Jones v. Vacco

Decision Date02 October 1997
Docket NumberNo. 1331,No. 96-2839,D,1331,96-2839
Citation126 F.3d 408
PartiesCharles JONES, Petitioner-Appellee, v. Dennis VACCO, Attorney General of the State of New York, Respondent-Appellant. ocket
CourtU.S. Court of Appeals — Second Circuit

Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer, Gina Mignola, Assistant District Attorneys, New York City, on the brief), for Respondent-Appellant.

Barry C. Scheck, Cardozo Law School, New York City (Jonathan H. Oberman, Jane Siegel, Cardozo Law School, New York City, on the brief), for Petitioner-Appellee.

Before: WINTER and ALTIMARI, Circuit Judges, and KEENAN, District Judge *.

ALTIMARI, Circuit Judge:

The quest for justice through a fair trial frequently leads us through a complicated, confusing and often contradictory snarl of allegations. To untangle and decipher these charges, we begin with the foundational basis of the record. The importance of the record is exquisitely demonstrated by the extraordinary set of circumstances leading to this appeal.

Respondent-appellant Dennis Vacco, Attorney General of the State of New York (the "State"), appeals from a judgment of the United States District Court for the Southern District of New York (Scheindlin, J.) granting petitioner-appellee Charles Jones' petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court held that Jones was deprived of his Sixth Amendment right to counsel when the trial judge issued a ban on overnight consultation that extended over four days due to unforeseen circumstances. Finding no evidence that the ban had been rescinded and the constitutional violation "cured," the district court granted the writ of habeas corpus concluding that the state courts' affirmance of Jones' conviction was contrary to established Supreme Court precedent.

On appeal, the State challenges the district court's grant of the writ of habeas corpus. Specifically, the State contends: (1) that Jones failed to exhaust his state remedies; (2) that federal review of Jones' claim was procedurally barred; and (3) that the constitutional violation was "cured" when the trial judge rescinded the ban on consultation. We disagree and accordingly affirm the district court's grant of the writ of habeas corpus.

BACKGROUND
A. State Proceedings

In 1993, Jones was indicted for unlawfully entering the apartment of his employer, Marla Maples Trump, and taking various items of her personal property. He was charged with burglary in the second degree; criminal possession

of stolen property in the fourth degree; and criminal possession of a weapon in the fourth degree. See N.Y. Penal Law §§ 140.25(2), 165.45(1), and 265.01(1). In January, 1994, a jury trial commenced before Judge Richard Andrias in the Supreme Court of the State of New York, County of New York, Criminal Term, Part 63.

(1) The Ban on Consultation

At trial, Jones testified on his own behalf. During his cross-examination on Thursday, February 10, 1994, the trial judge declared an overnight recess and issued the following order to Jones:

The Court: All right. Now, Mr. Jones, this is a court order and [applies to] every witness. He [your attorney] is not to speak with you about ... anything because you are in the middle of cross-examination. Do you understand that?

Jones: Yes, Sir.

The jury was then excused. Due to the severe weather conditions predicted for early the next morning, a brief discussion ensued between the lawyers and the judge regarding the logistics of continuing the trial the next day. The trial judge ordered Jones' attorney, Anthony Morosco, to be in court at 9:30 the next morning and later reemphasized the point:

The Court: Mr. Morosco, I hate to see Mr. Jones go on the stand without a lawyer representing him. See you tomorrow at 9:30.

Following this exchange, Morosco, objected to the court's ban on consultation and the judge expressed confusion regarding the nature of the objection, which Morosco clarified:

Mr. Morosco: I will, your Honor, comply with your order, but also register an exception to it.

The Court: There is no exceptions [sic]. You will be here. If you want to bring your kid, you will be here.

Mr. Morosco: I am not talking about that order, Judge.

The Court: What?

Mr. Morosco: The order that the defendant not discuss the case with his attorney overnight. I most respectfully, we will comply with it, but I take an exception to it.

The Court: All right. As far as being here, you have to be here because they are in the middle of cross. Okay. Thank you. Have a nice evening.

