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UNITED STATES EX REL. COLE v. FOLLETTE

June 17, 1969

UNITED STATES of America ex rel. Frank COLE, Petitioner,
v.
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.

 I.

 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 ...

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