybe this is what Mr. Cole wants to do, in view of the ableness of his argument." (Tr. 23-24.)

 With petitioner protesting and Mr. Spence ordered to stand by as an advisor, the panel arrived at 11 a.m. for the commencement of jury selection. After a few preliminary steps, which petitioner purported not to comprehend, the judge ordered a recess from 11:09 a.m. until 2 p.m., noting that the County might have been required to pay for the jurors' luncheon had the selection been completed before the time for that meal (Tr. 30). When the jurors had departed, the judge said (Tr. 30-31):


"I would like to have the record reflect that in the conversation yesterday afternoon at my chambers, Mr. Blum indicated that he would be available at two o'clock today. I also want this for the Appellate Division's perusal, as to the conduct of Mr. Cole's attorney to be here at the direction of this Court this morning, and I will hold it until two o'clock this afternoon. In the event of Mr. Blum's failure to appear, under all of the facts and circumstances, I will want this record transcribed and sent to the Appellate Division or to the Grievance Committee for their action in connection with it."

 Following their return after lunch, at 2:15 p.m., the prospective jurors were excused again, this time until the following morning. When they had gone, the trial judge placed upon the record an account by himself and his law secretary of the latter's conversations with Mr. Blum and with the judge, and of Mr. Spence's talk with Mr. Blum. Concluding this portion of the record, which is quoted in the margin, *fn4" the judge expressed doubts about the propriety of Mr. Blum's behavior, and then adjourned until the next day.

 On the morning of Friday, November 5, the case was put over again on petitioner's stated understanding, which he expressed as the product of what he had heard from the judge and the judge's law secretary, that Mr. Blum would be available to appear for him on the following Monday. *fn5" The prosecutor urged that there be no more delay, saying he had been ready for a week, and adding (Tr. 46):


"I will also advise the Court that I have had witnesses in one instance, a man coming over three thousand miles to attend the trial of this case."

 When petitioner sought leave to answer some of the prosecutor's remarks, the judge said (Tr. 47-48):


"I would rather, in the light, Mr. Cole, of the fact that you are represented by counsel, have counsel make such statements on your behalf, rather than you yourself at this time. All right, you are remanded."

 The "counsel" thus referred to may have been Mr. Blum since the judge had relieved Mr. Spence (Tr. 45) and reported the evident readiness of Mr. Blum to be substituted.

 On the following Monday, however, having finally appeared in person, Mr. Blum declined the retainer. The trial judge reminded him that he (Blum) had told the judge he had been retained. Blum suggested that "possibly * * * the wording was misconstrued." The judge flatly rejected the possibility. Then, when petitioner suggested this left him "hanging in the air," the judge said this was not so and that the trial would begin right away. Turning back to Mr. Blum, the judge said that lawyer had been "utilized" by petitioner "as a foil for delaying this case." Likewise, he said, Mr. Spence had been imposed upon by "the defendant who obviously desires to try his own case." Petitioner promptly disclaimed any such desire. The judge insisted, over further protest, noting that a defendant "has a perfect constitutional right to represent himself * * *" (Tr. 52). Then the judge chided Mr. Blum some more; relieved Mr. Spence again (Tr. 54); asked the latter to remain available to confer with petitioner; and "[directed] that the defendant * * * proceed as his own counsel." (Tr. 55.) Following a brief recess, jury selection began.

 In a later recess, the trial judge denied petitioner's motion to dismiss for failure to give him a speedy trial, taking the occasion to mention again "for the sake of the record * * * [his] opinion that [petitioner's] tactics * * * [had] been calculated to delay the trial of this case." (Tr. 72.)

 Handling his side of the jury selection process, petitioner sounded sensible enough for a while. He soon lapsed, however, into what the jurors could only view (considering the record ultimately made) as gross imposition, fantasy, or some other form of inappropriate diversion. *fn6" He indicated, though he never established, his status as a "former Federal police officer" (Tr. 77), a "Secret Service agent" (Tr. 79) "who completed an F.B.I. course" (Tr. 80), and an employee of a lavishly generous charitable foundation (Tr. 81). He scattered other irrelevancies of a potentially self-damaging nature. Mr. Spence, standing by as advisor, was led to ask the panel members whether petitioner's questions, or the manner of his asking them, might themselves have generated bias or prejudice (Tr. 100-101).

