Johnstone v. Kelly
| Decision Date | 29 April 1986 |
| Docket Number | No. 85 Civ. 9444-(CLB).,85 Civ. 9444-(CLB). |
| Citation | 633 F. Supp. 1245 |
| Parties | Gregory JOHNSTONE, Petitioner, v. Walter J. KELLY, Superintendent, Attica Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
James C. LaForge, Philip L. Weinstein, New York City, for petitioner.
Robert Abrams, Atty. Gen., State of N.Y. by Joyce Andren, Asst. Atty. Gen., New York City, for respondent.
By his petition and supporting memorandum of law filed on December 3, 1985, Petitioner Gregory Johnstone, a state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On behalf of respondent, the Attorney General of the State of New York filed a memorandum of law in opposition to petitioner's application on January 21, 1986. Petitioner filed a Reply Memorandum of Law on February 4, 1986.
Petitioner's first trial on the underlying indictment resulted in a hung jury. He was tried a second time (Fraiman, J.) and was convicted on March 17, 1982 in Supreme Court, New York County, of arson in the second degree, N.Y. Penal Law § 150.15, and burglary in the first degree, N.Y. Penal Law § 140.30. He was sentenced to concurrent indeterminate terms of imprisonment from three to nine years on each count. The Appellate Division, First Department, affirmed petitioner's conviction on December 18, 1984. Petitioner's application for Leave to Appeal to the New York State Court of Appeals was denied on April 15, 1985. State remedies have been exhausted.
On November 16, 1980, at approximately 2:30 A.M., petitioner and two accomplices pried open the door of apartment # 8 in an apartment building at 115 West 143rd Street, New York City. Once inside, they set fire to the apartment. The fire totally destroyed apartment # 8 and caused damage to the apartments on the floors above. Several tenants in the building and a fire-fighter suffered injuries as a result of the fire.
In support of his application for a writ of habeas corpus, petitioner interposes a Sixth Amendment claim founded on the trial court's refusal to permit petitioner to relinquish his court-appointed counsel before trial and to conduct his own defense without the attorney's assistance. Respondent acknowledges that petitioner had invoked his constitutional right to represent himself, but contends that his request properly was denied because his intentions as expressed were not unequivocal and because his purported waiver of counsel was neither knowing nor intelligent.
Petitioner was represented in his first trial by a court-appointed attorney, Ira Van Leer. The jury failed to return a verdict and a mistrial was declared. Two months later, a jury was empaneled for a second trial on the same indictment. Mr. Van Leer remained the attorney of record for the petitioner. On January 5, 1982, the day before the commencement of the second trial, petitioner informed the court that he was dissatisfied with his present counsel and that he desired the services of a new attorney. The court denied petitioner's request. Petitioner then indicated that he wanted to represent himself at trial. In response, the court inquired into petitioner's education, age, employment and exposure to legal proceedings. (Tr. 6-7, 10). Detailing both the perils of self-representation and the comparative advantages of utilizing, cost free, the skills, training and experience of a seasoned defense attorney, the trial judge reminded petitioner of the seriousness of the crimes with which he was charged and the possible consequences of a conviction. Further, in response to the street-wise petitioner's proclamation that as a pro se defendant he would refuse to participate in the trial in his own defense and hence lay the foundations for a mistrial or reversal of the conviction (Tr. 6, 12), the trial judge explained patiently to him that he could not count on a reversal or retrial. (Tr. 6, 13). When petitioner persisted, the court conceded that he was competent (Tr. 25), but ruled that because of his age, education and vocational and legal inexperience, he was not qualified to conduct his own defense. (Tr. 27-28). The court directed Mr. Van Leer to continue as petitioner's defense counsel (Tr. 17-22) and stated for the record that the petitioner was not proceeding pro se. (Tr. 26).
Without intending any criticism of this particular trial judge, who is well known for patience, devotion to justice and hard work, we are constrained to observe that in this era of oppressive Big Government, there is a lamentable tendency on the part of bureaucrats generally, including some judges, to undertake the task of Big Daddy, and compel persons who are sui juris to do that which is in their best interests whether they like it or not. There is an ever increasing tendency to act against individual freedom, while motivated by good intentions, based often in elitism or a perception that everyone else in the world is stupid. This "compulsory seat belts" thinking is demonstrated by much of the colloquy in this case:
The Court terminated the discussion by saying:
The Court: I see no indication that the Defendant is not competent. He seems perfectly competent. I think he is being stubborn and is not thinking things through. I see no indication he is not competent. (Tr. 25)
At page 27 of the record, the prosecutor remonstrated tactfully with the Court to no avail. The Appellate Division affirmed petitioner's conviction without even discussing the point.
