Phillips v. Smith

• Decision Date: 26 September 1980
• Docket Number: D,No. 1303,1303
• Parties: William R. PHILLIPS, Petitioner-Appellee, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent-Appellant. ocket 80-2099.
• Court: U.S. Court of Appeals — Second Circuit

Page 1019

632 F.2d 1019

William R. PHILLIPS, Petitioner-Appellee, v. Harold J. SMITH, Superintendent, Attica Correctional

Facility, Respondent-Appellant.

No. 1303, Docket 80-2099.

United States Court of Appeals, Second Circuit.

Argued June 16, 1980.

Decided Sept. 26, 1980.

Robert M. Morgenthau, Dist. Atty., New York County, New York City (Robert M. Pitler, Jerrold Tannenbaum, Asst. Dist. Attys., New York City, of counsel), for respondent-appellant.

William M. Kunstler, New York City, for petitioner-appellee.

Before OAKES, VAN GRAAFEILAND, Circuit Judges, and NICKERSON, District Judge ^*.

NICKERSON, District Judge:

This is an appeal from a judgment entered on the order of the District Court, Lawrence W. Pierce, Judge, granting petitioner William R. Phillips a writ of habeas corpus unless he is retried.

Phillips, a former New York City police officer, was indicted by a New York County grand jury on March 29, 1972 for the 1968 murders of a pimp and a prostitute and for the attempted murder of a customer of the bordello where the crimes occurred. In August 1972 Phillips' first trial ended in a hung jury, deadlocked, he claims, ten to two for acquittal. On November 21, 1974, after a second trial of some seven weeks, he was convicted on all three counts. The convictions were affirmed without opinion, People v. Phillips, 52 App.Div.2d 758, 384 N.Y.S.2d 715 (1st Dept.1976), and leave to appeal was denied. 39 N.Y.2d 949, 386 N.Y.S.2d 1039, 352 N.E.2d 894 (1976).

In April 1979 he commenced this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, asserting, among other things, that he had been denied due process because during the second trial one of the jurors, John Dana Smith, applied to the New York District Attorney's Office for a job as an investigator, a fact which the prosecutors knew but did not reveal to the trial judge or to Phillips' counsel. Judge Pierce conditionally granted the writ. Phillips v. Smith, 485 F.Supp. 1365 (1980).

Phillips' second trial commenced before New York State Supreme Court Justice Harold Birns on September 16, 1974. After ten days of voir dire, twelve jurors and four alternate jurors were selected. Although Smith indicated on voir dire an interest in pursuing a career in law enforcement, particularly with the federal government, he was not challenged by the defense and was chosen as juror number three.

On September 23, 1974, the day he was sworn as a juror, Smith had lunch with Criminal Court Officer Rudolph Fontane, who had attended John Jay College of Criminal Justice with Smith's wife. Fontane said that he was thinking of applying for a job as a rackets investigator in the District Attorney's Office and told Smith that a federally funded position for a major felony investigator had opened in that office. Smith said he was interested in the latter position.

Fontane made inquiries on behalf of Smith and himself as to the procedure for applying for a job as an investigator. He spoke first to Michael Mulderrig, an investigator in the District Attorney's Office, who said that an application and resumEe should be sent directly to the District Attorney. Fontane learned the same thing from Mario Piazza, a jury warden for the New York Supreme Court, who had spoken about the matter to John Lang, an Assistant District Attorney. Fontane reported what he had learned to Smith, and on October 22, 1974, after some three weeks of testimony, Smith wrote a letter to the New York County District Attorney's Office stating, "I understand that a federally funded investigative unit is being formed in your office to investigate major felonies. I wish to apply for a position as an investigator."

Smith gave his application to Fontane, assuming that Fontane would deliver it to a personal acquaintance in the District Attorney's Office. Instead, Fontane simply placed it in the mail, although he personally delivered his own application for the job of rackets investigator. Several days after the applications were submitted, Fontane met Smith and Piazza for lunch. Later that day or the next day, Piazza called Fontane and told him that Assistant District Attorney Joan Sudolnik was responsible for reviewing applications for employment in the Major Felony Program.

