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UNITED STATES v. ROGERS

May 7, 1979

UNITED STATES of America
v.
Reginald ROGERS, Stanley Harris, Brian May, Tony Miller, George W. Thomas and Michael Leon Raife, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

The government has moved, following declaration of a mistrial in this criminal action, for an order disqualifying Israel I. Davidson, Esq., from further appearing as attorney for Michael Raife, one of the two defendants on trial. The motion is opposed by Raife, who asserts his right, presumably under the sixth amendment, to be represented by counsel of his choice, as well as that of his attorney to practice before this court. Although the application appears to be without precedent in the published reports, the court is persuaded, after carefully reviewing controlling principles of law and the events which resulted in the abortive first trial of this action, that the defendant's right to competent counsel, the government's right to a fair opportunity to present its case, and the court's obligation to ensure the integrity of the judicial process require that the relief sought be granted.

 FACTUAL BACKGROUND

 On August 3, 1978, a complaint was sworn out in this district charging "Michael Doe" and "Tony Doe" a/k/a "Tony Miller" with participation, along with four others, in the June 13 armed robbery of the Community National Bank branch at Fort Hamilton in Brooklyn. Arrest warrants thereafter issued and, on August 8, Michael Raife was brought before a United States Magistrate. At that time Raife completed a financial affidavit ("CJA 23") and the Magistrate appointed one Herbert Heitner, Esq., to represent him. On August 15 Raife was indicted with Miller and the four other defendants for conspiracy and the June 13 armed bank robbery. All six defendants were then arraigned before the Magistrate and pleaded not guilty. Heitner apparently represented Raife up to the time of arraignment; although no formal order of substitution was entered, he seemingly withdrew soon thereafter.

 On August 23 the defendants and counsel appeared before the court for conference regarding motions, discovery matters and setting of a trial date. *fn1" Raife was then represented by Davidson, whom he had retained with the assistance of his family. Trial was set for November 6 and counsel were, in accordance with the usual practice of the court, advised of informal discovery procedures. While government counsel soon thereafter informed Davidson that she intended to introduce at trial certain statements allegedly made by Raife to FBI agents following his arrest, no motion to suppress was ever filed; in fact, it appears that the need for a suppression hearing was raised in the first instance by the prosecutor. Similarly, it was not until November 1, five days before trial was set to commence, that Davidson first sought a bill of particulars, and not until November 6 that he moved for a severance and a change of venue, although the latter application was based upon newspaper accounts of the robbery that had been published in September.

 During the suppression hearing, which commenced on November 6 and continued on November 9, and jury selection on November 13, it became apparent that Davidson experienced serious hearing difficulty. Although he denies having any "hearing incapacity," Tr. (11/9/78), at 291, Davidson, who is nearly 84 years old, did ask to be permitted to sit closer to the bench and witness stand than the usual arrangement in the courtroom allowed. The request was honored to the extent feasible: the courtroom furniture was rearranged so that Davidson could place himself alongside counsel table no more than three to five feet from the stand (the usual position of government and defense were reversed), and the courtroom loudspeaker system was raised to maximum volume. (Miller's attorney, who complained that Davidson's constant requests for repetition of the voir dire examination were interfering with his obligations to his own client, was permitted to seat himself at the opposite end of the defense table. Tr. (11/9/78), at 297.)

 Because this physical reordering of the courtroom was at best a makeshift response to Davidson's obvious hearing impairment, the court, at the government's request, inquired of Raife whether he was satisfied in going forward under the circumstances. The following response was elicited:

 
"Your honor, I have complete confidence in Mr. Davidson. And not only that, my family is unable to afford any other lawyer financially. And that is why my father is working two jobs now, because the bail that was taken to get me out of the retaining they had me in. So it broke my family practically. And now we are practically going to sell the car in order to finish paying the fee, which Mr. Davidson was kind enough to accept it for a small charge.
 
"THE COURT: I understand that. But you are aware of a possible problem, but you are consenting to go ahead?
 
"THE DEFENDANT RAIFE: Yes, sir.
 
"THE COURT: That's all I ask. You understand everything that is being done here to try to minimize the problem, but it may not be 100 percent successful. And you are aware of that?
 
"THE DEFENDANT RAIFE: Yes, sir." Tr. (11/9/78) at 295-96.

 The trial in chief commenced on November 14 and continued through the following day. On the morning of November 16, the third day of trial, however, prior to the resumption of testimony, one member of the jury expressed to the courtroom clerk her doubts about Davidson's ability to represent his client, and asked for an opportunity to address the court. The matter was taken up with counsel, who agreed that I would discuss with the juror in chambers outside their presence but on the record the source of her concern, explain to her that a criminal defendant has the right, if within his means, to retain counsel of his choice, and that Raife had selected Davidson as his attorney, and then inquire whether she could render her verdict solely on the basis of the evidence produced during trial.

 After the juror made plain to me that she could not do so, the minutes of her remarks were read to counsel, and further inquiry was made this time in counsel's presence to determine the contours of the judgment she had formed and whether she had discussed the situation with other members of the jury. Tr. (11/16/79), at 621-77. She then explained that her concern focused on Davidson's hearing problem, demeanor and courtroom behavior, and indicated that "the jurors are upset and he's (Davidson's) the center of all the talk in the (jury) room." Id. at 680. The defendant Miller then moved for a mistrial; when, after extended discussion, I expressed an inclination to grant the application, the government moved for a mistrial as to Raife as well. Decision on this last application was reserved pending an In camera voir dire of the remaining members of the jury. Because a significant number of jurors shared the first juror's opinion, a mistrial was declared, although over Davidson's strenuous objection. Id. at 776-79. When the court further indicated ...


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