The proceedings were adjourned with the understanding that they would continue the following morning. However, the next morning, a severe snowstorm struck the New York City area. Although the judge, prosecutors, defense counsel and Jones were able to get to court, some jurors never arrived. Notably, the court reporter did not arrive until after the proceedings were adjourned. Consequently, Jones' cross-examination could not continue and trial was adjourned until the following Monday.

On Monday morning, the trial resumed and Jones' cross-examination continued. The trial record contains a single reference to Friday's events:

Mr. Morosco: For the record, I want the record to indicate that on Friday last, severe weather conditions prevented the proceedings in this case which had been contemplated on Thursday.

The Court: Absolutely ... Not only is it [the record] clear, the record should say those of us who were here including you, your client, most of the jury, all right.

Following the three week trial, the jury convicted Jones of all charges, and on April 6, 1994, the trial judge sentenced Jones to one and one-half to four and one-half years in prison on the burglary count, and to concurrent lesser sentences on the remaining counts.

(2) The State Appellate Process

Jones appealed his conviction to the New York Supreme Court Appellate Division, First Department ("Appellate Division"). Among the twelve issues raised on appeal, Jones argued that the trial judge deprived him of his right to counsel by directing Jones not to "discuss substantive matters with his attorney during the overnight recess."

Jones' brief did not explicitly assert that the ban continued throughout the weekend.

The State conceded that the overnight ban on consultation was an error, however, it raised several arguments. The State maintained: (1) that Jones' general objection was insufficient to preserve the issue for appellate review; (2) that the error was "cured" when the Friday snowstorm prevented the proceedings from continuing the next day because the trial judge did not renew his order and Jones did not assert that the ban remained in effect over the weekend; and (3) that Jones was procedurally barred from arguing that the order remained in effect over the weekend because Jones did not request clarification of the order on Friday and did not renew his objection on Monday before the proceedings resumed. Alternatively, the State asserted that Jones did question the ban during Friday's proceedings. The State offered to prove at a reconstruction hearing that "the [trial] court expressly granted defendant's request to consult with his lawyer over the three-day weekend."

Rather than filing a reply brief, Jones responded to the State's claims at oral argument asserting that the explicit language of the court's order precluded attorney-client consultation over the weekend because cross-examination had not been completed.

On May 9, 1996, the Appellate Division affirmed Jones' conviction. See People v. Jones, 227 A.D.2d 195, 642 N.Y.S.2d 246 (1st Dep't 1996). The Appellate Division did not explicitly address Jones' alleged denial of his right to counsel, but stated that the court had considered his claim and found it to be "without merit." Jones, 227 A.D.2d at 196, 642 N.Y.S.2d at 247.

Jones applied for leave to appeal to the New York Court of Appeals. In his leave letter, Jones raised the same issues on appeal that he made to the Appellate Division. He emphasized that there had been no contact between him and his attorneys since court adjourned on Thursday evening. On June 11, 1996, Jones' application for leave to appeal was denied. See People v. Jones, 88 N.Y.2d 937, 647 N.Y.S.2d 171 (1996).

B. Federal Proceedings
(1) The Petition for a Writ of Habeas Corpus

On June 27, 1996, Jones filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of New York. Jones alleged that the trial court's ban on consultation for the duration of cross-examination, which lasted for four days due to unforeseen circumstances, had deprived him of his Sixth Amendment right to counsel.

The State opposed the petition principally raising the same objections made to the Appellate Division, and also maintaining that Jones failed to exhaust his state claim by failing to properly raise it on direct appeal before the state appellate court. Alternatively, and to the extent deemed necessary to establish a factual determination of the events of Friday, February 11, 1993, the State said it was prepared to prove that the state trial judge explicitly rescinded the ban on consultation on Friday morning. The State suggested that, in the interests of comity, a hearing on this matter should be held in the state courts.

In a memorandum opinion issued August 15, 1996, the district court determined that Jones had exhausted his state remedies and found no procedural bar to granting a writ of habeas corpus. However, based on the facts presented, the district court could not conclusively determine whether the trial judge rescinded the ban on consultation. Accordingly, the district court ordered an evidentiary hearing to be held in district court.

(2) The Evidentiary Hearing

The district court heard testimony from the state trial judge, Jones' two defense lawyers and their...

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