Smith's application was forwarded to the Administrative Assistant District Attorney, who, on his return from vacation on November 9, 1974, sent it to Sudolnik. Sudolnik referred the application to Lang. On November 13, 1974, Fontane met Assistant District Attorney Robert Holmes, spoke of Smith's application and mentioned for the first time to a member of the District Attorney's staff, the fact that Smith was on the Phillips jury. Holmes promptly told this to Sudolnik, who instructed both her secretary and Lang that no one should correspond with Smith until after the trial. The next day, November 14, 1974, Sudolnik met with Jack Litman, the Assistant District Attorney prosecuting Phillips, and his assistant Phillip LaPenta, and informed them of the situation.

Litman testified that he directed Sudolnik to make no response to the application and said that he did not wish to know about anything contained in Smith's resumEe. Litman and LaPenta then decided that since Smith had revealed during the voir dire that he was interested in a career in law enforcement, there was nothing improper in the application to the District Attorney's Office. Moreover, they concluded that inasmuch as they had not learned anything about Smith that had not been disclosed on voir dire they had no duty to notify the court or defense counsel.

At that time four alternate jurors were available, and had Justice Birns known of the job application he would have had the discretion to substitute an alternate or, if no alternate had been available, to declare a mistrial. See, e. g., People v. Genovese, 10 N.Y.2d 478, 225 N.Y.S.2d 26, 180 N.E.2d 419 (1962); People v. West, 38 App.Div.2d 548, 327 N.Y.S.2d 493, aff'd, sub nom. People v. DeLeon, 32 N.Y.2d 944, 347 N.Y.S.2d 203, 300 N.E.2d 734 (1973). See generally N.Y. Criminal Procedure Law § 270.35.

One week later, on November 21, 1974, the jury rendered its verdict. Smith attempted to contact Sudolnik the next day by telephone. She was not available and did not return the call. He then asked Wallace Reilly, for whom Smith had worked as a guard in a department store, to make inquiries on his behalf. Reilly, who was acquainted with several Assistant District Attorneys, called Sudolnik, gave Smith a good recommendation, and mentioned that Smith had been on the Phillips jury. Sudolnik replied that Smith would be interviewed along with other applicants.

On December 4, 1974, LaPenta, concerned about public accusations made by Phillips' trial counsel against the prosecution, informed the Chief Assistant District Attorney about Smith's application. The District Attorney, Richard Kuh, was then notified, and on December 9, 1974 he brought the matter to the attention of the court and the defense.

Defense counsel moved to vacate the jury verdict. Justice Birns denied the motion after an extensive post trial hearing. People v. Phillips, 87 Misc.2d 613, 384 N.Y.S.2d 906 (Supp.Ct.N.Y.Cty. 1975).

Justice Birns concluded that there was "no evidence" that any member of the District Attorney's staff had a sinister or dishonest motive with respect to Smith's application, 87 Misc.2d at 618-19, 384 N.Y.S.2d at 910, and that sending the application, though "an indiscretion", 87 Misc.2d at 627 384 N.Y.S.2d at 915, and "unprecedented imprudence", 87 Misc.2d at 631, 384 N.Y.S.2d at 918, did not constitute improper conduct by a juror under New York State law. In light of the voir dire revealing Smith's ambitions for a law enforcement career, Justice Birns found that the application "in no way reflected a premature conclusion as to the defendant's guilt, or prejudice against the defendant, or an inability to consider the guilt or innocence of the defendant solely on the evidence." 87 Misc.2d at 627, 384 N.Y.S.2d at 915.

Justice Birns also found that, although the prosecution should have informed the court and defense counsel of the application and although their failure to do so was "a serious error in judgment," 87 Misc.2d at 628, 384 N.Y.S.2d at 916, indeed, "unique misjudgment", 87 Misc.2d at 631, 384 N.Y.S.2d 918, as to the requirements of professional ethics, this failure was not such prosecutorial misconduct as to deprive Phillips of a fair trial or to prejudice his substantial rights.

In granting the writ, Judge Pierce held that, while there was insufficient evidence to support a finding that Smith was actually partial, he was impliedly biased because the "average" juror in his position "would indeed be likely to favor the prosecution's position-at least to some extent," 485 F.Supp. at 1372, and that Phillips was therefore held in violation of the Sixth Amendment as incorporated in the due process clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

Judge Pierce cited, among other authorities, Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927), in which the Supreme Court, deciding that due process requires disqualification of a judge with a pecuniary interest in finding against a defendant, stated "(e)very procedure which would offer a possible temptation to the average man ... to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law."

Given the human propensity, often subconscious, for self-justification, as well as the "psychological impact" of requiring an individual to state before others whether he was fair and impartial, Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961), it is at best difficult and perhaps impossible to learn from a juror's own testimony after the verdict...