United States ex rel. Konigsberg v. Vincent

• Decision Date: 13 January 1975
• Docket Number: No. 73 Civ. 473 HRT.,73 Civ. 473 HRT.
• Citation: 388 F. Supp. 221
• Parties: UNITED STATES ex rel. Harold KONIGSBERG, Petitioner, v. Leon J. VINCENT, Superintendent of Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

388 F. Supp. 221

UNITED STATES ex rel. Harold KONIGSBERG, Petitioner, v. Leon J. VINCENT, Superintendent of Green Haven Correctional Facility, Respondent.

No. 73 Civ. 473 HRT.

United States District Court, S. D. New York.

January 13, 1975.

Jay Goldberg, New York City, for petitioner.

Richard Kuh, Dist. Atty., New York County by Peter J. Driscoll, Anthony Girese, and Frank Rogers, New York City, of counsel, and Louis J. Lefkowitz, Atty. Gen., State of New York by Hillel Hoffman, New York City, for respondent.

OPINION

TYLER, District Judge.

Petitioner, Harold Konigsberg, is presently serving a sentence at Green Haven Correctional Facility, Stormville, New York. After a trial by jury in the Supreme Court of New York, New York County, (Gellinoff, J.), he was convicted on April 10, 1967 of conspiracy to commit extortion and four substantive counts of extortion. A multiple offender, he was given concurrent sentences of twenty to thirty years on each extortion count and a sentence of ten to fourteen years on the conspiracy count, the last to be served consecutively to the extortion sentences.

Petitioner's conviction was affirmed without opinion by the First Department of the Appellate Division of New York, People v. Konigsberg, 34 A.D.2d 616, 309 N.Y.S.2d 993 (1970). His appeal to the New York Court of Appeals was dismissed on February 1, 1971 for failure to prosecute. Petitioner applied for certiorari and was denied on October 12, 1971 (404 U.S. 836, 92 S.Ct. 123, 30 L.Ed.2d 68). His subsequent motion to reinstate his appeal to the New York Court of Appeals was denied by that court on January 12, 1972.

In this court, petitioner applied for a writ of habeas corpus, contending that his conviction is invalid for a number of reasons, including excessive prejudicial publicity, a prejudiced trial judge, and an incompetent waiver of his constitutional right to counsel. His petition was referred to United States Magistrate Sol Schreiber pursuant to 28 U.S.C. § 636(b)(3). On October 4, 1973, Magistrate Schreiber submitted his report, finding petitioner's contentions without merit and recommending that the petition be denied without a hearing. In a memorandum dated October 30, 1973, this court approved that report and denied the petition with one exception — the issue of petitioner's competency to waive counsel. An evidentiary hearing on that question was held on April 1 and 2, 1974, at which hearing Mr. Justice Gellinoff testified, as did several psychiatrists who had examined petitioner.

FINDINGS OF FACT

Petitioner is a novice neither to judicial proceedings nor to psychiatric examinations. On October 13, 1950, he was convicted of robbery in the County Court of Hudson County, New Jersey. In 1954, he was adjudicated insane by a Superior Court judge in Trenton, New Jersey. Following petitioner's arrest in this case on October 23, 1963, the late Robert Shaw, United States District Judge, District of New Jersey, remanded him to federal custody to commence service of a ten year federal sentence which had been imposed on July 16, 1963 for possession of stolen goods. Petitioner was indicted by a New York County grand jury in this case on December 10, 1963.

On November 19, 1964, petitioner was committed by order of the Supreme Court of New York, New York County (Schweitzer, J.), for an examination of his competency to stand trial, pursuant to then New York Code of Criminal Procedure, § 658. The issue according to that section was whether ". . . such defendant is in such state of idiocy, imbecility, or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense."¹ Found competent by the examining psychiatrists Lachman and Cassity, petitioner moved to controvert their report on January 18, 1965. Accordingly, the court commenced an evidentiary hearing, at the conclusion of which, on April 27, 1965, Mr. Justice Gellinoff found petitioner capable of understanding the charges and proceedings and of making his defense, and confirmed the psychiatric report.

