United States ex rel. Cole v. Follette, 246

• Decision Date: 03 February 1970
• Docket Number: No. 246,Docket 33840.,246
• Citation: 421 F.2d 952
• Parties: UNITED STATES of America ex rel. Frank COLE, Petitioner-Appellee, v. Harold W. FOLLETTE, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

421 F.2d 952 (1970)

UNITED STATES of America ex rel. Frank COLE, Petitioner-Appellee, v. Harold W. FOLLETTE, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellant.

No. 246, Docket 33840.

United States Court of Appeals, Second Circuit.

Argued September 12, 1969.

Decided February 3, 1970.

Charles A. LaTorella, Jr., Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellant.

Michael O. Finkelstein, New York City, for petitioner-appellee.

Before LUMBARD, Chief Judge, and SMITH and FEINBERG, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the United States District Court for the Southern District of New York, Marvin E. Frankel, J., granting Frank Cole's petition for a writ of habeas corpus and discharging him unless the State proceeded to retrial. The basis of the decision below, 301 F.Supp. 1137, was that Cole was denied due process in his state trial¹ in November 1965 because he was unjustifiably forced to trial without counsel. There is no need to recount all of the facts here; they are set forth in great detail in Judge Frankel's opinion and we adopt his statement thereof. It is sufficient to note that the judge found the following: Cole, rather than the State, "had been the one pressing for trial." The case was then nine years old and during that period Cole had spent more than seven years in Matteawan State Hospital and most of the rest in custody. At the start of trial on Wednesday, November 3, 1965, petitioner announced that retained counsel, Edwin Spence, had been dismissed but that Harry Blum was going to be substituted; apparently Cole's mother was arranging for retention of Blum. Before Blum "declined" the retainer on the following Monday, Cole was under the understandable impression that Blum would conduct his defense. When Blum unexpectedly backed out of the case, the state judge forced Cole to go to trial immediately because of Cole's "dilatory" tactics. The judge directed Cole, admittedly a person of dubious competence, to proceed "as his own counsel." There was no adequate reason why a delay of the trial for another short period to give Cole and his family a chance to get counsel of his own choice "would have made a meaningful difference." Finally Cole's "defense" of himself was a tragic farce, which never raised "potentially substantial questions concerning sanity — both when the acts charged occurred and at the time of trial."

From our review of the record, we agree with Judge Frankel that the unduly hasty procedure at Cole's trial violated his constitutional right to counsel and deprived this obviously disturbed defendant of the fundamentals of due process. Therefore, we affirm the judgment below on the basis of Parts I and II of the district court opinion.²

Our dissenting brother concludes that Cole did not meet his burden of establishing that he did not fire Spence to delay his trial. It may not have been necessary for Cole to prove this; the action of the state trial judge in first acceding to the substitution of Blum and then forcing Cole immediately to trial pro se when Blum unexpectedly refused the retainer a few days later might well be grounds for granting the writ regardless of Cole's earlier motivation. Assuming, however, that it was necessary for Cole to prove his own earlier good faith, we do not see why the transcript of what transpired at the fitful start of the state trial is not sufficient proof thereof. As the court below made clear, 301 F.Supp. at 1146-1149, the record showed a number of facts indicative of petitioner's good faith, in addition to what the dissent calls "self-serving statements." Chief among them was the overwhelming fact that petitioner had been incarcerated for nine years, was then confined, and had been the moving force behind the trial, over the opposition of the State. Thus, there was simply nothing from which one could reasonably infer that Cole was delaying in bad faith. The dissent suggests that the trial judge suspected that Cole was trying to get before another judge. The trial judge did not so indicate, but, in any event, a further short delay would not have required assignment to another judge. Further evidence of Cole's good faith is that Blum apparently managed to convince the state trial judge and his legal secretary — now himself a judge — that he actually was in the case. It is at least a fair inference that Cole, rather than devilishly masterminding the confusion, was himself just as confused. Moreover, the state judge was irritated — and understandably so — by Blum's apparent changes of position after he had been in touch with the judge's chambers; the irritation clearly spilled over against Cole. In sum, we feel that Judge Frankel was correct in asking the State to rebut a prima facie case.³

