Legal Aid Society of New York v. Herlands

Decision Date14 June 1968
Docket NumberNo. 32419,MR-2056.,MR-1823,32419
Citation399 F.2d 343
PartiesThe LEGAL AID SOCIETY OF NEW YORK and Anthony F. Marra, Petitioners, v. Hon. William B. HERLANDS, United States District Judge for the Southern District of New York, Respondent. Lowell M. BIRRELL, Petitioner, v. Hon. William B. HERLANDS, United States District Judge for the Southern District of New York, Respondent. UNITED STATES of America, v. Lowell M. BIRRELL, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Leon B. Polsky, New York City, for The Legal Aid Society of New York and Anthony F. Marra.

Lowell M. Birrell, pro se.

Stephen F. Williams, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for the Southern Dist. of New York), for the United States.

Before FRIENDLY, SMITH and KAUFMAN, Circuit Judges.

Certiorari Denied January 13, 1969. See 89 S.Ct. 649.

FRIENDLY, Circuit Judge:

These three applications are the latest episode in the stormy voyage of United States v. Birrell, S.D.N.Y., 286 F.Supp. 885. The indictment was filed July 20, 1961, but defendant was then outside the United States and did not return until April 23, 1964. The case finally went to trial before Judge Herlands and a jury on December 4, 1967. Mr. Birrell, himself an experienced attorney, was represented by Charles N. Brower, Esq., counsel assigned under the Criminal Justice Act, with whom Martin Portnoy, Esq., of the staff of The Legal Aid Society of New York, was associated. On December 28, 1967, a jury found the defendant guilty on ten counts of selling unregistered securities and one count of conspiracy.

The court had ruled prior to trial that the issue whether the Government's case was tainted by the use of evidence derived from the many records found by another judge to have been illegally seized, see United States v. Birrell, 242 F.Supp. 191 (S.D.N.Y.1965), should be reserved for post-trial hearing in the event of conviction, United States v. Birrell, 269 F.Supp. 716, 725 (S.D.N.Y. 1967). Recognizing that this hearing would be burdensome, the court on January 4, 1968, granted Mr. Brower's application to be relieved and appointed The Legal Aid Society as sole counsel. The Society obtained the services of Leonard Sandler, Esq., as senior counsel; he was assisted by Mr. Portnoy until the latter's resignation from the staff of the Society on March 22, 1968, by another attorney-investigator, and by an investigator. At the court's instruction the Government presented its direct case in the taint hearing on February 20, 21 and 23, 1968, after which the defense was given until April 8 to prepare its cross-examination.

Just before the beginning of the taint hearing, Birrell moved to have The Legal Aid Society relieved, because of disagreements as to strategy and tactics and also because he preferred a lawyer from a large office who could and would devote himself solely to the case. Concluding that Birrell had received and would continue to receive effective representation from The Legal Aid Society, the court denied the motion. Relations between Birrell and his assigned counsel deteriorated during the three days of the Government's presentation and prior to and during the two days of cross-examination on April 8 and 9.

On April 10 Birrell again moved to relieve The Legal Aid Society, this time asking to proceed pro se. The court believed that, before it acted on the latter request, Birrell should have a medical examination to determine whether he was physically able to conduct his defense; this was done with his consent. On April 15 the physician reported there was "a history of narcolepsy, which causes the patient to fall asleep periodically for brief intervals," but that he saw no reason why Birrell could not conduct his own trial. After further efforts to explore the issue, the court found itself "unable to determine whether defendant was medically able to conduct his own defense" and denied the motion. Meanwhile Birrell had begun a state court suit against The Legal Aid Society, Mr. Carr, its attorney-in-chief, and Mr. Sandler, seeking $25,000,000 damages for malpractice.1

This led The Legal Aid Society to move to be relieved. In light of its motion, the court reopened consideration of Birrell's request to proceed pro se. He countered that he was no longer requesting that relief and, indeed, had been bluffing in seeking the opportunity. The court thereupon ordered Birrell committed to Bellevue Hospital Center to obtain an expert psychiatric opinion as to his competence to conduct his defense; Birrell declined to cooperate with the examining physicians.2

On May 24, 1968, the court denied The Legal Aid Society's motion to be relieved and what it assumed to be a renewed motion by Birrell to have it relieved. Granting that "generally speaking, a lawsuit by a client against his lawyer may be considered as an automatic and effective termination of the attorney-client relationship," the judge refused to countenance "the ploy of suing his own attorney in order to force the Court to accede to his demand for new counsel." The court pertinently cited Swope v. McDonald, 173 F.2d 852 (9 Cir. 1949) (en banc), holding that the filing by a defendant of a "palpably groundless" malpractice charge against his lawyer with the state bar association did not render ineffective the attorney's continued representation in a criminal trial. Noting that "if defendant persists in his present course of conduct making it impossible for honorable self-respecting attorneys to represent him, it may well be that his actions would amount to a waiver of the right to the assistance of counsel," the judge thought that stage had not yet been reached. At the same time he ruled adversely on Birrell's motion to reargue an order made on December 28, 1967, immediately after the verdict, which had remanded Birrell on the ground that, in light of his previous conduct, there was a substantial risk of flight, 18 U.S.C. § 3148.

Both The Legal Aid Society and Birrell now ask us to issue mandamus to require Judge Herlands to relieve the Society.3 An appeal has been taken from the order on reargument denying bail and Birrell moves pro se that counsel be assigned.

Courts of appeals must be wary lest overuse of the writ of mandamus undermine the federal policy against interlocutory review — a policy particularly weighty in criminal cases where "All our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court." Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967). They must be careful also lest by too frequent resort to the writ they take over discretionary judgments best made by the court having knowledge of and responsibility for the trial. The force of these...

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  • In re Dellinger
    • United States
    • U.S. District Court — Northern District of Illinois
    • April 4, 1973
    ...States v. McCarthy, 292 F.Supp. 937, 943 (S.D.N.Y. 1968); United States v. Birrell, 269 F. Supp. 716, 725-726 (S.D.N.Y.1967), aff'd, 399 F.2d 343, rev'd. on other grounds, 400 F.2d 93 (2d Cir. 17 As authority that hearings on all electronic surveillance issues must be held before trial, def......
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    • U.S. Court of Appeals — District of Columbia Circuit
    • June 7, 1974
    ...384 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961). As Judge Friendly explained in Legal Aid Society v. Herlands, 399 F.2d 343, 346 (2d Cir. 1968), cert. denied, 393 U.S. 1033, 89 S.Ct. 649, 21 L.Ed.2d 577 Refusal of recusation goes to the constitution of the tri......
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    • U.S. Court of Appeals — Fifth Circuit
    • August 13, 1968
  • United States v. Nolan, 27241.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 29, 1969
    ...case, the reasoning of the District Court in the case of the United States v. Birrell, 269 F.Supp. 716 (S.D. N.Y.1967); aff'd 399 F.2d 343 (2nd Cir., 1968); rev'd on other grounds, 400 F.2d 93 (2nd Cir., 1968), is particularly applicable to the present "In the Court\'s view, the question of......
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