Klein v. Smith, 584
| Decision Date | 03 May 1977 |
| Docket Number | D,No. 584,584 |
| Citation | 559 F.2d 189 |
| Parties | Julius F. KLEIN, Petitioner-Appellant, v. Harold SMITH, as Superintendent of the Attica Correctional Facility, Attica, New York, Respondent-Appellee. ocket 76-2107. |
| Court | U.S. Court of Appeals — Second Circuit |
Lawrence W. Kessler, Hempstead, N. Y., for petitioner-appellant.
Charles M. Newell, Asst. Dist. Atty., Suffolk County, Riverhead, N. Y. (Henry F. O'Brien, Dist. Atty., Kevin J. Crowley, Asst. Dist. Atty., Suffolk County, Riverhead, N. Y., of counsel), for respondent-appellee.
Before MESKILL, Circuit Judge, MARKEY, Chief Judge, * and MOTLEY, District Judge. **
Julius F. Klein appeals from two orders of the United States District Court for the Southern District of New York (Owen, J.). The first order, dated October 15, 1974 denied petitioner's application for a writ of habeas corpus after an evidentiary hearing; the second order, on July 20, 1976, reaffirmed the 1974 order after a reopened evidentiary hearing. We affirm.
Petitioner Klein is presently serving a life sentence in a New York state prison, having been convicted on October 15, 1969 of murder in the first degree after a jury trial in the Supreme Court, Westchester County. 1 His conviction was affirmed without opinion by the Appellate Division, Second Department on December 20, 1971, and was further affirmed without opinion by the New York Court of Appeals on February 14, 1973.
On October 9, 1973, petitioner filed his application for a writ of habeas corpus in the District Court. Insofar as here relevant, he alleged in his moving papers that his conviction had been obtained in violation of his rights to the effective assistance of counsel and to due process of law. By opinion of December 12, 1973, Judge Ward ordered that a hearing be held on the petitioner's claim. Such a hearing was held before Judge Owen on four days in the spring of 1974. Judge Owen denied the writ in an opinion filed on October 15, 1974. Petitioner then filed a notice of appeal to this court, but the matter was returned to the District Court for determination of a motion to reopen the hearing because of newly discovered evidence. Judge Owen granted that motion on April 29, 1976. The hearing was held on four days in the spring and early summer of 1976, and, on July 20, 1976, Judge Owen orally reaffirmed his denial of the writ. The facts developed in the hearings are set forth below.
On February 20, 1969, William Reuther was arrested and charged with the 1966 murder of one Irene Brandt. He was incarcerated in the Suffolk County Jail and remained there at least through October of 1969.
Reuther engaged the New York City law firm of Bobick and Deutsch to represent him. Within a few weeks of his arrest, however, he lost confidence in his attorneys and sought to make a deal with the prosecutor in charge of the case, Maurice Nadjari, then Chief Assistant District Attorney of Suffolk County. Nadjari initially refused to make any deal, indicating that Reuther would have to "tell all he knew" about the Brandt murder in order to receive any kind of favorable consideration. After considering Nadjari's position, Reuther agreed to testify before the grand jury and at trial concerning the Brandt murder in return for the prosecutor's agreement to accept a plea of guilty to first degree manslaughter and to recommend a sentence of from two to four years. As a result of this agreement, Reuther testified before the grand jury in March. On March 22, 1969 petitioner Klein was indicted for the same crime.
Klein also retained Bobick and Deutsch to represent him. 2 Evidently counsel anticipated that both defendants would be tried together. Neither Nadjari nor Reuther informed Bobick or Deutsch of the fact of Reuther's cooperation until mid-September of 1969, some two weeks prior to the date of trial. Mr. Nadjari did inform Reuther that, since he had decided to plead guilty in return for his cooperation, he would, at some point before trial, have to secure other counsel to avoid any possible conflict of interest. However, he felt under no obligation to inform defense counsel of such a possible conflict. For his part, Reuther refused to immediately discharge Bobick and Deutsch, on the ground that alleged threats communicated to him from Klein, who was in custody at the Clinton Correctional Facility in Dannemora, New York, had made him afraid that his life would be in jeopardy if his cooperation were disclosed.
