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April 29, 1986

GREGORY JOHNSTONE, Petitioner, against WALTER J. KELLY, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: BRIEANT


Brieant, J.

 By his petition and supporting memorandum of law filed on December 3, 1985, Petitioner Gregory Johnstone, a state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On behalf of respondent, the Attorney General of the State of New York filed a memorandum of law in opposition to petitioner's application on January 21, 1986. Petitioner filed a Reply Memorandum of Law on February 4, 1986.

 Petitioner's first trial on the underlying indictment resulted in a hung jury. He was tried a second time (Fraiman, J.) and was convicted on March 17, 1982 in Supreme Court, New York County, of arson in the second degree, N.Y. Penal Law § 150.15, and burglary in the first degree, N.Y. Penal Law § 140.30. He was sentenced to concurrent indeterminate terms of imprisonment from three to nine years on each count. The Appellate Division, First Department, affirmed petitioner's conviction on December 18, 1984. Petitioner's application for Leave to Appeal to the New York State Court of Appeals was denied on April 15, 1985. State remedies have been exhausted.

 On November 16, 1980, at approximately 2:30 A.M., petitioner and two accomplices pried open the door of apartment #8 in an apartment building at 115 West 143rd Street, New York City. Once inside, they set fire to the apartment. The fire totally destroyed apartment #8 and caused damage to the apartments on the floors above. Several tenants in the building and a firefighter suffered injuries as a result of the fire.

 In support of his application for a writ of habeas corpus, petitioner interposes a Sixth Amendment claim founded on the trial court's refusal to permit petitioner to relinquish his court-appointed counsel before trial and to conduct his own defense without the attorney's assistance. Respondent acknowledges that petitioner had invoked his constitutional right to represent himself, but contends that his request properly was denied because his intentions as expressed were not unequivocal and because his purported waiver of counsel was neither knowing nor intelligent.

 Petitioner was represented in his first trial by a court-appointed attorney, Ira Van Leer. The jury failed to return a verdict and a mistrial was declared. Two months later, a jury was empaneled for a second trial on the same indictment. Mr. Van Leer remained the attorney of record for the petitioner. On January 5, 1982, the day before the commencement of the second trial, petitioner informed the court that he was dissatisfied with his present counsel and that he desired the services of a new attorney. The court denied petitioner's request. Petitioner then indicated that he wanted to represent himself at trial. In response, the court inquired into petitioner's education, age, employment and exposure to legal proceedings. (Tr. 6-7, 10). Detailing both the perils of self-representation and the comparative advantages of utilizing, cost free, the skills, training and experience of a seasoned defense attorney, the trial judge reminded petitioner of the seriousness of the crimes with which he was charged and the possible consequences of a conviction. Further, in response to the street-wise petitioner's proclamation that as a pro se defendant he would refuse to participate in the trial in his own defense and hence lay the foundations for a mistrial or reversal of the conviction (Tr. 6, 12), the trial judge explained patiently to him that he could not count on a reversal or retrial. (Tr. 6, 13). When petitioner persisted, the court conceded that he was competent (Tr. 25), but ruled that because of his age, education and vocational and legal inexperience, he was not qualified to conduct his own defense. (Tr. 27-28). The court directed Mr. Van Leer to continue as petitioner's defense counsel (Tr. 17-22) and stated for the record that the petitioner was not proceeding pro se. (Tr. 26).

 Without intending any criticism of this particular trial judge, who is well known for patience, devotion to justice and hard work, we are constrained to observe that in this era of oppressive Big Government, there is a lamentable tendency on the part of bureaucrats generally, including some judges, to undertake the task of Big Daddy, and compel persons who are sui juris to do that which is in their best interests whether they like it or not. There is an ever increasing tendency to act against individual freedom, while motivated by good intentions, based often in elitism or a perception that everyone else in the world is stupid. This "compulsory seat belts" thinking is demonstrated by much of the colloquy in this case:

 The Defendant: I don't want him [Attorney Van Leer]. Why are you bothering me? I said I do not want the man point blank. I do not want him. Why you keep bugging me about it? I don't want the man.

 The Court: You don't have the experience or the training to defend yourself.

 The Defendant: Yes, I do. I will just sit right there. (Tr. 16).

 * * * * *

 The Defendant: I don't want him.

 The Court: That may well be, but I am not going to allow you to represent ...

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