United States v. Dougherty

• Decision Date: 30 June 1972
• Docket Number: No. 24318-24324.,24318-24324.
• Citation: 473 F.2d 1113
• Parties: UNITED STATES of America v. Michael R. DOUGHERTY, Appellant. UNITED STATES of America v. Michael SLASKI, Appellant. UNITED STATES of America v. Robert T. BEGIN, Appellant. UNITED STATES of America v. Dennis J. MOLONEY, Appellant. UNITED STATES of America v. Joseph F. O'ROURKE, Appellant. UNITED STATES of America v. Arthur G. MELVILLE, Appellant. UNITED STATES of America v. JoAnn MALONE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.2d 1113 (1972)

UNITED STATES of America v. Michael R. DOUGHERTY, Appellant.

UNITED STATES of America v. Michael SLASKI, Appellant.

UNITED STATES of America v. Robert T. BEGIN, Appellant.

UNITED STATES of America v. Dennis J. MOLONEY, Appellant.

UNITED STATES of America v. Joseph F. O'ROURKE, Appellant.

UNITED STATES of America v. Arthur G. MELVILLE, Appellant.

UNITED STATES of America v. JoAnn MALONE, Appellant.

Nos. 24318-24324.

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 1971.

Decided June 30, 1972.

Rehearing Denied October 26, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Messrs. Addison M. Bowman, Washington, D. C., and Philip J. Hirschkop, Alexandria, Va., with whom Mr. William E. McDaniels, Washington, D. C. (all appointed by this Court), was on the brief, for appellants.

Mr. Roger M. Adelman, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, U. S. Atty., were on the brief, for appellee. and Mr. John F. Evans, Asst. U. S. Atty., and Messrs. Thomas C. Green and Stephen M. Schuster, Jr., Asst. U. S. Attys., at the time the record was filed, also entered appearances for appellee.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and ADAMS,^* Circuit Judge, United States Court of Appeals for the Third Circuit.

Rehearing Denied in No. 24318 October 26, 1972.

LEVENTHAL, Circuit Judge:

Seven of the so-called "D.C. Nine" bring this joint appeal from convictions arising out of their unconsented entry into the Washington offices of the Dow Chemical Company, and their destruction of certain property therein. Appellants,¹ along with two other defendants who subsequently entered pleas of nolo contendere,² were tried before District Judge John H. Pratt and a jury on a three count indictment alleging, as to each defendant, one count of second degree burglary, 22 D.C.Code § 1801(b), and two counts of malicious destruction of property valued in excess of $100, 22 D.C.Code § 403. On February 11, 1970, after a six-day trial, the seven were each convicted of two counts of malicious destruction. The jury acquitted on the burglary charges but convicted on the lesser-included offense of unlawful entry. The sentences imposed are set forth in the margin.³

Appellants urge three grounds for reversal as follows: (1) The trial judge erred in denying defendants' timely motions to dispense with counsel and represent themselves. (2) The judge erroneously refused to instruct the jury of its right to acquit appellants without regard to the law and the evidence, and refused to permit appellants to argue that issue to the jury. (3) The instructions actually given by the court coerced the jury into delivering a verdict of guilty. On the basis of defendants' first contention we reverse and remand for new trial. To provide an appropriate mandate governing the new trial, we consider the second and third contentions, and conclude that these cannot be accepted.

I. The Record in District Court

The undisputed evidence showed that on Saturday, March 22, 1969, appellants broke into the locked fourth floor Dow offices at 1030 -15th Street, N.W., Washington, D.C., threw papers and documents about the office and into the street below, vandalized office furniture and equipment, and defaced the premises by spilling about a bloodlike substance. The prosecution proved its case through Dow employees who testified as to the lack of permission and extent of damage, members of the news media who had been summoned to the scene by the appellants and who witnessed the destruction while recording it photographically, and police officers who arrested appellants on the scene.

Initially, the court appointed separate counsel for each defendant. Following their arraignment on June 20, 1969, all save appellant Robert Begin elected interim joint representation by Philip Hirschkop, Addison Bowman and Caroline Nickerson. Mr. Begin was represented by Edward Bennett Williams. All attorneys were court-appointed.