 As the trial proceeded from this dissonant first note, the judge made repeated efforts to protect and assist petitioner. The prosecutor showed restraint, objecting only in extremis to petitioner's unorthodox tactics as his own lawyer. But the "defense" was a farce. Against an evidently strong case for the prosecution, petitioner's efforts for himself served only to make exceedingly improbable that any juror would vote to let him leave the courtroom a free man.

 Having referred early, in perhaps understandable exasperation, to petitioner's "ableness" as an indication of his desire to proceed pro se, the judge soon expressed doubts about that course. Following selection of the jury, he asked in chambers whether Mr. Spence considered that petitioner was "capable of understanding [the] proceeding." (Tr. 133.) Spence said he thought so. Petitioner was more certainly of the same view (Tr. 134). The judge then stated he had received a report of an assault and attempted sodomy by the petitioner, with a boy prisoner as the victim, on the night before in the jail. He accepted the assurances of Spence and petitioner, however, as to the latter's competence (Tr. 134-35).

 When petitioner pressed for a seemingly extravagant roster of witnesses to be subpoenaed, the judge recorded his concurrence "in the opinion of Judge Dillon, as to the fact that the superficial knowledge of the law that the defendant has is a manifestation of some of the difficulties for which he was committed to the Matteawan State Hospital" (Tr. 183). Judge Dillon had expressed that view in October 1962 in justifying his determination that petitioner was incompetent then to stand trial. Petitioner proceeded to buttress such a judgment as he engaged in futile arguments with the witnesses against him; called witnesses who had no relevant knowledge or only knowledge hurtful to him; and, in a word, helped to make his own conviction a certainty. *fn7"


 The foregoing facts, at least in the judgment of this court, compel a finding that the petitioner was denied due process in his state trial.

 In the circumstances of this case, it was patently unfair (in the most fundamental sense of that vital, if sometimes overworked, legal conception) to force petitioner to trial serving involuntarily as his own bizarre and self-destructive lawyer. There was no justification for the sudden haste. And it should have been clear from the outset that this prisoner, having spent most of the nine years since his alleged crime as a certified incompetent, was among the least likely of all people in the world to be capable of defending himself effectively.

 For whatever unknowable and immaterial reason, the state trial judge seems to have reached an early conviction that the process due Mr. Cole should be weighted with a heavy presumption against any show of patience or attempt at understanding. The judge announced on Monday, November 1, 1965, that he knew nothing about the case except that it was a very old one. Two days later, when Cole came back out of the lockup to say he had dismissed his counsel, the judge said this looked like a ploy for delay. Part of the solid and experiential basis for this impression was, as the judge said, the evident lastminute character of the asserted desire to change lawyers. But then, minutes later, petitioner managed to convey that he had been seeking for weeks or months to substitute counsel, with the apparent help of his family on the outside. That revelation, somewhat contradictory of the trial court's first apperception, led immediately to an identical and reinforced judgment; the judge said he was "more convinced than ever that the defendant's tactics [were] dilatory in nature, and * * * designed to prevent his case from going to trial * * *."

 That prompt certainty is especially remarkable because no attempt was made to determine whether there were any grounds for it more secure than a few seconds of unenlightening colloquy. Petitioner was a prisoner. He had already "served" nine years without a trial. For most of that time he had been "exposed * * * to extraordinary hardships, and caused * * * to suffer indignities, frustrations and dangers, both physical and psychological, he would not be required to endure in a typical prison setting." United States ex rel. Schuster v. Herold, 410 F.2d 1071, 1078 (2d Cir. 1969). Assuming, arguendo and dubitante, he was sane in any pertinent sense, what conceivable benefit could he have sought by "dilatory tactics"? The record suggests none. The trial judge stated none. Nor did the judge spend any time at all talking to petitioner - whether in the form of "cross-examination" or otherwise - to expose the motives prompting the proposed change of counsel.