On January 6, 1982, before trial began and outside the presence of the jury, the petitioner asked to make the opening statement and to begin cross-examination of the witnesses. (Tr. 33-34). The court denied the request. Over petitioner's protests, Mr. Van Leer conducted petitioner's defense. Petitioner engaged in colloquy with the trial judge during the course of trial, but never while the jury was present. Finally, at the close of evidence, Mr. Van Leer informed the trial judge that petitioner wished to make his closing argument personally. Although questioning petitioner's qualifications, the Court relented and permitted petitioner to make the summation. After two days' deliberation, the jury returned a verdict of guilty. The conduct of the trial was in all respects fair and petitioner's guilt was established clearly, beyond a reasonable doubt.
The Sixth Amendment guarantees a criminal defendant not only the right to the assistance of counsel but also the corollary right to dispense with counsel and to present his defense in the manner of his choosing. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This right to represent oneself against the marshalled forces of government, to undertake personally to convince a jury of one's innocence, embodies principles of individual integrity, autonomy and self-expression so fundamental to our system that its abrogation calls into question the entire fabric of an individual's innate personal liberty.
The Constitution is a seamless web of rights and liberties — not conferred but guaranteed — against the intrusive, offensive and sometimes paternalistic presence of Big Government. When a criminal defendant elects to stand at the Bar in his own defense, and he does so knowingly, voluntarily and unequivocally, a court is bound by the Constitution to honor that election, however suicidal it may appear to be. At trial, the criminal defendant is confronted with the possible loss of his liberty, his dignity and a host of other things; on this occasion perhaps above all others, he is entitled to speak freely, to control his own future and exercise his free will. That this course may hasten and/or lengthen his incarceration is of no moment and should not concern the trial judge. The Sixth Amendment affords no lesser rights to the foolish than to the wise. If freely chosen, the right to go to trial without counsel is protected by Constitutional, and indeed natural, law.
We next consider whether petitioner, being fully informed, deliberately and voluntarily waived assistance of counsel and unequivocally sought to undertake his own defense. The trial court did not find that he did not do so, nor is there anything in the record which would suggest such a finding. There is no indication in the trial record that the petitioner, then aged 18, was under any legal or mental disability that impaired his capacity to manage his own affairs. Indeed, his appointed counsel informed the judge that petitioner had familiarized himself with the indictment, the minutes of the first trial and other significant documents relating to his defense. Once apprised of petitioner's intentions to reject Mr. Van Leer's free representation, even in the absence of substitute counsel, the trial judge entered into a discourse with petitioner explaining the pitfalls of...
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Pitts v. Redman
...than succumbing to the "paternalistic" forces of "Big Government" and forcing unwanted representation on a defendant. Johnstone v. Kelly, 633 F.Supp. 1245, 1248 (S.D.N.Y.), rev'd, 808 F.2d 214 (2d Cir.1986), cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96 L.Ed.2d 699 The circuits are divided......
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U.S. v. Hammer
...the court is bound by the Constitution to honor that election, however suicidal it may appear to be. Johnstone v. Kelly, 633 F.Supp. 1245, 1248 (S.D.N.Y.1986)(Brieant, J.), rev'd on other grounds, 808 F.2d 214 (2d Cir.1986),10 cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96 L.Ed.2d 699 (1987......
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Johnstone v. Kelly, 160
...the District Court dismissed Johnstone's petition upon a finding that the constitutional violation was harmless error. 633 F.Supp. 1245, 1250-51 (1986). Because the District Court erred in applying a harmless error test to a violation of the right to self-representation, we reverse the Dist......
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Torres v. U.S.
...case, her non-participation meant that she presented no defense (as opposed to merely a "suicidal" or "foolish" one). Johnstone v. Kelly, 633 F.Supp. 1245, 1248 (S.D.N.Y.), rev'd on other grounds, 808 F.2d 214 (2d Cir.1986). Further, she argues that the Constitution would not be able to cou......