United States ex rel. Martinez v. Thomas

• Decision Date: 08 December 1975
• Docket Number: No. 97,Docket 75-2066.,97
• Citation: 526 F.2d 750
• Parties: UNITED STATES ex rel. Francisco MARTINEZ, a/k/a Tony Cruz, Petitioner-Appellant, v. Warden James A. THOMAS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

526 F.2d 750

UNITED STATES ex rel. Francisco MARTINEZ, a/k/a Tony Cruz, Petitioner-Appellant, v. Warden James A. THOMAS, Respondent-Appellee.

No. 97, Docket 75-2066.

United States Court of Appeals, Second Circuit.

Argued September 18, 1975.

Decided December 8, 1975.

Douglas S. Eakeley, New York City (Debevoise, Plimpton, Lyons & Gates, New York City, of counsel), for petitioner-appellant.

Ralph L. McMurry, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondent-appellee.

Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

A New York State prisoner, Francisco Martinez, appeals from the denial of his petition for a writ of habeas corpus by the District Court for the Southern District of New York (Tyler, Judge) after an evidentiary hearing.

I

Martinez was arrested on February 15, 1966 for allegedly participating in an attempted robbery and assault committed six weeks earlier. The trial, which he conducted pro se in circumstances to be related, began on August 4, 1966. On August 12, 1966, after deliberating for 5 1/2 hours, the jury found appellant guilty of attempted robbery, attempted grand larceny, assault (second degree) and possession of a dangerous weapon. He received concurrent sentences of 7 1/2 to 15 years on October 4, 1966. He has served about nine years.¹

In 1951 Martinez had been certified as a mental defective and undifferentiated moron with an I.Q. of 63 by the Wassaic State School where he had been committed. In 1954 he had been certified by Bellevue Hospital to Kings Park State Hospital where he remained until 1956. Between 1959 and 1963 he had been tested and examined repeatedly at the various state penal institutions where he was serving a sentence. Only a year before his arrest he had been admitted to Bellevue Psychiatric Hospital on application of his brother-in-law. The hospital reports indicate that he was "emotionally severely disturbed with a psychotic character disorder . . . with marked sociopathic trends." Six days later he escaped from Bellevue. The hospital sought an adjudication that he was mentally ill, but he refused to respond. His escape took place only 11 months before the crime charged. At sentence, after some of these facts had been revealed to the state trial judge for the first time, a defense motion for a psychiatric examination was denied.²

Immediately following his sentencing, appellant attempted suicide by swallowing pins and razor blades. The history of psychotic episodes continued. Prison records in 1967 indicated that Martinez was "psychotic and dangerous to himself and others." In 1970, he was committed to the Dannemora State Hospital for the mentally ill for six months. Reports indicate that he had periods of normalcy with remissions. Both doctors who testified for him at the coram nobis proceedings in the state court and in the federal hearing below believed that he was incompetent to waive counsel at his trial in 1966.

The events that led to his "decision" to waive counsel and proceed pro se may now be recounted as a tragedy of errors. Neither the Legal Aid Society nor the trial judge knew of Martinez' history of mental illness.

Martinez first appeared with attorney Gottlieb in March 1966 in an effort to reduce bail. He soon dismissed Gottlieb because Gottlieb had erroneously informed him that his appeal in an earlier case had been abandoned. He was given an adjournment to get another lawyer.

Petitioner's mother then hired a Mr. Garcia as counsel. He appeared for petitioner on May 5, 1966, requesting a two-week adjournment to reach petitioner's family. The attorney refused to move for reduction of bail, and petitioner himself made the motion, without success. Two weeks later, petitioner appeared in court alone and requested the court to appoint counsel for him, as he had dismissed Mr. Garcia because his fees were too high and because he had not moved for bail or otherwise "represented his interests." Petitioner's brief indicates that he did not discuss the merits of his case with either Mr. Garcia or Mr. Gottlieb.

The court then appointed the New York Legal Aid Society to represent Mr. Martinez. On May 24 attorney-of-record Leopold interviewed petitioner for the first time. During this interview, Martinez told Mr. Leopold that he had not committed the crimes charged, and that he had alibi witnesses. He failed to tell Mr. Leopold their names, however. From May 24 until August 3, no attorney communicated in any way with Mr. Martinez. Attorney Leopold went on a month-long vacation in July, and, as the District Court found, "communications within the Legal Aid Society appear to have broken down."

