Appeal from denial of petition for habeas corpus by the United States District Court for the Southern District of New York (Tyler, J.). The Court of Appeals (Gurfein, Circuit Judge) held petitioner's waiver of counsel invalid under the totality of the circumstances, including his probable incompetence, vacated the judgment and remanded for further proceedings.
Friendly, Timbers and Gurfein, Circuit Judges.
A New York State prisoner, Francisco Martinez, appeals from the denial of his petition for a writ of habeas corpus by the District Court for the Southern District of New York (Tyler, Judge) after an evidentiary hearing.
Martinez was arrested on February 15, 1966 for allegedly participating in an attempted robbery and assault committed six weeks earlier. The trial, which he conducted pro se in circumstances to be related, began on August 4, 1966. On August 12, 1966, after deliberating for 5 1/2 hours, the jury found appellant guilty of attempted robbery, attempted grand larceny, assault (second degree) and possession of a dangerous weapon. He received concurrent sentences of 7 1/2 to 15 years on October 4, 1966. He has served about nine years.*fn1
In 1951 Martinez had been certified as a mental defective and undifferentiated moron with an I.Q. of 63 by the Wassaic State School where he had been committed. In 1954 he had been certified by Bellevue Hospital to Kings Park State Hospital where he remained until 1956. Between 1959 and 1963 he had been tested and examined repeatedly at the various state penal institutions where he was serving a sentence. Only a year before his arrest he had been admitted to Bellevue Psychiatric Hospital on application of his brother-in-law. The hospital reports indicate that he was "emotionally severely disturbed [with a] psychotic character disorder . . . with marked sociopathic trends." Six days later he escaped from Bellevue. The hospital sought an adjudication that he was mentally ill, but he refused to respond. His escape took place only 11 months before the crime charged. At sentence, after some of these facts had been revealed to the state trial judge for the first time, a defense motion for a psychiatric examination was denied.*fn2
Immediately following his sentencing, appellant attempted suicide by swallowing pins and razor blades. The history of psychotic episodes continued. Prison records in 1967 indicated that Martinez was "psychotic and dangerous to himself and others." In 1970, he was committed to the Dannemora State Hospital for the mentally ill for six months. Reports indicate that he had periods of normalcy with remissions. Both doctors who testified for him at the coram nobis proceedings in the state court and in the federal hearing below believed that he was incompetent to waive counsel at his trial in 1966.
The events that led to his "decision" to waive counsel and proceed pro se may now be recounted as a tragedy of errors. Neither the Legal Aid Society nor the trial judge knew of Martinez' history of mental illness.
Martinez first appeared with attorney Gottlieb in March 1966 in an effort to reduce bail. He soon dismissed Gottlieb because Gottlieb had erroneously informed him that his appeal in an earlier case had been abandoned. He was given an adjournment to get another lawyer.
Petitioner's mother then hired a Mr. Garcia as counsel. He appeared for petitioner on May 5, 1966, requesting a two-week adjournment to reach petitioner's family. The attorney refused to move for reduction of bail, and petitioner himself made the motion, without success. Two weeks later, petitioner appeared in court alone and requested the court to appoint counsel for him, as he had dismissed Mr. Garcia because his fees were too high and because he had not moved for bail or otherwise "represented his interests." Petitioner's brief indicates that he did not discuss the merits of his case with either Mr. Garcia or Mr. Gottlieb.
The court then appointed the New York Legal Aid Society to represent Mr. Martinez. On May 24 attorney-of-record Leopold interviewed petitioner for the first time. During this interview, Martinez told Mr. Leopold that he had not committed the crimes charged, and that he had alibi witnesses. He failed to tell Mr. Leopold their names, however. From May 24 until August 3, no attorney communicated in any way with Mr. Martinez. Attorney Leopold went on a month-long vacation in July, and, as the District Court found, "communications within the Legal Aid Society appear to have broken down."
Petitioner's case was called for trial several times in early summer, but the correctional authorities failed to produce him or notify him that his case had been called, and Legal Aid did not appear for him. In late June, Attorney Cropper of Legal Aid agreed to a trial date of July 5 for Martinez, apparently unaware that Mr. Leopold was then on vacation and that the Legal Aid investigation was pending. Predictably, on July 5, no lawyer appeared. On the district attorney's mistaken assurances to the court that he had been so informed by Legal Aid, the case was marked as "ready for trial." Later in July, Attorney Selwyn of Legal Aid, simply on the knowledge that Leopold would be back by then, requested an August trial date, and the date of August 4, 1966 was set for trial.
On August 3, after his return from vacation, Attorney Leopold appeared before the calendar judge and requested a two-week adjournment because the Legal Aid Society's normal investigation was still pending, and there was an ongoing effort to procure a distant witness. The request was denied on the ground that there had already been 16 adjournments in the case. The same day, Leopold interviewed Martinez again, informing him for the first time that his case was set for trial the following day. At this time Martinez provided Leopold with ...