On September 4, 1965, while serving the sentence imposed by Judge Shaw, petitioner was admitted to the Medical Center for Federal Prisoners in Springfield, Missouri. Here he was treated and examined regularly. A formal staff report of January 10, 1966 recommended that petitioner be certified psychotic, but noted that his behavior was changing with therapy, so that ". . . any decision related to future competency to stand trial would have to be reserved in the light of future examinations." In the staff examination of May 27, 1966, Dr. Settle, a special psychiatric consultant, noted that though the patient remained mentally ill,

"at times he shrewdly perceived his environment and surroundings in order to obtain satisfaction of momentary needs. He seemed to be able to shrewdly assess the reactions of various individuals and at times use his symptoms for secondary gains when these seemed to his advantage."

In August, 1966, Dr. Alderete noted that although the Springfield staff believed petitioner still incompetent to stand trial, ". . . this is really a legal question for the court to decide."

On October 28, 1966, petitioner made a motion to stay trial and have himself return to a federal hospital and/or to have a state hearing held on his competency to stand trial. He was then committed to Kings County Hospital, where he was examined on November 4, 1966 by two state psychiatrists, Drs. Bromberg and Jimenez, who found petitioner competent to stand trial. After a second competency hearing was held, Mr. Justice Gellinoff, on December 2, 1966, also found petitioner competent to stand trial.

Petitioner's trial began on December 7, 1966. On January 3, 1967, after some twelve days of trial, petitioner announced that

"the defendant, Harold Konigsberg, as of now, has representation of — Harold Konigsberg will be represented by counsel, himself and Judge Roy Bean will from hereafter take care of all matters, talk to all witnesses, examine all witnesses." Trial Minutes (TM) at 593-594.

Mr. Justice Gellinoff replied:

"Yes, that is perfectly okay. You can represent yourself and have any evidence presented on your behalf that you wish. Miss Kahn a New York attorney, now presumed deceased is directed by the Court to continue to sit at counsel table and to be of such assistance to you as you wish to avail yourself of." Id. at 594.

The trial then continued, without any further statement at that time concerning the waiver by the judge or by Miss Kahn, who had been acting as petitioner's counsel since 1964. On January 20, the trial judge made a specific finding on the record that he had determined petitioner capable of conducting his defense.² However, he did not specifically discuss petitioner's competency to waive counsel.

Years after the event, petitioner contends that in light of his mental condition, his dismissal of counsel did not constitute an intelligent and understanding waiver of a fundamental constitutional right, so that his conviction is invalid. He further argues that a third competency hearing should have been held to determine whether he was sufficiently competent to make such a waiver.

Respondent asserts, first, that petitioner had the assistance of counsel during the trial to the extent that he wished to avail himself of it, so that he did not waive counsel. Second, respondent argues that from evidence already before Mr. Justice Gellinoff at the time of the waiver, he could and did determine that petitioner understood the charges, appreciated the risks, knew what his rights were, and was fully aware of what he was doing when he waived counsel, so that no further competency hearing was necessary to determine competency to waive counsel.

I. Petitioner's Waiver of Counsel

Two experienced defense attorneys, Frances Kahn and later Frank Lopez, remained available by court direction at petitioner's table to advise him after his announcement of self-representation. After January 5, when he began to aid Kahn in petitioner's trial, Lopez spent 90% of his time on related matters. He interviewed certain witnesses, issued subpoenas, explained legal terms to petitioner, and conferred with petitioner when the trial was not in session (Federal hearing transcript FHT at 83, 84, 92). However, Lopez testified that petitioner made the decisions, and, "I could act as his attorney only to the extent that he would permit me to do so," FHT at 79. The trial transcript shows that petitioner examined witnesses at the trial, made objections, and delivered the summation for the defense. These activities indicate that petitioner was basically in charge of conducting his own defense, see Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L. Ed.2d 429 (1966), and that he in fact had waived his right to be represented by counsel, despite their continued presence in court, see United States v. Rosenthal, 470 F.2d 837 (2d Cir. 1972).

II. Petitioner's Competency to Waive Counsel

A defendant's Sixth Amendment right ". . . to have the Assistance of Counsel for his defence" has been recognized in both Federal and New York State law as "an essential requirement of due process," United States ex rel. Jones v. Fay, 247 F.Supp. 26, 28 (S.D.N.Y.1965); People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358 (1965). This constitutional right to counsel applies to state as well as federal proceedings. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). On the other hand, the Court of Appeals for this circuit has recognized that a defendant's right to conduct and manage his own case pro se is also "a right arising out of the Federal Constitution and not the mere product of legislation or judicial decision." United States v. Plattner, 330 F.2d 271, 273 (2d Cir. 1964). The Ninth Circuit has held that because of the constitutional nature of this right, no showing of prejudice is necessary for reversal of a conviction on the...