2 F.3d 1236 (2nd Cir. 1993), 1574, Brown v. Doe

Docket Nº:1574, Docket 93-2149.
Citation:2 F.3d 1236
Party Name:Samuel BROWN, Petitioner-Appellant, v. John DOE, Warden, Respondent-Appellee.
Case Date:August 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1236

2 F.3d 1236 (2nd Cir. 1993)

Samuel BROWN, Petitioner-Appellant,


John DOE, Warden, Respondent-Appellee.

No. 1574, Docket 93-2149.

United States Court of Appeals, Second Circuit

August 19, 1993

Argued May 17, 1993.

Page 1237

[Copyrighted Material Omitted]

Page 1238

[Copyrighted Material Omitted]

Page 1239

Robert N. Isseks, Goshen, NY (Alex Smith, Middletown, NY, of counsel), for petitioner-appellant.

John S. Edwards, New City, NY, Asst. Dist. Atty. (Kenneth Gribetz, Rockland County Dist. Atty., Deborah Wolikow Loewenberg, Sondra S. Holt, Asst. Dist. Attys., of counsel), for respondent-appellee.

Before: WINTER and JACOBS, Circuit Judges, and MUKASEY, District Judge. [*]

JACOBS, Circuit Judge:

Petitioner Samuel Brown appeals from a judgment of the United States District Court for the Southern District of New York (Broderick, J.) denying a petition for a writ of habeas corpus. A New York Supreme Court jury convicted Brown of three counts of felony murder, four counts of robbery in the first degree and other related lesser felonies for his participation in the robbery of a Brink's armored truck in October 1981. Brown is now serving a sentence of 75 years to life. The case received widespread and sensational publicity, primarily because the fleeing robbers shot and killed two police officers and because the robbery allegedly was committed on behalf of a revolutionary group known as the Weather Underground.

Brown argues on appeal chiefly that his due process rights were violated because he was repeatedly and brutally beaten after his arrest, and suffered a broken neck which he claims remained untreated for over two months. Brown offers additional grounds for relief, including claims of ineffective assistance of counsel, incompetence to stand trial, prejudice arising from extraordinary security measures used at trial, and judicial bias. Because none of these arguments affects the validity of Brown's conviction, we affirm.


On October 20, 1981, a Brink's armored truck was robbed while stopped at the Nanuet Mall in Rockland County, New York. During the course of the robbery, the robbers shot two of the Brink's guards, killing one. The robbers fled in a red van and a light-colored Honda. The van was abandoned in a nearby parking lot, and its passengers left the lot in a U-Haul truck, heading toward the Village of Nyack. The U-Haul was stopped by several Nyack police officers at an entrance to the New York State Thruway. While the officers were speaking with one of the U-Haul's passengers, Kathy Boudin, the back of the truck opened and several gunmen emerged firing automatic weapons at the police officers. Two police officers were killed and a third was wounded. The surviving officer and three other witnesses identified Brown as one of the gunmen.

All of the robbers, with the exception of Boudin, managed to escape the scene. Brown jumped into the rear seat of the waiting Honda, which then led police on a high speed chase. The Honda, unable to negotiate a turn, crashed into a concrete barrier. Three persons were inside, including Brown. Brown was found wearing several layers of clothing, including three pairs of pants, and carrying in his sock a nine millimeter ammunition clip with 14 live rounds. Recovered from the Honda were a pistol, ammunition,

Page 1240

money bags, a ski mask, a bullet proof vest, various articles of clothing, and more than $800,000.

Brown was removed from the Honda semi-conscious and taken to Nyack Hospital where he was treated for injuries apparently caused by the accident. Although medical records indicate that Brown was given a cervical collar to wear, they also indicate that his neck was not broken as of October 20, 1981. Brown was discharged from Nyack Hospital the next day and taken to the Rockland County Jail. Brown claims that over the next several days guards entered his cell and severely and repeatedly beat him, causing him to sustain a broken neck. Brown's attorney asked to have him relocated to a hospital outside Rockland County, whereupon he was moved to the federal correctional facility in Otisville, New York.

Brown claims he was deprived of adequate medical attention for at least two months after his neck was broken. Sometime in December 1981 his injury was diagnosed, and in January 1982 he received corrective surgery. At a pretrial hearing on a motion to dismiss the indictment, the trial court found that Brown's injuries "could only have occurred while he was in custody." People v. Brown, 125 Misc.2d 132, 134, 479 N.Y.S.2d 113, 115 (N.Y.Co.Ct.1984). The trial court further found that Brown established "that he was, in fact, a victim of brutality during his detention at the Rockland County Jail." Id.

