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June 30, 1969

UNITED STATES of America ex rel. Roy C. BROWN, Petitioner,
J. Edwin LaVALLEE, Warden of Clinton State Prison, Respondent

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 For the previous history of these proceedings on a petition for habeas corpus and previous proceedings in the state and federal courts in this matter, see the memorandum of this court dated November 4, 1968. In the latter memorandum, an evidentiary hearing on petitioner's (Brown's) petition was directed. The hearing was held on March 19, 20 and 31, 1969. As a result of the evidence brought to light in the evidentiary hearing and for reasons to be hereinafter discussed, it is determined that Brown's petition must be granted.

 On April 19, 1962, a grand jury in New York County returned indictment No. 1519/62 charging that Brown "wilfully, feloniously and of malice aforethought struck and killed Robert E. Feinberg with a knife". Thereafter, pursuant to the applicable provisions of the New York Code of Criminal Procedure, the Supreme Court of New York, New York County, assigned four counsel to represent Brown in this capital case. The lawyers assigned were Andrew R. Tyler (now a judge of the Civil Court of New York), Max Leichtman, Thomas J. Flattery and Joseph Guadagno, Jr. Finally, after a plea of guilty to the charge in indictment No. 1519/62 and to cover another indictment subsequently filed in which Brown was accused of attempted murder of one Zeltin, he pled guilty to a reduced offense of murder in the second degree on January 9, 1963. On March 13, 1963, as heretofore indicated in my previous memorandum identified above, Brown was sentenced by Mr. Justice Charles Marks to a term of 40 years to life.

 In essence, Brown here contends that his plea of guilt was taken under circumstances which deprived him of his rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution. As discussed in the November 4, 1968 memorandum, he has exhausted his state remedies in regard to his contentions, which thus are ripe for resolution by this court.


 The Plea of Guilty - Findings of Fact

 The facts hereafter found are determined largely from the testimony of Brown and Max Leichtman, one of his assigned counsel. Messrs. Flattery and Guadagno of his team of counsel were not called as witnesses at the hearing. The facts are also to some extent based upon the testimony of Andrew R. Tyler and Mrs. Parker, the mother of petitioner, who were witnesses at the habeas hearing. Finally, where specifically noted, these findings to a limited degree are based upon the hearing testimony of Justice Marks and the Assistant District Attorney of New York County.

 In April, 1962, when he was indicted for murder in the first degree, Brown was barely 23 years old. The product of a broken home, he was born in Texas and raised in his early years in orphanages in the State of Louisiana. At the age of 16, he left his mother's home and joined the Army. After three years in service, he was given an undesirable discharge because of various periods of absence without leave from his Army duties. Beginning in or about 1960, he then became a drifter, going to and from various cities principally in the south and in the southwest. He came to New York City in 1961, and with certain brief interruptions lived here continuously until the time of his indictment in April, 1962.

 Shortly after counsel were assigned to represent him in the so-called "first indictment" for murder in the first degree, there ensued a number of conferences between Brown and his lawyers. At the first one, Brown discussed the events in the hotel room with the victim, Feinberg. In substance, Brown's story was that he used the knife in self-defense because the deceased was a strong, assertive homosexual. Brown also admitted to his counsel that he was questioned by the police but that they used no duress to get his statements and admissions from him. *fn1" Brown furnished the names of two individuals, one male and one female, who might be witnesses helpful in his behalf. As I understand the thrust of Leichtman's testimony, however, these witnesses were thereafter interviewed and in the opinion of assigned counsel were regarded as persons whose testimony could not help Brown.

 Sometime in the spring or summer of 1962, Leichtman paid a visit to Assistant District Attorney Vincent Dermody, who was in charge of this particular prosecution, to discuss the case. Apparently, there was the usual guarded exchange of information and views in this conference. Dermody, however, did reveal certain evidence and also said that his office would seek the death penalty. As a result, Leichtman and his fellow counsel formed the opinion that the State's case against Brown was overwhelming. In particular, Leichtman was shown and impressed by some police photographs of the body of the deceased. These photographs indicated to him at least that there were many knife slashes, including most particularly a large slash across the neck, on the body of the deceased. In other words, these photographs convinced Leichtman and through him his co-counsel that the condition of the deceased's body in itself would tend to negate any claim of self-defense.

