Oses v. Com. of Mass., Civ. A. No. 89-0487-WD.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtJill S. Plancher, Office of the Atty. Gen., Crim. Bureau, Boston, Mass., for respondent
Citation775 F. Supp. 443
PartiesThomas OSES, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS, Respondent.
Decision Date07 October 1991
Docket NumberCiv. A. No. 89-0487-WD.

775 F. Supp. 443

Thomas OSES, Petitioner,
v.
COMMONWEALTH OF MASSACHUSETTS, Respondent.

Civ. A. No. 89-0487-WD.

United States District Court, D. Massachusetts.

October 7, 1991.


775 F. Supp. 444
COPYRIGHT MATERIAL OMITTED
775 F. Supp. 445
Stephen B. Deutsch, Robert N. McDonald, Foley, Hoag & Eliot, Boston, Mass., for petitioner

Jill S. Plancher, Office of the Atty. Gen., Crim. Bureau, Boston, Mass., for respondent.

MEMORANDUM

WOODLOCK, District Judge.

Thomas Oses brings this petition for a writ of habeas corpus alleging that his 1977 convictions in the Norfolk County Superior Court for armed assault in a dwelling and kidnapping were obtained in violation

775 F. Supp. 446
of his constitutional rights. He challenges both the decision of the pretrial motions judge to permit him to proceed pro se and the conduct of the ensuing trial by a different judge of the Superior Court

The petition illustrates the prescience of Justice Jackson's observation that "the responsibility for fair and orderly trial must be carried by the trial judge or hope of attaining it be abandoned."1 This is in large part because the trial judge "works in an atmosphere of strife, with counsel, litigants and often witnesses and spectators bitter, biased and partisan; and, if the presiding judge fails of his part, they become demonstrative and disorderly."2 Thus, "some of the very best trial judges ... are distinguished ... by wisdom and common sense and a personality that enables them unostentatiously to dominate the courtroom and be master of its proceedings."3

The conduct of Judge Mason, the judge presiding over the pretrial matters arising in the state criminal proceeding at issue here, was a journeyman example of the ideal Justice Jackson outlined. With firm and careful competence, Judge Mason addressed the knotty question of self-representation that the defendant-petitioner presented before trial and now challenges in the instant petition. Judge Mason's full and candid inquiry of the defendant-petitioner fairly resolved the competing policy interests brought into play when a criminal defendant contemplates self-representation. Judge Mason's conduct provides no basis for the relief Oses seeks.

By contrast, the conduct of Judge Chmielinski, the judge presiding over the actual trial of the state criminal proceeding, was the obverse of Justice Jackson's ideal. Judge Chmielinski did not merely "fail of his part" in that trial, he periodically competed with an obstreperous pro se defendant in an ostentatiously demonstrative undermining of the basic attributes of a fair and orderly proceeding. The record of trial conduct presented to me for review is suffused with an atmosphere of unfairness and deprecation of the defendant. This atmosphere was generated by incidents in which Judge Chmielinski acted out what was at best a grudging and sardonic adherence to the formalities of proper trial procedure without implementing the substance of fair practice. His deficient conduct of the trial was administered in the constitutionally charged context of pro se representation; and the result was a conviction unconstitutionally obtained. Accordingly, relief must be afforded the petitioner.

I.

On January 11, 1977, a grand jury indicted Thomas Oses, a 19-year-old with a sixth grade education, and codefendant William Sheppard for armed assault in a dwelling and kidnapping. The incidents leading to the indictments in this case occurred on and about December 26, 1976, and Oses and Sheppard were arrested at their conclusion.4 Oses retained Attorney Melvin Levine to represent him; it appears Attorney Levine had handled a number of motor vehicle cases for Oses in the past. Sheppard, who had been shot during the incident and was in the hospital in serious condition for several weeks thereafter, was represented by court-appointed counsel, Martin Gideonse. Between February and May of 1977, these counsel engaged in various negotiations with the prosecutor, Robert Banks, regarding discovery and other pretrial matters. The trial date was initially scheduled for April 20, 1977, but unresolved motions regarding, among other things, pretrial publicity prevented the trial from going forward at that time. The defendants were incarcerated at separate institutions during those months.