 The need to go ahead at top speed was trivial. The case was nine years old. Petitioner rather than the State had been the one pressing for a trial. As the prosecutor said in a post-trial affidavit, "the trial of the defendant occurred more on his insistence than on the part of the People * * *."

 Having been denounced as a temporizing obstructionist on Wednesday, November 3, petitioner was put to trial (with himself as egregiously incompetent counsel) on Monday, November 8, 1965. But even that constricted period, including only two business days, was not given as an assured and uninterrupted time when he (in jail), or others for him, might nail down arrangements for substituted counsel. Instead, being informed that petitioner seemed on the verge of retaining Mr. Blum, the judge adjourned the case only from Wednesday to Thursday morning. On Thursday morning, recording his information that petitioner's mother had succeeded in retaining Blum, the judge ordered the jury panel brought to the courtroom; received information that petitioner had before then switched lawyers more than once during his nine years of imprisonment without a trial; and took the occasion to express once more his disapproval of such "tactics."

 When petitioner proceeded to orate about the Constitution - and about the scarcely frivolous thought that he had suffered injurious delay - the judge proposed to act right away on the ironical jest that the prisoner's legal talents reflected an obvious desire to defend himself. A few minutes later, however, the judge was informed that Mr. Blum was expected that afternoon, and he adjourned the trial until then. In the afternoon, Blum did not appear. The trial, the judge then announced, would begin the next morning. He also took pains at this point to record that he had been mistaken in saying earlier in the day that Blum had been retained as counsel by petitioner's family on the outside. Having corrected his misunderstanding of what a court clerk, familiar with court business, had told him, the judge remanded petitioner. Nobody stopped, then or thereafter, to inquire whether petitioner, so long imprisoned, might reasonably or possibly have garnered the same sort of misinformation. Nobody tarried, either, to think how or by whom petitioner would be represented at the trial scheduled for the next morning in light of the confusion which had seemingly been afflicting both the prisoner and the court.

 On the next morning, Friday, November 5, the pall of uncertainty was, if anything, thickened. Blum was reportedly expected on Monday, November 8. Petitioner, making explicit that he was relying (understandably) on what the court had told him, said he was counting on Blum to appear for him on Monday. Nothing was done, if anything could have been done, to correct the grounds for what turned out to be a mistaken expectation. The prosecutor contributed a show of asserted public hurt, by no means an impressive instance of its kind, and petitioner was silenced when he sought to answer because, the judge said, he was "represented by counsel * * *." With Spence having been relieved and Blum yet to appear, it is not possible to know what that was intended to mean to the petitioner as he was being remanded for the weekend before his trial.

 When the long-awaited Mr. Blum finally appeared on Monday, the judge made clear his view that this attorney had not handled his role in the business with entire punctiliousness. Then, however, he dismissed Blum as petitioner's hapless "foil," and proceeded immediately to the trial in which petitioner, protesting, played out his grim burlesque as counsel pro se.

 It is impossible and unimportant to know whether the jurors perceived petitioner as a fool, a faker, a psychotic, or some variant or combination. Any of such likely appraisals was consistent under the court's charge with a guilty verdict. And the prosecution's evidence, enhanced rather than impaired by petitioner's efforts, appears to have been powerful. Two youths in their early twenties (11 and 13 years old, respectively, at the time of the alleged crimes) gave direct, circumstantial, seemingly matter-of-fact accounts of petitioner's sordid assault upon the younger of them. Their cross-examination by petitioner was worse than useless for him. If this left his doom incompletely sealed, the possibility of a miracle disappeared as he paraded before the jury a trio of ostensible defense witnesses whose conceivably relevant knowledge ranged from nothing at all to some probably hurtful details. *fn8"

