United States ex rel. Cole v. Follette
Decision Date | 17 June 1969 |
Docket Number | No. 69 Civ. 637.,69 Civ. 637. |
Citation | 301 F. Supp. 1137 |
Parties | UNITED STATES of America ex rel. Frank COLE, Petitioner, v. H. W. FOLLETTE, Warden of Greenhaven Prison, Stormville, New York, Respondent. |
Court | U.S. District Court — Southern District of New York |
Michael O. Finkelstein, New York City, for petitioner.
Louis J. Lefkowitz, Atty. Gen. of State of New York, New York City, for respondent; Charles A. La Torella, Jr., Asst. Atty. Gen., of counsel.
On November 2, 1956, a Westchester County grand jury indicted petitioner on charges of attempted sodomy, assault and criminal sexual practices upon an eleven-year-old boy. The crimes were alleged to have been committed on September 1, 1956. In November of 1965, nine years after the indictment, petitioner's case came on for trial. During more than seven of those intervening years he had been confined in Matteawan State Hospital, having been found repeatedly to be incompetent to assist in his own defense. Against that background, and with continuing indications that his mental and emotional state was at best dubious, petitioner was found in November 1965 to be engaged in "dilatory tactics" when he dismissed his retained counsel, and he was put to trial a few days later without new counsel. Forced over his objections to defend himself, but with his dismissed lawyer serving as an advisor, petitioner was found guilty and was sent by the trial judge to Grasslands Psychiatric Clinic for a psychiatric report prior to the court's consideration of sentencing.1 Thereafter, having received the report and determined that petitioner was a second felony offender, the court sentenced him to a term of from 15 to 20 years.
Following a long course of collateral attacks mounted pro se, petitioner came here seeking habeas corpus. His troublesome but only intermittently lucid papers called for the assistance of counsel. Michael O. Finkelstein, Esq., accepted the assignment and has worked indefatigably—organizing the facts hereinafter recounted; withdrawing the initial petition as premature, and exhausting an available plea to the New York Court of Appeals; and then filing the revised petition now before this court. These devoted and imaginative efforts have resulted in demonstrating grounds of constitutional law upon which this court will grant the petition for a writ of habeas corpus.
The case is one in which it is peculiarly useful to have a detailed appreciation of the facts. At least this is the premise thought to justify the rather lengthy recital which follows.
Following his indictment on November 2, petitioner entered a plea of not guilty on November 21, 1956. On January 30, 1957, he withdrew that plea and pleaded guilty to assault in the second degree "to cover all counts" in the indictment. On March 7, 1957, he was allowed to withdraw the guilty plea and again to plead not guilty to all counts. The next day, March 8, he was committed for psychiatric examination, the result of which was a determination that he was insane.
On April 15, 1957, petitioner was committed to Matteawan State Hospital. He remained there until November 17, 1961, when he was certified as sane and returned to the Westchester County Jail. Some seven months later, on June 29, 1962, still awaiting trial, he was released on bail.2 Bail was revoked on August 29, 1962, upon the district attorney's motion following petitioner's arrest on new charges of sodomy. Once again he was committed for psychiatric observation. On September 25, the medical examiners at Grasslands Hospital found him sane. Two nights later he attempted suicide by hanging himself with a bedsheet in the County Jail. He was recommitted to Grasslands on the following day, and three weeks later, on October 18, 1962, was found by the psychiatric examiners to be incapable of understanding the proceedings against him or assisting in his own defense. On the prosecutor's motion, that finding was confirmed and petitioner was sent once again to Matteawan.
Early in 1965, petitioner sought release on habeas corpus, claiming he was sane. Over the State's opposition, his petition was granted in May of 1965 and he was remanded to the custody of the Westchester County Sheriff for trial of the 1956 indictment. Some five months after that, on November 1, 1965, his case was called for trial. The events of the ensuing two weeks or so, against the background which has been described, encompass the due process violations requiring that this court grant the writ of habeas corpus.
The proceedings on November 1, 1965, concerned essentially only with the scheduling of the trial's commencement, were brief. At the outset of the short discussion (all of which occupies three pages of typed transcript) the trial judge corrected a suggestion by the assistant district attorney that he (the judge) was in some measure already familiar with the case. He said (Tr. 2):
"Outside of the fact that it has been pending for a long period of time, * * * I don't know anything about it."
Following some other brief exchanges, the case was adjourned to the morning of Wednesday, November 3, at which time, the judge said, jury selection would begin.
When petitioner then said he had been in touch with Mr. Blum for some time before, but that an actual substitution had not been accomplished, the judge asked for a copy of an alleged letter reflecting this. Petitioner, after some rummaging, produced two letters. The judge read them, then said:
(Tr. 13-14.)
On the next morning, Thursday, November 4, the judge opened the following colloquy:
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Emmett v. Ricketts, C 74-831A
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...Moreover, appellant had been incarcerated since his arrest and had nothing to gain from further delay. Cf. United States ex rel. Cole v. Follette, 301 F.Supp. 1137 (S.D.N.Y. 1969), aff'd, 421 F.2d 952 (2 Cir. Taken by itself, the denial of an adjournment even under these circumstances might......
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