775 F. Supp. 447

A. The Decision to Proceed Pro Se

On May 9, 1977, the defendants appeared before Judge Mason in the Norfolk Superior Court, and counsel for both defendants presented motions to withdraw from the case. Oses and Sheppard indicated that they wanted to try the case themselves, and that they wanted time together in order to prepare their defense. There was also some discussion about attempts by Oses to retain another attorney, Frank Kelleher, to represent him in this case. A representative of Kelleher addressed the court at the May 9, 1977, hearing and indicated that Kelleher was representing Oses before the Massachusetts Supreme Judicial Court ("SJC") on a bail reduction hearing on another case. Kelleher's representative told the court Kelleher wished to enter an appearance in the case only if the case could be continued to the September session; "otherwise, the matter should go forward as suggested." Oses told the court he had not discussed the instant case with Kelleher and that "the only thing Mr. Kelleher and me have agreed on is the fact that he is going to take me to the Supreme Court for bail reduction."

The prosecutor strongly objected to any continuance, accusing the defendants of using "every tactic imaginable to delay the trial of this case." He indicated that the case had been given high priority by his office and requested a June 6, 1977, trial date. Defense counsel argued that only one prior date had been set, and that numerous valid pretrial motions had been outstanding at that time, some of which were still unresolved. The defendants then renewed their request to defend themselves, stating that they, too, wanted the case tried as soon as possible, so that they could prove their innocence.

Judge Mason spoke extensively and pointedly to the defendants, advising them that they were represented by able counsel and cautioning them to think very carefully about dispensing with that representation. Among other things, the judge said, "You know, when you have medical problems, you want to see a doctor. When you have legal problems, you should see a lawyer."5 Oses and Sheppard repeated their desire to represent themselves, telling the court they could be ready for trial on June 6th with Attorneys Levine and Gideonse acting as co-counsel. The judge indicated that he would hold the matter over for two days to review the entire file, but that June 6th seemed an appropriate trial date from the information then before him.

Two days later, the issue of the June 6, 1977, trial date was again taken up by Judge Mason.6 After warning the defendants once again about the seriousness of proceeding pro se and the fact that the matters were ready for trial on June 6th, the judge allowed Oses and Sheppard to argue their motion.7 There was additional discussion about incarcerating the defendants

775 F. Supp. 448
at the same institution so that they could jointly prepare their defense; then, Judge Mason made the following findings
Both counsel have indicated their willingness to be standby counsel in this matter and I am making a finding that each of these defendants have (sic) willingly and intelligently and voluntarily waived his right to have counsel represent him in this matter and they are allowed to represent themselves in this case with both Mr. Levine and Mr. Gideonse as standby counsel.

Both defendants then signed waiver of counsel forms, modified, at their request, to provide that the waiver only applied to the trial stage of their cases. A final pretrial hearing was held on May 19, 1977, at which time Judge Mason addressed several unresolved discovery matters and ordered the trial to commence on June 6, 1977. At the May 19th hearing, Oses told the court he thought the trial date of June 6th was too far in the future and asserted that he and Sheppard were ready for trial "any time now." Expressing the same sentiments, Sheppard asked Judge Mason, "Is there any other date available before June 6?" The judge indicated that there was not.

B. The Trial

The trial began in the Norfolk Superior Court on June 6, 1977, before Judge Chmielinski. Both defendants represented themselves at trial, with Attorneys Levine and Gideonse appointed by the court as standby counsel to assist them. On that day and the next, the judge acted on numerous pretrial motions filed by both defendants. In particular, he denied a motion that Oses be present at and be allowed to participate in bench and lobby conferences, stating that he did not intend to have any lobby or bench conferences, but that "everything would be done in the open courtroom wherever possible." Tr. II, at 12. He also denied Oses's motion to have freedom of movement during cross-examination. Tr. II, at 10. At times during the trial, Oses conducted his examinations of witnesses while wearing leg irons and, at one point, wrist manacles.

