People v. Mason

• Decision Date: 01 December 1978
• Parties: The PEOPLE of the State of New York v. Fred MASON, Defendant.
• Court: New York Supreme Court

Page 970

411 N.Y.S.2d 970

97 Misc.2d 706

The PEOPLE of the State of New York v. Fred MASON, Defendant.

Supreme Court, Trial Term, New York County, Part H.

Dec. 1, 1978.

Sterling Johnson, Jr., Sp. Asst. Dist. Atty., Sp. Narcotics Courts, New York City by Charles J. Heffernan, Jr., Executive Asst. Dist. Atty., New York City, for the People.

Peter L. Davis, The Legal Aid Society, New York City, for defendant.

RICHARD W. WALLACH, Justice:

Defendant Mason has moved to dismiss an indictment charging him with three separate sales of a controlled substance alleged to have occurred on April 28, 1975 and another offer to sell on June 17, 1975. Insofar as his motion sought dismissal "in the interest of justice" (CPL 210.40), a fact finding hearing was directed by Mr. Justice Dontzin in his order dated September 12, 1978 (People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106).

The facts developed at the hearing demonstrated that (1) Mason's constitutional rights have been so seriously violated as to require dismissal of this indictment as a matter of law; and (2) in any event, the interests of

justice mandate the same result. I. Interference with

defendant's right to the assistance of counsel for

his defense.

The foregoing command of the Sixth Amendment has application in state felony prosecutions not only on the trial of the action (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799). Long before Gideon, the United States Supreme Court referred to "perhaps the most critical period of the proceeding" in a criminal case brought against several defendants as "from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation . . . " are vital (Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158). The court went on to say that a defendant is as much entitled to the aid of counsel at that time as "at the trial itself." This enlarged standard is now inviolable (Massiah v. U. S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149). The conduct of the two separate special prosecutorial agencies involved here the special narcotics prosecutor and the special anti-corruption prosecutor has operated utterly to neutralize defendant's right to independent counsel to assist him in his defense of this indictment.

Shortly after defendant's arrest on August 28, 1975, he was taken by the arresting officers to Drug Enforcement Administration Headquarters where two police interrogations took place. A federal agent invited defendant to become an informer against high level traffickers; when it became evident that defendant could provide nothing of value on this level, the federal officer departed. Thereupon two city detectives, Kenneth Robinson and Raymond Vallely, told Mason that his only way of avoiding jail was to become a street informer and in that manner to implicate others, and that so long as he engaged in such activity he could remain at liberty. While this form of servitude has been attacked as a form of illegal peonage in the legal literature ("Arrestees as Informants: A Thirteenth Amendment Analysis." Robert L. Misner, John H. Clough, Stanford Law Review, Vol. 29; 713; April 1977 pp. 713-746), it is unnecessary to reach that question in view of subsequent developments.

The evening discussion closed with Mason stating he would "think over" the detectives' offer. The next day when Mason was in the detention pens awaiting arraignment, the detectives told him that they were arranging low bail for his immediate release in return for his "cooperation," because in their view "there was nothing to think about." At arraignment Mason met his Legal Aid lawyer assigned by the court, Peter Davis, Esq. After arraignment and prospective release on bail, the two detectives told Mason they would be expecting his call, and he should not "think too long."

Mason's persistent reluctance to become a drug informer had been expressed at the evening interrogation as well as in the morning at arraignment. However, the police inquiry had produced one intriguing item: Mason said he had known two violent drug offenders and that during the pending prosecution of one of them he had participated in passing $2,500 to someone at 100 Centre Street to "fix" the case. Mason named the chief architect of the fix as one Louie Eder, now deceased, and Mason indicated a willingness to inform on Eder or anyone else in the criminal justice system to whom Eder might lead. Quite properly, this information was passed along through channels to the anti-corruption (AC) prosecutor's office.