We are aware that the crimes for which Cole was tried took place in September 1956, and that this disposition of the case so many years later would raise for the State at a retrial the familiar problem of proof long after the event. However, several facts tend to assuage our very real concern about this. Cole, who was sentenced to a term of 15 to 20 years, has apparently been in custody for approximately 13 years. Principally for this reason, the District Attorney for Westchester County has indicated that, in the event of affirmance of the decision below, the indictment against Cole will be dismissed.⁴ Finally, in the event that the State believes that Cole's present mental condition warrants it,⁵ appropriate procedures exist for determining whether his welfare or the welfare of the community requires hospitalization. We suggest that the district court, upon receipt of our mandate, give the State a reasonable period in which to invoke those procedures or, as the district court order originally provided, proceed to retrial.

Judgment affirmed.

LUMBARD, Chief Judge (dissenting).

I dissent.

In a state prisoner habeas corpus proceeding under section 2243, it is clear beyond any doubt that the burden of proof is on the petitioner. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945); Tyler v. Beto, 391 F.2d 993, 995 (5th Cir. 1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969). Strict observance of this standard assumes additional importance when the increasing numbers of such petitions coming to the federal courts are considered.¹ In the present case, however, Cole never discharged the burden. On the contrary, by taking no steps to waive the attorney-client privilege, he prevented the state and the court from testing the truth of his assertions despite the most diligent efforts of the state's attorney general.

Petitioner was indicted in November 1955 on charges of attempted sodomy, assault, and criminal sexual practice on a minor. For the next nine years he was more or less continuously incarcerated in state mental hospitals on findings that he was incompetent to stand trial. Early in 1965 Cole successfully petitioned for release from Matteawan State Hospital on the ground that he was sane and was remanded to the Westchester County Jail to await trial. At some time during this period, at least four months before November 1, he retained Edwin Spence to represent him at the forthcoming trial.

On November 1, 1965 the case was called and almost immediately adjourned to November 3. As will be explained more fully below, when the court opened that morning Cole, to the complete surprise of the court and the state, announced that he wished to dismiss Spence and bring in another attorney — one Harry Blum — to represent him. Spence could not enlighten the court on Cole's motives, for Cole had only told him of his "change of heart" the night before. Since Blum was not immediately available, Cole asked for an adjournment.

In light of Cole's announcement that he had been in contact with Blum since June, 1965, it might have seemed to the judge that the substitution — if indeed it was sought in good faith — could have been accomplished long before the trial began, thereby avoiding the need for adjournments. The trial judge in fact suspected that the aim of Cole's maneuver was delay, rather than obtaining the services of Blum. Nonetheless, he gave Cole a series of adjournments, totalling a week, to produce the new lawyer. Ultimately Blum appeared, only to inform the court that he was declining the retainer. Only then, after an entire week of valuable trial time had been lost, did the judge determine that the trial had to proceed with Cole representing himself. Although Cole was allowed to dismiss Spence, at the court's request Spence remained at counsel table throughout the trial, assisting Cole in his defense.

At an evidentiary hearing on this petition held by Judge Frankel on the state's demand, petitioner introduced the transcript of his state trial and rested. To the state's amazement, its motion for summary judgment on the ground that Cole had not met his burden of proof was denied. I share this surprise, for it seems clear to me that the issue of fact upon which Cole's claim rested — his good faith in dismissing counsel — is not established by a mere transcript of his own self-serving declarations to the state trial court.

The test for determining whether a defendant who dismisses his counsel on the eve of trial has been deprived of his right to retain the counsel of his choice ultimately turns on a balance of considerations. Against defendant's right to have the lawyer of his choice and the consequent need for adjournments must be weighed the need for orderly and relatively speedy administration of justice.² See United States v. Llanes, 374 F.2d 712, 717 (2d Cir. 1967). Before reaching the question of balance, however, the court must determine whether the defendant in dismissing his lawyer acts in good faith or merely...