 Nevertheless, I find that from the very first conference and consistently thereafter Roy Brown maintained to his lawyers that he wished to go to trial and "establish his innocence" upon the theory of self-defense. In effect, as will be seen hereinafter, Brown has never deviated from this view. As the summer and fall of 1962 wore on, Brown's attorneys consistently advised and indeed importuned him to permit them to arrange a plea to a lesser included offense. They warned Brown that Dermody had told them that the State would seek the death penalty. Despite the understandable position of counsel, Brown consistently told them that he did not wish to plead to a lesser offense because of his opinion that he could convince a jury that he killed Feinberg in self-defense.

 In the meantime, in May or June, 1962, counsel had decided to attempt to have Brown's mother come to New York and discuss the case directly with her son. Mr. Tyler entered into correspondence with Mrs. Parker with this purpose in mind. Finally, Mrs. Parker obtained funds from some source not indicated on the record and traveled to New York City where she arrived on January 7, 1963. She was met at a hotel here in town by Mr. Leichtman. Leichtman then took her to the office of Mr. Tyler where there was a conference between the mother and assigned counsel. At this conference, all counsel present expressed their unanimous view that Brown should plead guilty to the lesser offense of murder in the second degree to cover both the "murder one" indictment and the subsequent indictment for attempted murder. It appears that Leichtman and perhaps other counsel offered their view that Justice Marks probably would be constrained to impose a sentence of from 20 years to life. Leichtman and other counsel, however, were careful to make it clear that there had been no commitment or promise to this effect. It was explained to Mrs. Parker that if such a sentence were imposed, there was a likelihood under New York law and practice that Brown would be able to serve his sentence in 13 or 14 years. Parenthetically, it should be noted that sometime prior to this conference, Dermody had apparently indicated to defense counsel a willingness to permit Brown to plead to the lesser included offense to cover both indictments or, at the very least, to make such a recommendation to Justice Marks.

 Sometime shortly after noon on January 7, Mrs. Parker was taken by defense counsel to the Tombs at White Street where her son was incarcerated awaiting trial or disposition. She was brought into the meeting room where her son was present. Arrangements were made to have her confer first with her son in the presence of a matron while counsel withdrew out of earshot across the room.

 Not surprisingly, the interview between mother and son was difficult and emotional. Mrs. Parker repeatedly told her son of the opinion of counsel that he should plead guilty to the lesser included offense. She pleaded with him to accept their advice. At first, Brown stubbornly refused to do as his mother asked, saying that he believed that he had a good defense to the charge. Finally, his mother became tearful and indeed hysterical. In words or substance, she stated that she did not wish to have to come back to New York to claim his dead body after a trial. Brown thereupon sought to comfort his mother. More important, he told her that he would agree to her request that he follow the advice of counsel and plead guilty.

 Brown's mother then joined counsel in the meeting room at the Tombs. She advised them that her son had finally indicated a willingness to plead. Counsel then conferred with Brown and arranged to have him sign a letter, which is in evidence, dated January 7, 1963. This letter, I find, was written out by Andrew Tyler and then in effect copied by Mr. Brown pursuant to the instructions of all counsel. Its contents are brief and interesting:

"Mr. Leichtman, Mr. Flattery, Mr. Tyler.
After talking with my mother, Mrs. Parker, and talking with you, I am ready to plead guilty to the crime of murder two to cover all indictments against me provided the plea is taken before Judge Charles Marks.
You are authorized to tell this to Mr. Vincent Dermody, the Assistant District Attorney.
Very truly yours,
Roy C. Brown"

 Two days later on January 9, 1963 Brown and three of his four assigned counsel appeared before Justice Marks for purposes of plea. After the traditional colloquy between the court, counsel and Brown, wherein the answers on their face all would seem to support a valid plea, Brown's plea of guilty to the lesser included offense of second degree murder was accepted. It should be noted that Justice ...

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