During the period from his February indictment and arraignment until he discharged his attorneys on September 24, 1969 and requested court-appointed counsel, Reuther met with his attorneys on numerous occasions, when they made the 100 mile trip from their offices in New York City to the Suffolk County jail. During the same period of time, he also met with representatives of the Suffolk County District Attorney's office, both in the jail and also in the District Attorney's office. At no time prior to September 20, 1969, when he refused for the first time to meet with his attorneys, did Reuther give either Mr. Bobick or Mr. Deutsch any inkling of his past or prospective cooperation with the prosecutor.
Reuther's activities with respect to his attorneys, on the one hand, and the prosecutorial staff, on the other hand, were the subject of some factual dispute at the hearing before Judge Owen. In the face of conflicting testimony from Reuther, Bobick and Deutsch, Judge Owen credited Reuther's testimony that he had never discussed with his attorneys either his or Klein's defense strategy for the impending murder trial. Judge Owen apparently found credible Reuther's explanation that the bulk of the conference time was devoted to preparation for Reuther's defense in an unrelated kidnapping case. Despite his counsel's general assertions that they discussed all aspects of the murder defense, Judge Owen credited Reuther's explanation that he was merely assured that the lawyers "would take care of everything". Such a finding by the trial judge, so inextricably dependent upon first-hand observation of the witnesses at the hearing, should clearly not be disturbed by this court. Rule 52(a), Fed.R.Civ.P.
Judge Owen also found credible the testimony of both Reuther and Nadjari to the effect that they never discussed with each other petitioner Klein's defense plans or strategy. Moreover, at the hearing, Judge Owen specifically asked Mr. Nadjari the following question:
Q. With respect to the meetings that you had with Reuther, did you learn indirectly from any of your staff, any of your detectives, the substance of any conversations that Reuther had with his attorneys in which they were telling him, according to their testimony, how they proposed to defend the case?
Mr. Nadjari responded as follows:
A. No, your Honor. As a matter of fact, Reuther had indicated to me I think it was at the first meeting that Bobick was not really representing Reuther, he was representing Klein, and he felt that Bobick was going to railroad him.
In view of the fact that petitioner had made no sufficient showing that Reuther had communicated any information to Nadjari concerning petitioner's defense strategy, Judge Owen found no evidence of any prejudice to petitioner's defense and, consequently, no violation of his constitutional rights.
The allegations of Klein's original petition for a writ of habeas corpus dealt only with the alleged impropriety of Reuther's continuing representation by Bobick and Deutsch while he was cooperating with the prosecutor. 3 In the course of the hearing, however, petitioner's counsel sought to develop testimony relative to the activities of another figure, one William O'Gorman, allegedly an informant for the District Attorney's office.
The evidence at the 1974 hearings indicated that O'Gorman was a friend of Reuther, that he was a codefendant with Reuther in a then-pending felony charge in Suffolk County, and that he had served as an informant for the Suffolk County District Attorney's office from 1968 through at least 1969. Viewed in a light most favorable to petitioner, the testimony also indicated that O'Gorman had related to his "contact" on the police force, Captain John Gallagher, the substance of one conversation between Mr. Bobick and himself, and that he had given some unspecified "information" to Gallagher concerning the Klein murder case. However, Gallagher specifically denied ever receiving any information concerning petitioner's defense plans either from O'Gorman or from anyone else.
The evidence at the 1974 hearing also showed that O'Gorman had driven Mr. Bobick to the homes of several potential witnesses for the defense case; that O'Gorman had met with Reuther on a number of occasions while the latter was incarcerated; and that O'Gorman had told Reuther, allegedly on behalf of petitioner, that "If you don't keep your mouth shut you're a dead man". (It was this alleged threat which had convinced Reuther that he should not reveal his cooperation with the prosecutor to his own attorneys until virtually the eve of trial.) Finally, there was testimony from one Charles Lucchetti 4 that O'Gorman had supplied him with a tape recorder belonging to the Suffolk County Police Department in February of 1970 for the purpose of surreptitiously recording a conversation between himself and Mr. Bobick, petitioner's counsel. Lucchetti testified that he recorded such a conversation, and gave a copy of the tape to either O'Gorman or then-Lieutenant Gallagher. At the meeting at which he turned over the tape, moreover, Lucchetti said that he heard O'Gorman discuss with Gallagher the fact that he had been paid $5000 to frame petitioner Klein. 5 As indicated previously, however, Gallagher categorically denied that he had ever received any information from O'Gorman, Lucchetti, or any other source concerning petitioner Klein's defense plans. Moreover, he specifically denied that the...
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