Petitioner's case was called for trial several times in early summer, but the correctional authorities failed to produce him or notify him that his case had been called, and Legal Aid did not appear for him. In late June, Attorney Cropper of Legal Aid agreed to a trial date of July 5 for Martinez, apparently unaware that Mr. Leopold was then on vacation and that the Legal Aid investigation was pending. Predictably, on July 5, no lawyer appeared. On the district attorney's mistaken assurances to the court that he had been so informed by Legal Aid, the case was marked as "ready for trial." Later in July, Attorney Selwyn of Legal Aid, simply on the knowledge that Leopold would be back by then, requested an August trial date, and the date of August 4, 1966 was set for trial.

On August 3, after his return from vacation, Attorney Leopold appeared before the calendar judge and requested a two-week adjournment because the Legal Aid Society's normal investigation was still pending, and there was an on-going effort to procure a distant witness. The request was denied on the ground that there had already been 16 adjournments in the case. The same day, Leopold interviewed Martinez again, informing him for the first time that his case was set for trial the following day. At this time Martinez provided Leopold with the first names of his alibi witnesses, indicating that Leopold should ask Martinez' sister about their surnames as he did not know them.

On August 4, 1966, Leopold renewed his request for an adjournment before the judge in the Trial Part, stating that he was unprepared for trial. He did not, however, explain how the case had inadvertently come to be set for trial prematurely. The motion was denied, without any inquiry by the court concerning the reasons for the unpreparedness. After the motion was denied, petitioner himself requested an adjournment to find another attorney; this motion was also denied, the court indicating that the defendant was merely stalling for time. In the course of the colloquy, petitioner repeatedly expressed a desire for another attorney and for more time to find his witnesses. Finally, after the court had ordered that the jury call begin, petitioner announced for the first time (after again repeating his desire for his own lawyer): "In that case, I'd like to represent my own self."

The trial court agreed to this at once, and without any further colloquy, directed Leopold to remain at the table with petitioner to assist him and to act as co-counsel. The court then proceeded to jury selection and trial. Petitioner conducted his own defense, occasionally consulting with Mr. Leopold. He cross-examined two government witnesses, and presented other witnesses on direct examination. He repeatedly renewed his request for adjournments to contact his family and retain counsel.³

The Legal Aid Society failed to prosecute his appeal, which was dismissed as abandoned in April 1968, while petitioner was in Dannemora State Hospital. Petitioner subsequently exhausted his state remedies through coram nobis proceedings, which upheld the convictions.

The instant petition was filed pro se in January 1974. After an evidentiary hearing in the district court, the petition was denied.⁴ The district court found that petitioner was competent at the time of his trial to waive counsel, that he had validly waived counsel, and that he had not been deprived of his right to counsel by the trial judge's failure to grant an adjournment, nor of any due process rights by the court's failure to inquire into his competence.

II

This is a case where we must order the granting of a writ of habeas corpus which would doubtless not have been required had the able trial judge been apprised initially of the true facts. The defendant Martinez was an incompetent or a borderline case at best, with a prolonged record of hospitalization for mental illness, which the judge did not know until the time of sentence, when he refused to take any action regarding the revelation. The judge was also unaware of the incomprehensible lack of communication with the lawyers for the Legal Aid Society, making their preparation for trial utterly inadequate. The judge did not know any of these facts when he ordered the defendant to trial, as he testified in the coram nobis proceeding. When the defendant was refused an adjournment, the judge failed to make any inquiry with respect to the defendant's reasons for his unarticulated objection to his assigned counsel. Appellant was allowed to proceed pro se without any explanation of the dangers of such a course.

By August of 1966, it was clear that state defendants had a right to counsel unless such right was "intelligently and understandingly" waived. Carnley v. Cochran, 369 U.S. 506, 516-17, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 462-68, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Moreover, the Supreme Court had just held in Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (May 2, 1966), that a defendant was entitled to a separate hearing on his competency to "waive his constitutional right to the assistance of counsel and proceed . . . to conduct his own defense."⁵ Both Westbrook and Pate v. Robinson, 383...