Turco v. Monroe County Bar Ass'n

• Decision Date: 21 April 1977
• Docket Number: D,No. 438,438
• Parties: Arthur F. TURCO, Jr., Plaintiff-Appellant, v. The MONROE COUNTY BAR ASSOCIATION et al., Defendants-Appellees. ocket 76-7380.
• Court: U.S. Court of Appeals — Second Circuit

Page 515

554 F.2d 515

Arthur F. TURCO, Jr., Plaintiff-Appellant, v. The MONROE COUNTY BAR ASSOCIATION et al., Defendants-Appellees.

No. 438, Docket 76-7380.

United States Court of Appeals,

Second Circuit.

Argued Jan. 24, 1977.

Decided April 21, 1977.

Morton Stavis, New York City (Doris Peterson and Center for Constitutional Rights, New York City, of counsel), for plaintiff-appellant.

William J. Kogan, Asst. Atty. Gen. of N. Y., Albany, N. Y. (Louis J. Lefkowitz, Atty. Gen., and Ruth Kessler Toch, Sol. Gen., Albany, N. Y., of counsel), for defendants-appellees Appellate Division of the Supreme Court, the Justices and the Clerk thereof.

Michael T. Tomaino, Rochester, N. Y. (William D. Eggers, Rochester, N. Y., of counsel), for defendant-appellee Monroe County Bar Association.

Before ANDERSON, OAKES and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

Arthur F. Turco, Jr., a member of the New York Bar, appeals from an order of the District Court for the Western District of New York (Burke, D. J.) dismissing his amended complaint. Turco was disbarred by the Appellate Division, Fourth Department, by order dated January 28, 1975, Matter of Turco, 46 A.D.2d 490, 363 N.Y.S.2d 349 (4th Dept.), appeal dismissed, 36 N.Y.2d 713, 366 N.Y.S.2d 1029, 325 N.E.2d 883, cert. denied, 423 U.S. 838, 96 S.Ct. 66, 46 L.Ed.2d 57 (1975). The complaint sought a judgment declaring that the denial of the right of appeal to the Court of Appeals by attorneys in disbarment proceedings is a denial of federal due process. ¹ Turco also sought to enjoin enforcement of the disbarment order. The defendants are the Monroe County Bar Association and the Appellate Division and members of each. Jurisdiction is based on 42 U.S.C. §§ 1981, 1983, 1985; 28 U.S.C. §§ 1332, 1343(3), 1343(4); and 28 U.S.C. §§ 2201, 2202.

The District Court temporarily enjoined enforcement of the disbarment order. After Turco in an amended complaint added as defendants the Justices of the Appellate Division, Fourth Department, and the Chief Clerk, the defendants moved to dismiss the complaint, inter alia, for lack of jurisdiction and on res judicata grounds. The District Court dismissed the complaint, but continued its "stay" until the resolution of this appeal. ²

I

Turco was admitted to the New York Bar in December 1967. His office was in New York City but his practice, which in the beginning consisted to a large extent of assisting in the representation of the Black Panther Party and its members, required him to travel throughout the East.

Turco's difficulties with the criminal law began in 1970. In February of that year he was arrested in New York City and charged with possession of weapons, dangerous drugs, hypodermic instruments and with obstructing government administration. He was released on bail. In April he traveled to Canada, apparently without notifying the New York authorities, to make a speech at McGill University. While there he learned that he had been indicted in Baltimore, Maryland, in connection with the murder on July 12, 1969 of Eugene Anderson, a Black Panther who was suspected of being a government informer. Turco was charged with conspiracy to commit murder, assault with intent to murder, common law assault, and two charges of soliciting to commit a felony (murder and kidnapping).

Through an attorney in Maryland he attempted unsuccessfully to negotiate a release on bail if he returned from Canada. He remained in Canada, obtained a false identification card and assumed the name of Leon Wright. He testified later that he had concealed his identity to avoid extradition to the United States. Upon his failure to return to the United States, his bail in the New York case was forfeited, and he was additionally charged with bail jumping.

Seven and one-half months after he entered Canada, Turco was questioned by Canadian authorities in connection with a general widespread investigation of the kidnapping of a Canadian official. The officials accidentally discovered his real identity and learned that charges were pending against him in the United States. Extradition proceedings were commenced. Turco waived extradition and was brought back to Maryland.