On September 23, 1975, Mason's case was calendared for a hearing at the criminal court (Berman, J., presiding). The minutes of the hearing reveal an immediate complaint by Davis, Mason's Legal Aid counsel, to the effect that the police were persisting in talking to his client in counsel's absence and over his objection. The court promptly instructed the police and ordered that "defendants should not be spoken to by any party, including the District Attorney or any member of law enforcement without the consent of counsel; That is a basic rule and I expect that could be observed."

What required the court's direction was a confrontation between Mason and the two detectives in the hall before the case was called, during which they introduced defendant to Ray Booth, an AC investigator, to pursue the "fix" information. However, this was still a subordinate concern to the narcotics agents. Detective Vallely told Mason that if he knew what was good for him he would start working for them on drug cases. Vallely added: "You've got a nice looking wife, she won't be around when you get back and your kid won't know you." At this point, attorney Davis' protests ended the conversation, and resulted in his complaint to the bench.

Beyond all this, Judge Berman's order to the police was thereupon blatantly disregarded in a manner that can only be described as contumacious. After the hearing, Vallely again approached defendant in the absence of his counsel and stated, in substance, that Davis was young, inexperienced, and clearly no match for the lawyers who would prosecute Mason. Vallely, although obviously under the prosecutor's control, never took the stand at the hearing to contradict this evidence.

The gravity of this misconduct by the police cannot be overlooked. As court appointed counsel, Davis was the court's own officer in more than the usual sense. Furthermore, court appointed counsel often labors under difficulties in winning the confidence of his client not faced by privately selected attorneys. Vallely's misconduct struck at the integrity of the adversary system and the court itself.

At this juncture, Mason's confidence in the ability of his counsel to defend him was understandably impaired, and over Davis' objection he went to work as an informer for the AC prosecutor. Under the direction of the AC bureau chief, Richard Nachman, Mason went to work as an informer. Nachman testified that Mason worked for his office for over ten months in the following way. Wearing a concealed body wire recorder, Mason would talk to Eder about fixing his case. Eder in turn steered Mason to an attorney who is identified here as Lawyer "X", since this court is advised that the latter is the subject of a grievance proceeding arising out of this same matter.

The interviews between Mason and Lawyer X were recorded in the hope that they would lead to some evidence of corruption. This aspect of the effort was inconclusive at one point Lawyer X stating to Mason that with respect to fixing judges, "the world doesn't work that way anymore . . . Forget about it." The gist of Lawyer X's advice to Mason was to raise $10,000. for his fee, and to "establish an alibi." Whether this meant that Mason should gather evidence of a genuine alibi, or should go about fabricating one, is not for this forum to determine.

Nachman testified that Mason's efforts were devoted, sincere, and promising, but that they were frustrated by the untimely death of Eder whom they hoped to take before the Grand Jury. In return for Mason's efforts, made in Nachman's estimation at considerable risk, Nachman promised to urge lenient consideration to both the special narcotics prosecutor and the court.

What is of central importance now is that on October 20, 1975, Lawyer X was substituted as Mason's counsel in the pending prosecution, and remained so until April 5, 1976. Obviously during this period Mason was without any kind of representation worthy of the name in defending his own case. The prosecution had effectively stultified his first and only genuine defender. His second was not his counsel but his target whose body Mason was hoping to substitute for his own. In a setting such as this, the traditional confidential relationship between lawyer and client had been totally destroyed. No activity by Legal Aid counsel after his reentry into the case could possibly restore what had been lost.

Happily, no similar instance of prosecutorial interference with defendant's right to counsel has been found in the New York cases. However, the problem has not escaped the attention of our sister states. In Commonwealth v. Manning, 367 N.E.2d 635 (Mass.), the Supreme Judicial Court of Massachusetts dismissed a drug prosecution where an overzealous federal agent telephoned defendant to solicit his cooperation with federal agents in an ongoing investigation. In the course of the conversation, the agent made "several disparaging remarks" about the manner in which Manning's counsel was conducting the defense in the case and predicted that defendant would end up in jail. Two lower courts held that a new trial was the appropriate remedy inasmuch as no actual prejudice had been shown from the single odious phone call. The Supreme Judicial Court went further and dismissed the indictment on the following...