At the pre-trial conference held on January 29, 1970, in his chambers, Judge Pratt indicated he had received a letter from Mr. Hirschkop to the effect that appellants JoAnn Malone, Arthur Melville, and Joseph O'Rourke no longer wished to be represented by counsel. On his own behalf, appellant Begin had written the Court requesting that the appointment of Mr. Williams be terminated, and that he be permitted a pro se defense. Judge Pratt deferred a ruling on the pro se motions in order to give the matter further consideration, observing that to waive counsel

is not quite as easy as merely getting up and saying that you want to represent yourself. You\'ve got the matter of the waiver being knowing and intelligent, and we are going to take testimony on that; and furthermore, the possibility of prejudice, not only to themselves but also to their co-defendants. (Tr. 3)

Later in the conference he indicated how important he felt the lawyer's role was likely to be in achieving tranquility at trial:

Let me emphasize as strongly as I can that the way this case is handled is presumably my responsibility, but the decorum in the courtroom — I\'m talking particularly about the defendants themselves — will be affected to a great degree by the advice and example that they get from their own lawyers. (Tr. 14).

The day before, it seems, Judge Pratt had attended a seminar on the problems of disruption encountered in multi-defendant trials, and he was concerned that "there have been rumors that maybe some disruptive tactics are going to be employed." (Tr. 15, 17⁴). Defense counsel assured him that they knew of no such rumors and that they anticipated no disruptive behavior. In any event, Judge Pratt scheduled a hearing for February 3, 1970, on the four defendants' requests as a matter preliminary to the trial.

At a "supplementary" conference the next day, January 30, the Judge acceded to Mr. Williams's request that his associate, William McDaniels, be substituted as Begin's counsel of record. Mr. Williams's request stemmed from statements of emphatic, indeed vitriolic, dissatisfaction with Mr. Williams's representation contained in Begin's motion for a pro se defense.

At the February 3, 1970, hearing on the pro se motions, the four original movants were joined by appellant Dougherty. For approximately three-quarters of an hour the court heard from the five defendants and from their lawyers. The judge showed particular interest in the defendants' education, and specifically whether any of the five had had formal legal training. None had, although appellant Begin asserted he had "taken pains to familiarize (himself) with courtroom procedure." In general, the testimony showed that the five movants were quite articulate and highly educated. It also appeared that all five movants — indeed all defendants save appellant Slaski — were associated with a religious order, either at that time or in the recent past and, in varying degrees, had been active in work among the poor and underprivileged, in this country and in Latin America.

After a brief recess, the court denied defendants' motions in an oral opinion, set forth in the margin.⁵ The judge indicated that he was not troubled by defendants' general educational background, nor, importantly, by their motivation. However, he emphasized their lack of formal legal training, the multi-defendant context of the trial, and the seriousness of the charges. The interplay of those factors he felt created too great a risk of disruption of the trial, and risk of jury prejudice against movants and their co-defendants. After the judge delivered his ruling, there was some confused interchange between the court, counsel and several defendants. At Mr. Hirschkop's request, court was recessed in order that counsel and defendants could determine how to proceed in light of the judge's ruling.

When court reconvened after lunch, all defendants were present and a panel of prospective jurors sat in the rear of the courtroom. At that time the remaining four defendants, Catherine Melville, Dennis Moloney, Michael Slaski and Bernard Meyer, made oral motions to represent themselves. These new motions were prompted in large part by the judge's earlier emphasis on prejudice to co-defendants with counsel as a ground for denying the original motions. After some discussion between the court and the defendants, out of the presence of the veniremen, the judge, treating the four new motions as timely made, formally denied them for the reasons given in his oral opinion.

Some collateral matters were then disposed of, including a request — denied — by Mr. Hirschkop that Judge Pratt disqualify himself. When the court began its voir dire examination of prospective jurors, there was some dispute about the judge's decision to question the jurors himself rather than to follow the procedure of examination by counsel, but appellants do not bring that issue into this appeal. Similarly, appellants do not complain of the presence or absence of certain questions for the prospective jurors, about which there was controversy at the time.

Selection of the jury was reasonably rapid, requiring only a part of the afternoon of Feb. 3 and part of the next morning. As noted, the court conducted the voir dire. Defendants were, however, permitted to exercise their peremptory challenges in propria persona.

The trial formally began on the afternoon of February 4. Judge Pratt required that motions, objections, and examination of witnesses be made through counsel. He did, however, agree to permit each defendant to make a five minute opening statement and to testify, in narrative form, at reasonable length without a specific time limit. After the prosecution's opening statement, Mr. Hirschkop made a brief statement on behalf of all defendants. Then five of the defendants — including appellants Dougherty, Begin and Arthur Melville — made opening statements.

The...