Several difficulties were apparent from the outset of the trial. Attorney Levine attempted to withdraw as standby counsel twice on the first day, telling the court that Oses had "threatened" him and warned him not to be present during the trial. Tr. I, at 42-44. When Attorney Levine again informed the judge on the third day that Oses did not want him present, Judge Chmielinski simply responded, "I don't care what he wants." Tr. III, at 27.

During the jury impanelment, there were numerous heated exchanges between Oses and the judge, resulting in a contempt citation for Oses and with a sentence to six months imprisonment imposed in the presence of the jury panel. While it is clear on the record that Oses was being extremely argumentative and making impanelment quite difficult, it appears...

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7 practice notes
  • Akara v. Ryan, Civil Action No. 14–40070–TSH
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 11, 2017
    ...that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Oses v. Massachusetts , 775 F.Supp. 443, 464 (D. Mass. 1991) (quoting Ferreira v. Fair , 732 F.2d 245, 249 (1st Cir. 1984) ). A court must view those comments in context, as when......
  • Stewart v. Coalter, Civ. A. No. 92-12660-DPW.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 7, 1994
    ...for a writ of habeas corpus by a prisoner whom the evidence shows has participated in repugnant criminal activity. Oses v. Commonwealth, 775 F.Supp. 443, 466-67 (D.Mass.1991), aff'd, 961 F.2d 985 (1st Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 410, 121 L.Ed.2d 334 (1992); see also Douglas......
  • Oses v. US, Civ. A. No. 92-11562-WD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 30, 1993
    ...his initial conviction in 1977, for which he had received a sentence of life imprisonment. Oses v. Commonwealth of Massachusetts, 775 F.Supp. 443 (D.Mass. 1991), aff'd, 961 F.2d 985 (1st Cir.) (per curiam), cert. denied, ___ U.S. ___, 113 S.Ct. 410, 121 L.Ed.2d 334 (1992). After the habeas ......
  • State v. Armentrout, III
    • United States
    • United States State Supreme Court of Missouri
    • December 21, 1999
    ...is whether the defendant's control over the case was impaired. Appellant relies particularly on Oses v. Commonwealth of Massachusetts, 775 F. Supp. 443 (D. Mass. 1991), aff'd, 961 F.2d 985 (1st Cir. 1992), which applied McKaskle in holding that ex parte conferences diminished a defendant's ......
  • Request a trial to view additional results
7 cases
  • Akara v. Ryan, Civil Action No. 14–40070–TSH
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 11, 2017
    ...that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Oses v. Massachusetts , 775 F.Supp. 443, 464 (D. Mass. 1991) (quoting Ferreira v. Fair , 732 F.2d 245, 249 (1st Cir. 1984) ). A court must view those comments in context, as when......
  • Stewart v. Coalter, Civ. A. No. 92-12660-DPW.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 7, 1994
    ...for a writ of habeas corpus by a prisoner whom the evidence shows has participated in repugnant criminal activity. Oses v. Commonwealth, 775 F.Supp. 443, 466-67 (D.Mass.1991), aff'd, 961 F.2d 985 (1st Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 410, 121 L.Ed.2d 334 (1992); see also Douglas......
  • Oses v. US, Civ. A. No. 92-11562-WD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 30, 1993
    ...his initial conviction in 1977, for which he had received a sentence of life imprisonment. Oses v. Commonwealth of Massachusetts, 775 F.Supp. 443 (D.Mass. 1991), aff'd, 961 F.2d 985 (1st Cir.) (per curiam), cert. denied, ___ U.S. ___, 113 S.Ct. 410, 121 L.Ed.2d 334 (1992). After the habeas ......
  • State v. Armentrout, III
    • United States
    • United States State Supreme Court of Missouri
    • December 21, 1999
    ...is whether the defendant's control over the case was impaired. Appellant relies particularly on Oses v. Commonwealth of Massachusetts, 775 F. Supp. 443 (D. Mass. 1991), aff'd, 961 F.2d 985 (1st Cir. 1992), which applied McKaskle in holding that ex parte conferences diminished a defendant's ......
  • Request a trial to view additional results

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