In June and July of 1971 he was tried in Baltimore along with Black Panther codefendants, for the slaying of Eugene Anderson. After three weeks of trial the jury could not reach a verdict on the charges against him. His codefendants were acquitted. Another defendant, whose trial had been severed, was convicted. Before his retrial he pleaded guilty, in February 1972, to one charge of common-law assault in satisfaction of all of the charges in the May 1970 indictments. He was sentenced to a term of imprisonment of five years with execution of the sentence suspended. On his appeal the Court of Special Appeals of Maryland affirmed the judgment of conviction.

In March 1972, after moving to suppress evidence without success, he pleaded guilty in the New York prosecution to the misdemeanor charge of unlawful possession of a weapon, in satisfaction of all the charges against him, the bail jumping charge being withdrawn. He also appealed this conviction and the Appellate Term, First Department, unanimously affirmed the judgment without opinion.

Shortly after Turco's second guilty plea, the Appellate Division, Fourth Department, in April 1972, directed that an investigation be undertaken into Turco's conduct. ³ The Monroe County Bar Association made such an investigation and on May 8, 1973, it filed a petition with the Appellate Division which alleged that Turco "is or may be guilty of professional misconduct, crime, misdemeanor or felony." Appellant was specifically charged with professional misconduct based on his conviction of two misdemeanors.

A disciplinary proceeding was begun, and Turco responded with a sixty-one page answer which reviewed his personal and professional history, including his assistance in the defense of the Black Panthers, his weapons arrest, the indictments in Baltimore, his incognito stay in Canada and the reasons for his guilty pleas. He moved for the dismissal of the charges against him and, in the alternative, asked for a full evidentiary hearing to determine whether he was guilty of the offenses to which he had pleaded guilty. This request was based on his assertion that he had entered the guilty pleas under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (see infra ), and that, accordingly, he had a right to prove that he was, in fact, not guilty of the charges to which he had pleaded guilty.

Attached to the Bar Association's petition, as exhibits, were transcripts of the guilty plea proceedings on each conviction. These transcripts disclosed the other charges against Turco which had been covered by the guilty pleas and included the expected testimony of the government witnesses. Appellant had stipulated in the Maryland prosecution that certain testimony would be given against him if he elected to stand trial a second time. This testimony included details of the gruesome torture and murder of Anderson. According to the government witnesses, Turco participated in the torture and ordered the murder. ⁴

The Appellate Division found Turco guilty of professional misconduct and denied his request for a hearing to determine whether he was innocent of the charges to which he had pleaded. The court did, however, grant a hearing " in mitigation of the discipline to be adjudged." ⁵

Hearings were held before a Referee. Turco testified, among other things, that he was innocent of the specific charges to which he had pleaded guilty. He was not permitted to call witnesses to prove his innocence. He did call forty-eight witnesses, most of whom were character witnesses who had known him only since he came to Rochester. ⁶ The Referee submitted his report, and appellant was allowed to file an extensive brief and to have oral argument.

In denying an evidentiary hearing before it appointed the Referee, the Appellate Division held that North Carolina v. Alford, supra, did not support appellant's contention "that he had the right now to prove that he was not guilty of the charges" to which he had pleaded. The court noted that in Alford, the Supreme Court merely held that, as a matter of constitutional law, "it is proper for a court to accept a defendant's plea of guilty to a lesser crime in compromise of an indictment, provided the plea is voluntarily made." There was no claim by appellant that either guilty plea was involuntary. The court reiterated this ruling in its final opinion disbarring Turco. 46 A.D.2d at 492, 363 N.Y.S.2d 349.

Turco filed a notice of appeal as of right in the Court of Appeals, upon his constitutional grounds, and, alternatively, moved for an order granting leave to appeal. The Court of Appeals dismissed the appeal taken as of right for want of a substantial constitutional question, 36 N.Y.2d 713, 366 N.Y.S.2d 1029, 325 N.E.2d 883 (1975), and also denied the motion for leave to appeal, 36 N.Y.2d 642, 366 N.Y.S.2d 1026, 325 N.E.2d 880 (1975). Turco's petition for a writ of certiorari was denied. 423 U.S. 838, 96 S.Ct. 66, 46 L.Ed.2d 57 (1975).

While Turco's petition for certiorari was pending and before it was denied, he filed this action in the District Court. As we have noted, the District Court dismissed the action, and this appeal followed. The appellees contend that the action is barred by the doctrines of res judicata, judicial estoppel and full, faith and credit. We find that all the constitutional issues raised in this action were raised in the New York Court of Appeals and determined to be without merit. ⁷

Appellant contends that he was denied due process of law because he was not afforded an evidentiary hearing on whether the facts and circumstances surrounding his plea of guilty to a misdemeanor established unprofessional conduct. The contention is, in effect, that in every case where an attorney has pleaded guilty to a...