United States v. Gilligan
Decision Date | 28 June 1966 |
Docket Number | No. 318,Docket 30232.,318 |
Parties | UNITED STATES of America ex rel. CODARRE, Petitioner-Appellant, v. GILLIGAN, Acting Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee. |
Court | U.S. Court of Appeals — Second Circuit |
O. John Rogge, New York City (Melvin L. Wulf, Legal Director of American Civil Liberties Union, New York City, of counsel), for appellant.
Iris A. Steel, Deputy Asst. Atty. Gen. of New York (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee.
Before FRIENDLY and HAYS, Circuit Judges, and CLARIE, District Judge.*
On November 15, 1943 appellant Codarre, then thirteen years old, was placed on trial in the County Court of Dutchess County, New York, for the crime of murder in the first degree, a charge at that time carrying the possibility on conviction of imposition of the death penalty.1 Codarre entered a plea of not guilty by reason of insanity. One Dr. Banay, a psychiatrist who had conducted a thorough examination of appellant, was prepared to testify that Codarre "was experiencing a psycho-motor epileptic attack * * * that this boy was legally insane at the time of the commission of the alleged crime."2 There was also testimony to the contrary on the issue of legal insanity.
On November 23, 1943, after the state had rested its case, Codarre withdrew his plea of not guilty and entered a plea of guilty to murder in the second degree. He was sentenced to a term of imprisonment of thirty years to life.
At the hearing which followed, the county judge, focusing upon whether there was "certainty of guilt," merely decided that Codarre "was legally sane in 1943 when he committed the offense." People v. Codarre, 38 Misc.2d 445, 450, 237 N.Y.S.2d 389, 395 (Dutchess County Ct. 1963).
In the second Court of Appeals decision, the court said:
People v. Codarre, 14 N.Y.2d 370, 372, 251 N.Y. S.2d 676, 678, 200 N.E.2d 570, 571-572, cert. denied, 379 U.S. 883, 85 S.Ct. 153, 13 L.Ed.2d 89 (1964).
Appellant then applied to the United States District Court for the Southern District of New York for a writ of habeas corpus. That court, finding no denial of due process, refused the writ.
On this appeal we are not concerned with the substantive situation at the time the crime was committed, but rather with appellant's capacity at the time of the trial and of the plea of guilty. The issue with which we are faced is whether Codarre, then a thirteen year old boy with a history of epilepsy and evidence of brain abnormalities, made a reasoned choice, "voluntarily after proper advice and with full understanding of the consequences," when he entered his plea of guilty. Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); see Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); United States ex rel. McGrath v. LaVallee, 348 F.2d 373, 376 (2d Cir. 1965). Where a guilty plea is not based upon a reasoned choice, the resulting conviction is open to collateral attack. See Machibroda v. United States, supra; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942); United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 311 (2d Cir. 1963).
Appellant's counsel first indicated his desire to enter a plea of guilty at a conference held on the night of November 22, 1943. The trial judge, the district attorney, defense counsel and four psychiatrists were all present at the conference, but Codarre was not even informed that a conference would be held. The next day, in accepting Codarre's plea, the trial judge said:
"We were here until ten o\'clock, without your knowledge * * * and it was after that lengthy discussion that we really came to that conclusion of this plea * * *." (Emphasis added.)
Of that conference Chief Judge Desmond said:
People v. Codarre, 10 N.Y.2d 361, 364, 223 N.Y.S.2d 457, 459, 179 N.E.2d 475, 476 (1961).
The memorandum of the conference illuminates the point made by Chief Judge Desmond:
If the judge had not been influenced by his fear that Codarre might be released from a mental hospital after a brief period, he might well have refused to accept the plea, for not only was there a chance of acquittal but the state's evidence was more suggestive of second degree than of first degree murder, and if the jury had convicted it would surely have been inclined to convict a thirteen-year old boy of the lesser rather than the greater charge. If all else went wrong, it was almost a certainty, as everyone recognized,4 that the Governor would exercise executive clemency and reduce a death sentence to life imprisonment. It is thus quite clear that Codarre gained no advantage from entering the guilty plea.
The transcript of the proceeding at which the plea was taken indicates that Codarre did not have a "full understanding" of what was being done:
A similar question was then asked of Codarre himself. He responded "I will take the one that Mr. Dow said."
Since the record does not establish that in pleading guilty this thirteen-year old epileptic was exercising a reasoned choice, we find a denial of due process in New York's failure to provide adequate protective procedure.
The fact that Codarre had court-appointed counsel who recommended pleading guilty is not conclusive. Codarre himself must have made a reasoned choice. See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (April 19, 1966); Kotz v. United States, 353 F. 2d 312, 314 (8th Cir. 1965); cf. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Whitus v. Balkcom, 333 F.2d 496, 502-503 (5th Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L. Ed.2d 343 (1964). In Brookhart v. Janis, supra, 384 U.S. at 6, 86 S.Ct. at 1248, the Supreme Court held that the "constitutional rights of a defendant cannot be waived by his counsel" where "petitioner himself did not intelligently and knowingly agree to be tried in a proceeding which was the equivalent of a guilty plea."
We believe that New York had an affirmative duty to surround this thirteen-year-old boy charged with a capital offense with every reasonable protective measure, and particularly to provide a procedure that would assure that he would make a reasoned choice when confronted with the alternatives of pleading guilty to second degree murder or facing a possible death penalty. See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The procedure provided offered insufficient protection.
In 1948 Governor Dewey, in approving a series of measures5 which put an end to the classification of children under the age of fifteen as criminals, said:
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