United States v. Plattner

• Decision Date: 31 March 1964
• Docket Number: No. 166,Docket 28377.,166
• Citation: 330 F.2d 271
• Parties: UNITED STATES of America, Appellee. v. Raphael PLATTNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

330 F.2d 271 (1964)

UNITED STATES of America, Appellee. v. Raphael PLATTNER, Defendant-Appellant.

No. 166, Docket 28377.

United States Court of Appeals Second Circuit.

Submitted November 18, 1963.

Decided March 31, 1964.

Donald F. McCaffrey, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., for Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for appellee.

Raphael Plattner, defendant-appellant, pro se.

Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.

MEDINA, Circuit Judge:

Upon his plea of guilty before Judge Abruzzo in the United States District Court for the Eastern District of New York, Raphael Plattner was convicted of transporting in interstate commerce a stolen motor vehicle in violation of Title 18, U.S.C. §§ 2 and 2312, and on June 20, 1957, he was sentenced to imprisonment for two and one-half years. Neither at the time of sentencing nor in the judgment of conviction was any statement made to the effect that the term of imprisonment would run concurrently with the state prison sentences then being served by Plattner. After failing, in 1961, to obtain a mandamus directing that the federal sentence be served concurrently with the state sentences, Plattner, on May 8, 1962, filed a petition for a writ of error coram nobis, alleging that his plea of guilty had been induced by a promise of the prosecutor, an Assistant United States Attorney, that Plattner would either receive a suspended sentence or a direction that the federal and state sentences be served concurrently. The relief sought was resentencing in accordance with the alleged promise or, alternatively, for leave to withdraw the original plea of guilty. On May 14, 1962, Judge Abruzzo granted a hearing, to be held on June 26, 1962 and, without the knowledge or consent of Plattner, assigned an attorney to represent him. In letters to the Clerk of the District Court, dated May 15, and May 19, 1962, Plattner requested permission to appear at the hearing personally. He explained: "Who will testify in my stead? Who is to summon and examine my witnesses? How, in my absence, is it possible to adequately cross-examine the Government's witnesses?"

At the hearing on June 26, 1962, assigned counsel for Plattner, in order to obtain time to interview witnesses, requested and was granted an adjournment to July 16, 1962. However, his request that Plattner be permitted to remain in Federal Detention Headquarters so that he would be accessible for consultation was denied, and Plattner was ordered returned to the State Prison in Auburn, New York. Plattner alleges that he then requested the Court to relieve assigned counsel and to allow him to represent himself in all the future coram nobis proceedings. We are informed that the Court Reporter took no notes of what was said at the hearing on June 26, 1962, but it sufficiently appears in the record before us, and is not disputed, that Plattner "expressed the desire to be his own counsel," but the Court "thereupon appointed counsel from Legal Aid to represent him because petitioner was not schooled in the law."

After a trial of the issues the Court held against Plattner, his petition for the writ of error coram nobis was dismissed, and Plattner appeals. There was no opinion below, other than a brief statement that the Court did not believe the testimony of Plattner and his witnesses.

I

As we hold that a defendant on the trial of a criminal case, including a coram nobis proceeding at which the defendant is present and witnesses are to be examined and cross-examined,¹ has a right to conduct and manage his own case pro se, we reverse the order appealed from and remand the case. Moreover, we hold the right to act pro se as above stated is a right arising out of the Federal Constitution and not the mere product of legislation or judicial decision. Thus we would be required to remand the case, even if no prejudice to Plattner were shown to have resulted from the refusal to permit him to act pro se.²

Under the Fifth Amendment, no person may be deprived of liberty without due process of law. Minimum requirements of due process in federal criminal trials are set forth in the Sixth Amendment. They include the right of the accused to be informed personally of the accusation, to be confronted by witnesses against him, and to have compulsory process for obtaining witnesses in his favor. Implicit in both amendments is the right of the accused personally to manage and conduct his own defense in a criminal case.

The framers of the Sixth Amendment recognized that a defendant in a criminal case is not likely to be sufficiently learned in the law effectively to assert all of his guaranteed rights.³ They understood that excessive emotional involvement in the outcome of his case might paralyze the accused in his ability to organize his defense, examine and cross-examine witnesses, and present cogent argument in support of his cause.⁴ Therefore, to buttress and supplement all the other rights of a defendant charged with crime, the final clause of the Sixth Amendment protects the right of the accused "to have the Assistance of Counsel for his defence."

This safeguard was surely not intended to limit in any way the absolute and primary right to conduct one's own defense in propria persona. Nor is the existence of this right made doubtful by the circumstance that the now all but universal requirement of the assignment of counsel to indigent defendants⁵ is the development of a later generation and more enlightened views. Indeed, and strangely enough, there would probably have been no denial of Plattner's right to act pro se had the Court not been so accustomed in these recent years to assign Legal Aid counsel or other lawyers to defend those indigent defendants who had no means to pay counsel of their own choosing.

Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92 (1789), passed by the First Congress and signed by President Washington one day before the same Congress was to propose the Sixth Amendment, provided "that in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein." (Emphasis supplied.) This statute gives more elaborate expression to the meaning of the terse language of the Bill of Rights and indicates, we think, that the Constitutional right to "the assistance of counsel" was intended to include the right of defendants in criminal cases "to plead and manage their own causes personally." This part of the original Judiciary Act of 1789, in substantially the same language, is now embodied in 28 U.S.C., § 1654.

Rule 44 of The Federal Rules of Criminal Procedure, according to the Notes of the Advisory Committee on Rules, "is a restatement of existing law in regard to the defendant's constitutional right of counsel," and it parallels 28 U.S.C. § 1654, and provides that "If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel." (Emphasis supplied.) Thus, the continued vitality of the Constitutional right to conduct one's own defense without the intervention of an assigned attorney is reaffirmed in the statutes and rules now in force.

We also note: six state constitutions guarantee that the accused in a criminal prosecution shall have a right to be heard either by himself or by counsel or both;⁶ twenty-seven protect the right of an accused to be heard, or to defend, in person and by counsel;⁷ four provide for the right to appear and defend in person or by counsel.⁸ Thus, thirty-seven states place the right to proceed pro se on a constitutional level.⁹

In Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268, the Supreme Court stated that "The right to the assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law. * * * Essential fairness is lacking if an accused cannot put his case effectively in court. But the Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open. Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 1024, 82 L. Ed. 1461." The Supreme Court again referred to the defendant's "recognized privilege of conducting his own defense at the trial" in Price v. Johnston, 1948, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356.

II

It is not enough, however, to hold and decide that the right to defend pro se is a constitutionally protected right. The varied circumstances of the large number of cases now pouring in upon us with increasing volume makes it apparent that there should be a critical survey of the problem and a statement of the method of procedure to be followed by the trial judges in cases of indigent defendants, when dealing with the subject of who is to manage and conduct their defense.

In many cases of this type coming before appellate courts the record of the colloquy between the Court and the accused, on the subject of who is to conduct the defense, is fragmentary or non-existent. But for the praiseworthy attitude of the United States Attorney for the Eastern District of New York in this case of Plattner, in not disputing and in effect conceding that Plattner's request to be allowed to defend pro se was summarily denied and counsel assigned, we would have been required to hold our decision in abeyance on the appeal from the order dismissing the writ until after a remand for a reconstruction of the record,¹⁰ with all the attendant delay and expense. It is not too...