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UNITED STATES EX REL. THOMAS v. ZELKER

June 22, 1971

UNITED STATES of America ex rel. Norman THOMAS, Petitioner,
v.
Hon. John ZELKER, Warden, Green Haven State Prison, Stormville, New York, Respondent


Frankel, District Judge.


The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

Convicted after a one-day bench trial on May 6, petitioner was sentenced on July 10, 1968, to concurrent terms of 6 to 18 years for robbery and 5 to 15 years for attempted rape. In his pro se petition for habeas corpus, he made a number of seemingly footless contentions plus a more plausible assertion that his state representation by Legal Aid counsel had been below the modest minimum the Federal Constitution has been held to guarantee. The latter charge appeared sufficient to warrant the assignment of counsel here for its fuller airing. The assignment was accepted by Melvin D. Kraft, Esq., who has been devotedly effective by the highest standards. Petitioner's claims have been organized, explicated and explored in an evidentiary hearing. For reasons unknown to the state trial court and unknowable anywhere without the efforts made here on his behalf, it is now evident that petitioner's "purported representation by counsel was such as to make the trial a farce and a mockery of justice * * *." United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949). Accordingly, his petition will be granted and he will be set free unless the State is able at this late date to proceed swiftly to a retrial.

 I.

 At about 4:00 a.m. on October 18, 1967, petitioner was seized by two policemen on the roof of a Bronx apartment building where, according to the evidence against him, he was attempting to rape a woman he had just robbed. As this court has observed in an earlier opinion appointing counsel, the scene thus recounted was a damning one for the petitioner. Nevertheless, it is not disputed that the conflict between the testimony of the alleged victim and that of petitioner, who took the stand to defend himself, was sharp and crucial. The prosecutrix, a lady of 50 or so, possessed of a criminal record and possibly vulnerable in other respects in her accusatory role, told of having stopped for a drink at a place called the Home Cafe following a spat with her "boyfriend" who had driven her home from her night-shift job as a restaurant cashier. According to her testimony, she left the cafe shortly before 4:00 a.m.; walked to her nearby apartment building; rang for the elevator; and was then accosted by petitioner, whom she had never seen before and who came "springing * * * out of nowheres." She testified that petitioner demanded her money; she gave him a $20 bill, which was all she had; and then, with him holding an open knife to her throat, she went as his prisoner to the roof, where the attemped rape and arrest ensued in the succeeding minutes.

 Petitioner's story, which needs telling only in equally broad terms for our purposes, was that he had cashed his wife's relief check (his wife being in the hospital at the time) earlier in the day, accounting for the $20 bill; that he had known the alleged victim for about two years; that he was in Archer's Bar *fn1" (not the Home Cafe) at 3:30 a.m. making a telephone call to his sister, and saw the complainant there at the time; that she followed him out when he left and offered him her favors for a $10 fee. Then, he testified, she had taken his $20 bill, promising to change it, and, with him following some distance behind under her instructions, disappeared around a corner, seemingly in process of defrauding him. It was after that, he said, that he caught up with her in the building lobby, where he "grabbed her by the arm and * * * asked her was she trying to be slick." Skipping other details, petitioner told that, although he had taken his money back, the complainant's renewed invitation and her report of her sister's being in her apartment with company led to the rooftop scene in which he was soon discovered. But he denied that he was about to have intercourse when the police arrived.

 It appears that petitioner was brought before a judge in the Bronx on the morning of his arrest, that he denied any wrongdoing at that time, but that there was no hearing on probable cause then or thereafter. It also appears that he was assigned Legal Aid counsel and that an attorney named Richter, whom he never saw again, spoke to him hurriedly on that occasion. Petitioner was remanded then, and has been locked up ever since.

 From the morning of October 18 until December 15, no lawyer came to speak to petitioner about his plight. He was indicted on November 1, and was in court to enter his plea of not guilty on that day. Thereafter, he came to court several times to hear that his case was being postponed, evidently "represented" for these purposes by a series of Legal Aid attorneys, but never having an opportunity to consult with any of them.

 At some time in the month of November, a young Legal Aid lawyer named Robert Phillips was assigned by the agency to take charge of petitioner's case. On or just before November 30, Phillips obtained from petitioner's wife information for a bail-reduction application, which was "successful" in that the amount was lowered, but not enough to bring about petitioner's release.

 On December 15, 1967, petitioner had his first and only conference with Phillips. They talked for about a half-hour. In addition to protesting his innocence, petitioner gave Phillips a list of prospective witnesses and an account of how he thought each could help vindicate him:

 
(1) Olen Jones, night bartender at Archer's Bar, who would tell of seeing both petitioner and the prosecutrix there on the early morning in question.
 
(2) Victor Goldstein, a neighborhood friend, who would tell of having introduced petitioner to the prosecutrix well before the time of the alleged crimes.
 
(3) David Blecher, owner of a check cashing agency, who would corroborate the story that petitioner had cashed his wife's check on October 17, 1967, arguably accounting for the $20 bill found on him and demonstrating that there was no motive for robbery.
 
(4) Mrs. Dorothy Alexander, petitioner's sister, who would testify that he had called her on the early morning of October 18, saying he was at Archer's Bar and was coming over to see her -- a course of conduct familiar in their fraternal relationship.
 
(5) Miss Carol Holloway, who would say petitioner had retained her as a babysitter on the night of October 17, 1967, paying her $10, and thus, arguably, adding to the evidence that he had cashed a check and had ...

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