Clark v. Perez
| Decision Date | 21 September 2006 |
| Docket Number | No. 05 Civ. 698(SAS).,05 Civ. 698(SAS). |
| Citation | 450 F.Supp.2d 396 |
| Parties | Judith CLARK, Petitioner, v. Ada PEREZ, Superintendent Bedford Hills and Eliot Spitzer, Attorney General, State of New York, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Leon Friedman, Sharon Grobman, New York, NY, Lawrence Lederman, Michael L. Hirschfeld, Milbank, Tweed, Hadley & McCloy LLP, New York, NY, for Petitioner.
Eliot Spitzer, Attorney General for the State of New York, New York, NY, Michael E. Bongiorno, District Attorney of Rockland County, New City, NY, for Respondents.
[W]here denial of the constitutional right to assistance of counsel is asserted, its peculiar sacredness demands that we scrupulously review the record.
— Avery v. State of Alabama, 308 U.S. 444, 447, 60 S.Ct. 321, 84 L.Ed. 377 (1940).
The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not `still be done.'
— Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
Judith Clark seeks a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code, challenging her state court convictions for three counts of Murder in the Second Degree,1 six counts of Robbery in the First Degree,2 and related lesser crimes. Clark is currently serving three consecutive indeterminate terms of imprisonment of twenty-five years to life on the murder charges, running concurrent to lesser terms on the robbery charges.
Clark asserts that the court's failure to insure that she was represented at trial amounted to a Sixth Amendment violation, and for the reasons fully discussed below I agree. Clark's situation is almost unprecedented—she vigorously sought to represent herself at trial, and yet was so unwilling to abide by courtroom protocol that she remained in a cell, outside the courtroom, for the entire presentation of the prosecution's case.3 Because Clark was never appointed standby counsel, there was no one in the courtroom to represent her interests during this critical phase of the trial.
This case is not about waiving the right to counsel—Clark did knowingly and intelligently waive this right. But "there are limits to waiver . . . some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept."4 In the context of the Sixth Amendment right to counsel, a knowing waiver does not end the inquiry because a court must next determine that a defendant is "able and willing to abide by rules of procedure and courtroom protocol" in order for pro se status to be properly granted.5 Indeed, even where self-representation is properly allowed, a court must terminate pro se status if a defendant subsequently demonstrates that she is unwilling to meet these requirements. Whether pro se status is deemed impermissible at the outset of or during a criminal trial, counsel must be appointed so that a defendant is not left without any representation at all. This rule derives not only from a defendant's Sixth Amendment right but from the judiciary's "independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them."6
Judith Clark is a former radical and member of the "Weather Underground" who, with four other individuals, was charged with participating in a 1981 Brinks armored truck robbery in Nyack, New York. A Brinks guard named Peter Paige and two policemen, Officer Waverly Brown and Sergeant Edward O'Grady, were killed during the robbery, and other persons were injured by gunfire. Clark was the driver of a getaway vehicle.8
By Rockland County Indictment Number 81-825, Clark and four others were charged with three counts of second degree murder, six counts of first degree robbery, and several lesser counts of assault and larceny. In November, 1982, a motion for a change of venue filed by one of Clark's co-defendants was granted, and the entire case was removed to Orange County.9 During the arraignment and initial pretrial proceedings, Clark was represented by Susan Tipograph. Clark and her co-defendants David Gilbert and Kuwassi Balagoon then applied to forego representation by counsel and proceed pro se.
During pretrial proceedings on June 2, 1983, when Orange County Court Justice David S. Ritter was to rule on this application, the three defendants refused to be seated because they claimed "[t]he issue prior to that is [that] the police in this courthouse beat people up."10 Specifically, defendants alleged that a man "was singled out as a Black activist and the goons went and clubbed him for sitting down."11 Defendants continuously interrupted and defied Justice Ritter, and eventually he asked to have Gilbert removed. Clark said: 12 Tipograph and the other counsel also "rose and walked out and left the courtroom without [the court's] permission."13 Justice Ritter commented: "I have not excused them and their attendance is required since they are lawyers in the case who have not yet been released."14 He also noted for the record:
My efforts to conduct the questioning required by law of a defendant so that he can make a determination as to whether the waiver of counsel proposed is a knowing and intelligent waiver conducted and sought in recognition of the dangers that attend pro se representation have been frustrated by the refusal of the defendants to conform to the most rudimentary rules of order so that I could elicit the information required in order to make a ruling.15
When proceedings resumed that afternoon, the court noted Tipograph's continued failure to return to the courtroom.16 Then, the three defendants returned to the courtroom voluntarily some minutes later, and Justice Ritter warned them: "If you are to remain in this courtroom, you will do so only if you agree that you will conduct yourself in a nondisruptive fashion in conformity with basic rules of decorum that apply in this courtroom."17 Clark contested that she had been disruptive and asserted: "My purpose to be here at all was to fight for my right to represent myself because I am a freedom fighter . because I am the only one who can speak for myself and I have things to say for myself."18
Addressing Balagoon first, but directing his instruction to Clark and Gilbert as well, Justice Ritter stated:
Now, you appear before me today because you seek to represent yourself in this case and the law requires that before I rule, that I must first determine whether your request is unequivocal and whether your offer to give up your right to be represented by a lawyer is knowingly and intelligently made. If you satisfy both of those conditions, I will permit you to represent yourself. My decision will be made after I ask you a series of questions and will rely on the answers that you give in deciding whether your request to represent yourself is a knowing, intelligent and unequivocal choice. If anyone says anything in the course of this proceeding that you don't understand, call that fact to my attention and I will not go on until you understand exactly what is happening.19
After ascertaining Balagoon's capacity to proceed pro se, the court addressed the legal right of a person to defend himself:
The law recognizes the right of a person to defend himself, but the law also recognizes that such a choice may not be a wise one. Let me alert you to some of the dangers of self-representation so that you will be aware of those dangers before you finally decide whether you wish to give up your right to be represented by a lawyer.
Even the intelligent and educated layman has small and sometimes no skill in the science of law. Left without the assistance of counsel, he may be put on trial without a proper charge and convicted upon incomplete, irrelevant, or inadmissible evidence. Often the layman lacks the skill and knowledge adequately to prepare his defense, even though he may have a perfect one. Most layman require the guiding hand of counsel at every step in the proceedings against them. The right to be heard would be in many cases of little avail if it did not include the right to be heard by counsel. Without counsel, though an accused be not guilty, he faces the danger of conviction because he does not know how, to protect his rights.
Lawyers generally, as I am sure you know, are both college and law school trained before they are permitted to take the bar examination. Only those who pass the exam are licensed to practice law and the number who become trial lawyers is small. In order to adequately represent a client, a trial lawyer needs a comprehensive knowledge of the rules of evidence as well as an understanding of the art of jury selection and the art of cross-examination. Most non-lawyers do not have such education or training.
In view of the length and complexity of this case, sir, I consider it unwise for any defendant to represent himself. Despite this, I am required to permit you to represent yourself, if your choice is a knowing and intelligent one, made with awareness of the dangers of waiving counsel.
You should also be aware of the fact that if you are permitted to represent yourself, you will not receive any special favors. Rather, you will be subject to the same rules as a lawyer. Special rules are not made for those who choose to represent yourself nor can the judge become a legal advisor to the self-represented defendant. The judge's role is to remain neutral and detached.
You should also be aware that self-representation is not a license to abuse the...
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