 Although the seemingly inevitable verdict leading to a sentence of 15 to 20 years required scarcely more than an hour of jury deliberation, it need not have been, in the hands of moderately competent counsel, "a very simple case." See United States v. Mitchell, 354 F.2d 767, 769 (2d Cir. 1966). Petitioner's known history, extending from a time close to the date of his alleged crimes over long years of incarceration, would have alerted any lawyer in a few seconds to potentially substantial questions concerning sanity - both when the acts charged occurred and at the time of trial. It is arguable that the patent evidence before him required the trial judge to raise such questions on his own motion, especially where defendant was conducting his own tragically comic "defense." Cf. Overholser v. Lynch, 109 U.S.App.D.C. 404, 288 F.2d 388, 393 (1961), rev'd on other grounds, 369 U.S. 705, 82 S. Ct. 1063, 8 L. Ed. 2d 211 (1962); People v. Gonzalez, 20 N.Y.2d 289, 295, 282 N.Y.S.2d 538, 543, 229 N.E.2d 220 (1967) (concurring opinion); N.Y.Code of Criminal Procedure ยง 658. Passing that, the point is of immediate consequence because it underscores the obviously urgent need this petitioner had for the services of a trained, objective attorney. *fn9" This factor weighs heavily against the haste with which petitioner was rushed to the trial of his own case.

 All the pertinent factors taken together, and considered in the light of recent and controlling precedents, compel a judgment that this petitioner was denied the due process of law when he was refused a further adjournment for the procurement of counsel. It is clear, of course, that we must not allow the right to counsel to be wickedly or perversely exploited as a device for obstruction. United States v. Llanes, 374 F.2d 712, 717 (2d Cir.), cert. denied, 388 U.S. 917, 87 S. Ct. 2132, 18 L. Ed. 2d 1358 (1967), and cases cited. There is an urgent public interest, which we are not adequately vindicating these days, in the decently expeditious administration of criminal justice. This interest must be part of the reckoning, along with asserted grounds for delay, as trial judges make the compendious judgments required every day for the handling of criminal calendars. The sudden, unexplained announcement of a defendant that he wants a new lawyer, made at the outset of, or during, a trial, need not be permitted to stop the wheels of justice. The task of weighing the defendant's interest in counsel of his choice, of estimating whether an alleged change of mind is genuine or a stunt, of balancing opposed needs of the public and the prosecutor's office - such matters call for the sensitive appraisal of the particular facts of individual cases. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964). Like other aspects of criminal proceedings, this one inevitably demands a considerable measure of reliance upon the good sense and discretion of trial judges. United States v. Mitchell, supra, 354 F.2d at 767.

 But the Constitution imposes a momentous limit: to insure that the right to counsel will serve as an effective reality, it commands that a defendant, in situations like the one here, be "given a reasonable opportunity to retain counsel of his own choice * * *." United States ex rel. Davis v. McMann, 386 F.2d 611, 620 (2d Cir. 1967), cert. denied, 390 U.S. 958, 88 S. Ct. 1049, 19 L. Ed. 2d 1153 (1968); United States ex rel. Higgins v. Fay, 364 F.2d 219 (2d Cir. 1966); United States v. Mitchell, supra ; United States v. Johnston, 318 F.2d 288 (6th Cir. 1963).

 The series of adjournments in this case - a grudging, unnerving half-day at a time - fell short of anything that might possibly be thought reasonable in the circumstances. Cf. United States ex rel. Davis v. McMann, supra, 386 F.2d at 611, 619, 620; United States v. Mitchell, supra, 354 F.2d at 768; United States v. Johnston, supra. The state had held petitioner as its incompetent, untried prisoner for over nine years. There was no trace of adequate reason - and respondent has yet to suggest any - why another week or month would have made a meaningful difference.

 The deprivation petitioner claims was more starkly unreasonable than that in any of the foregoing cases. This ground in itself requires issuance of the writ he seeks.


 A subject touched in the preceding discussion merits isolation and separate emphasis. The state trial record is filled with grounds for grave, but unexplored, questions as to petitioner's sanity, both at the time of the events in 1956 and during the trial nine years later. Though the matter is not free from doubt, I hold that the trial court's failure to deal adequately with this problem supplies independent grounds for issuance of this court's writ of habeas corpus. Whether or not this is so, the state court's own (and plainly well-founded) doubts on this score add to the gravity of the error in making petitioner serve as his own defense lawyer.