During the ensuing investigation into the robbery, several of the robbers were identified as then current or former members of the Weather Underground, a violent revolutionary group. It was alleged that this robbery was committed to finance the group's objectives.

Brown was represented by a series of attorneys in this case, the first four of whom he describes as having "radical aspirations." His first attorney was Susan Tipograph, who also represented one of Brown's co-defendants. Ms. Tipograph was later relieved as Brown's counsel because of the evident likelihood of a conflict of interest. Brown then agreed to be represented successively by Alton Maddox, Chokwe Lumumba and Evelyn Williams. Ms. Williams was substituted as counsel in March 1982 and continued to represent Brown through June 1983, although during this time Brown consulted briefly with at least two other lawyers. According to Brown, his four successive "revolutionary lawyers" pursued a confrontational defense strategy jointly with counsel for his co-defendants in furtherance of "radical political beliefs," a strategy that "made the idea of a plea [bargain] for their client deeply repugnant to them."

Although his counsel opposed any cooperation with law enforcement authorities, Brown initiated a series of ten interviews with FBI agents in November 1981, keeping those encounters secret from his revolutionary counsel. Ms. Williams learned of the interviews in December 1982 and asked for permission to be relieved. The trial court initially denied her motion, and then granted it in June 1983. Shortly thereafter, Robert N. Isseks, Brown's fifth lawyer (or possibly seventh) was appointed to represent Brown, and represents him on this habeas petition.

A pretrial hearing, conducted to determine the voluntariness of the statements made by Brown to the FBI, established that, at each interview, Brown waived his right to counsel in writing, and that Brown chose to exclude his revolutionary counsel from the interviews because he feared that his life would be endangered if the "Movement" became aware of his cooperation with the FBI. The state trial court nevertheless suppressed Brown's statements to the FBI because the court found that Brown's right to counsel under the New York State Constitution had been violated. No evidence resulting from the FBI interviews was used to convict him.

For trial purposes, Brown's case had been severed from that of all his co-defendants except Boudin. Throughout the proceedings, he and Boudin protested that they were unable to receive a fair trial because of their alleged association with a revolutionary movement and the tremendous publicity surrounding these crimes. Their successive motions for a change of venue resulted in the proceedings being moved first from Rockland County to Orange County, and later to Westchester

Page 1241

County, where the case came to trial in March 1984.

During the course of jury selection, defense counsel questioned Brown's physical and mental capacity to stand trial. Brown said he was experiencing pain and was apprehensive about being imprisoned in the Rockland County Jail during trial. A court-ordered examination of Brown in March 1984 resulted in his three-week detention at the Westchester County Jail for further evaluation while jury selection continued. In April 1984, the court held a competence hearing and determined that Brown was capable of proceeding with the trial.

While the competence proceedings were ongoing, co-defendant Boudin pleaded guilty to second degree murder and first degree robbery. Brown moved for a mistrial. The trial court re-examined the prospective jurors as to their knowledge of the guilty plea and its effect on their ability to render a fair and impartial verdict, and denied the motion. After jury selection, Brown made another motion for a change of venue, based upon pretrial publicity, the publicity surrounding Boudin's plea and sentence, and the heightened security measures evident at the courthouse. The motion was denied and the trial proceeded to a guilty verdict on June 14, 1984.

Shortly thereafter, the trial court conducted a hearing on Brown's motion to dismiss the indictment on the grounds that the police brutality violated due process and that he was denied meaningful representation by counsel. The court found that Brown's constitutional rights had been violated by the beating, but declined to dismiss the indictment because Brown failed to establish "some causal linkage between the illegality and the evidence offered to secure his conviction." People v. Brown, 125 Misc.2d at 134, 479 N.Y.S.2d at 115.

All of the grounds offered for habeas relief were presented by Brown in his direct appeal and in his post-conviction applications, and all were uniformly rejected. Having exhausted his state remedies, Brown petitioned the district court for a writ of habeas corpus.

In a decision reported at 803 F.Supp. 932 (S.D.N.Y.1992), the district court rejected all grounds for habeas relief with the...

To continue reading