United States v. Fay
| Decision Date | 25 July 1966 |
| Docket Number | Docket 30499.,No. 444,444 |
| Citation | 364 F.2d 219 |
| Parties | UNITED STATES of America ex rel. Charles HIGGINS, Petitioner-Appellee, v. Edward FAY, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
John C. Danforth, New York City (Anthony F. Marra, New York City, on the brief), for appellee.
Joel Lewittes, Asst. Atty. Gen., of New York (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellant.
Before FRIENDLY, HAYS and FEINBERG, Circuit Judges.
This is an appeal from an order of the United States District Court for the Southern District of New York granting appellee's petition for a writ of habeas corpus, but staying the issuance of the writ on condition that the state either appeal the order or schedule a new trial. The district court held that the conviction violated appellee's rights under the due process clause of the Fourteenth Amendment because appellee was compelled, against his wishes, to stand trial without the assistance of counsel. We affirm.
The facts are uncontroverted and relatively simple.
Appellee was charged with attempted robbery in the second degree, attempted petit larceny and assault in the second degree. Philip Edelbaum of the Legal Aid Society was appointed as his counsel. During a pre-trial conference in the chambers of Justice Liebowitz of the Supreme Court of the State of New York, Kings County, appellee offered to plead guilty, but after some questioning, Justice Liebowitz concluded that he could not accept the plea because appellee's story indicated that he might have been "so drunk that you didn't know what you were doing, that you didn't intend to commit a crime."
At trial, after two prosecution witnesses had testified, attorney Edelbaum approached the bench and informed the court that appellee wished to "hire his own lawyer." In the absence of the jury, the following colloquy then took place:
When the jury returned, the following occurred:
Appellee's sole request was for a "paid lawyer." At no time did he indicate that he wished to proceed pro se.
As the trial continued appellee, handcuffed and without counsel, made no attempt to cross-examine any of the four remaining witnesses for the prosecution. No defense witnesses were called, nor motions made; appellee did not take the stand, nor offer any evidence to support the claim that he was drunk at the time of the attempted robbery.
Justice Liebowitz called upon appellee to make a closing statement to the jury:
The jury was not charged on the defense of intoxication.
After the jury informed the court that it had reached a decision, but before the verdict had been announced, the trial judge, for the first time since attorney Edelbaum had been barred from the courtroom, indicated to appellee that he could have his attorney present. Appellee immediately requested Edelbaum's return.
After the verdict of guilty was announced, attorney Edelbaum moved for a mistrial on the ground that Higgins had not been represented by counsel during a substantial portion of the trial. The motion was denied.
The Sixth Amendment to the Constitution guarantees that:
"In all criminal prosecutions, the accused...
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United States v. Dougherty
...represent themselves, see Brown v. United States, supra, 105 U.S.App.D.C. at 81, 264 F.2d at 367 (Burger, J.), United States ex rel. Higgins v. Fay, 364 F.2d 219 (2d Cir. 1966), well in advance of the beginning of trial and selection of the jury, see United States ex rel. Maldonado v. Denno......
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Com. v. Cavanaugh
.... . (the) right to counsel . . . (or) an indication of a desire to proceed alone.' Id. at 266, 347 A.2d at 225, citing United States v. Fay, 364 F.2d 219 (2d Cir. 1966), and Patton v. North Carolina, 315 F.2d 643 (4th Cir. 1963). See also United States v. Woods, 487 F.2d 1218 (5th Cir. 1973......
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United States v. Calabro
...he proceeded alone only because he felt "he had no choice" and thus did not effectively waive his right. See United States ex rel. Higgins v. Fay, 364 F.2d 219 (2d Cir. 1966); United States v. Curtiss, 330 F.2d 278 (2d Cir. 1964). The trial court must make a "record sufficient to establish ......
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Maynard v. Meachum
...or going pro se, he elected the latter. Compare Kates v. Nelson, 435 F.2d 1085, 1088 (9th Cir. 1970) with United States ex rel. Higgins v. Fay, 364 F.2d 219, 222 (2d Cir. 1966). His decision was therefore "voluntary" unless that choice placed him in a dilemma of constitutional The right to ......