 The trial judge not only raised questions as to petitioner's competence even to stand trial (let alone defend himself); he also saw fit to put on the record his concurrence in the views of another judge who had found petitioner incompetent three years earlier. This troublesome matter could not be dismissed merely by taking the curbstone views of a dismissed (and evidently long-suffering) defense lawyer and of petitioner himself. Nor did it matter that another judge, some six months before the trial, had ruled with petitioner (over the State's opposition) that he had become competent to be tried. That could hardly be dispositive in the case of a man who in the space of a month in 1962 had (1) been found competent, (2) attempted suicide, and (3) been locked up again for what turned out to be almost three more years before being found capable once again of participating in his own defense.

 This was, in short, the clearest kind of case in which the trial court was required to hold a hearing on petitioner's competence to stand trial - even with counsel. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); United States v. Collier, 399 F.2d 705 (7th Cir. 1968); Pouncey v. United States, 121 U.S.App.D.C. 264, 349 F.2d 699 (1965); People v. Gonzalez, 20 N.Y.2d 289, 293, 282 N.Y.S.2d 538, 541, 229 N.E.2d 220 (1967). The failure to do that is, under the cited cases, a fatal constitutional flaw in the conviction.

 Opposing that view, respondent urges (correctly) that the question is one which has not been exhausted in the state courts. But if there ever was a case where reliance upon the exhaustion doctrine would be a hollow exercise in etiquette, this is it. There is no suggestion of any meaningful thing other than more delay to be accomplished by remanding this fully developed issue to the state courts. Cf. United States ex rel. Lusterino v. Dros, 260 F. Supp. 13, 17 (S.D.N.Y.1966). Respondent does say that the New York tribunals might at this late date "order a nunc pro tunc competency hearing," as was done in People v. Hudson, 19 N.Y.2d 137, 278 N.Y.S.2d 593, 225 N.E.2d 193 (1967). The short answer is that such a course would be an absurdity. We are explicitly informed that the trial judge and other participants have nothing to offer in the way of "contemporaneous observations" (id. at 140, 278 N.Y.S.2d 593, 225 N.E.2d 193) beyond what the transcript conveys. It is not conceivable that any reliable finding could be made now as to petitioner's competence almost four years ago. There is no basis whatever for avoiding the squarely apposite command of Pate v. Robinson, supra, that the State choose between releasing petitioner and affording him a new trial, to begin with an inquiry into his competence. There is, in a word, no reason in the State's own interest for burdening "its judicial calendar" with an issue like this, "which is predetermined by established federal principles." Roberts v. La Vallee, 389 U.S. 40, 43, 88 S. Ct. 194, 196, 19 L. Ed. 2d 41 (1967); see also Pope v. Harper, 407 F.2d 1303 (9th Cir. 1969); Thomas v. Cunningham, 335 F.2d 67, 69-70 (4th Cir. 1964).

 The circumstances all combine to make applicable the principle that exhaustion is not a jurisdictional condition, but a matter for discriminating judgment - to be guided always by respectful deference to the rightful province of state tribunals, but not to be trivialized by holding mechanically that every claim under the Federal Constitution must be rehearsed in state court before it may be vindicated in the federal courts. Fay v. Noia, 372 U.S. 391, 419-420, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Williams v. Coiner, 392 F.2d 210, 213 n. 2 (4th Cir. 1968).

 To summarize, this court concludes that either of the two grounds outlined above - the substantial denial of the right to counsel and the failure to hold a hearing on competence - would suffice to sustain the petition. *fn10" Accordingly, the application will be granted. Petitioner is to be released from confinement under the sentence he has been serving unless within thirty days from this date, the State proceeds to retry him. Should respondent appeal within fifteen days from this date, this court's order is stayed pending expeditious prosecution of the appeal, and subject, of course, to other or different directions by the Court of Appeals.

 It is so ordered.

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