United States v. Thompson

Decision Date01 July 1944
Citation56 F. Supp. 683
PartiesUNITED STATES ex rel. MITCHELL v. THOMPSON.
CourtU.S. District Court — Southern District of New York

George Kennan Hourwich, of New York City, for petitioner.

James B. M. McNally and John C. Hilly, both of New York City, for respondent.

RIFKIND, District Judge.

The petitioner was convicted of a violation of the Mann Act, 18 U.S.C.A. § 397 et seq., on March 17, 1942, and on the same day, sentenced to imprisonment for a term of four years and ten months. His conviction was affirmed by a divided court on July 26, 1943, United States v. Mitchell, 2 Cir., 137 F.2d 1006. Subsequently, on November 8, 1943, after rehearing granted by the Circuit Court, the judgment was confirmed, again by a divided court, 138 F.2d 831. Petitioner's application for a writ of certiorari was denied by the United States Supreme Court. 64 S.Ct. 785. Prior to his appeal to the Circuit Court of Appeals, the petitioner had filed a petition for a writ of habeas corpus which was dismissed by the district court on November 12, 1942.

The present petition for a writ of habeas corpus was filed on March 10, 1944. On petitioner's declaration that he could not employ counsel to assist him in this proceeding, the court, after a preliminary hearing which indicated that the petition was not frivolous, on March 30, 1944, assigned counsel to represent him on the trial of the issues raised by the petition and return. In view of the fact that the petition was drawn by the petitioner himself and apparently without the aid of counsel, the court suggested that counsel for the petitioner and the United States Attorney stipulate the issues to be tried, so that petitioner should not suffer for lack of skill in framing his allegations. Such a stipulation was made by the attorneys and approved by the petitioner.

The government has extended to the petitioner every requested facility in the preparation of the case, including the production of papers and records and assistance in assembling petitioner's witnesses; and the attorney assigned to assist the petitioner conducted the hearing with conspicuous skill and rare devotion. The hearing commenced on May 15th and continued through May 18th, 1944. The stipulation defining the issues reads as follows:

"1. Whether the petitioner was deprived of his constitutional right to the assistance of counsel in the preparation for the trial of Indictment C 111-319 against him, and whether the petitioner was deprived of the assistance of counsel in the trial upon such indictment in view of the character of the preparation for such trial.

"2. Whether the petitioner was denied his constitutional right to prepare for the trial of the aforesaid indictment, in that he was denied the right or unconstitutionally or illegally limited in the exercise of the right to communicate with witnesses or other persons in connection with the preparation for the trial of the aforesaid indictment and/or was unconstitutionally or illegally denied the right, or unconstitutionally or illegally interfered with in the exercise of the right, of access to documents necessary or useful in the preparation for the trial upon the aforesaid indictment.

"3. Whether or not the petitioner was deprived of his constitutional right to the assistance of counsel upon the trial upon the aforesaid indictment, in that the counsel assigned to represent him thereat at the time of such appointment, or theretofore, had been, counsel for another person whose interests conflicted with the representation of the petitioner.

"4. Whether the conviction of the petitioner upon the aforesaid indictment was illegally or unconstitutionally obtained, in that such conviction was procured through the use by the United States Government upon the trial of testimony obtained through the coercion of the petitioner's wife to testify against him.

"5. It is stipulated that agreement upon these issues shall not be deemed to bar the United States from claiming now or hereafter that the determination of the issues as stated is not material as a matter of law to a decision of the habeas corpus proceeding."

The petitioner is a negro and at the time of his conviction was about 22 years of age. He has had very little schooling but is not unintelligent. He has not led an exemplary life. Considering the heinous character of the crime of which he was convicted, the sentence imposed, his lack of education and lack of financial means, I was prompted to overlook the formal inadequacy of his petition prepared by him in jail. Moreover, the petition suggested that he had been deprived of his constitutional right to the assistance of counsel. Since the denial of that right involves a loss of jurisdiction to enter a valid judgment of conviction, Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357, I concluded that the petition presented a case when a judge "should be alert to examine `the facts for himself when if true as alleged they make the trial absolutely void.'" Id., 304 U.S. at page 468, 58 S.Ct. at page 1025, 82 L.Ed. 1461, 146 A.L.R. 357.

First, I dispose of item 4 of the stipulation. No evidence in support of the claimed coercion of the government's principal witness was adduced; and the witnesses called by petitioner for the purpose of proving that claim, denied it emphatically. The principal witness herself could not be produced, it appearing that she had died a suicide.

Second, the first and third items of the stipulation together raise the issue whether petitioner was deprived of his right to the assistance of counsel both during the preparation for the trial and upon trial. The testimony discloses that the petitioner was arrested on February 9, 1942 and promptly arraigned before a commissioner upon a complaint charging a violation of the Mann Act. He was unable to furnish bail and was committed to the Federal House of Detention, New York City. A person engaged in the business of furnishing bail bonds recommended Mr. Brandenburg as an attorney. The petitioner communicated with this attorney by letter and received a visit from him on February 16, 1942. In the course of the interview which followed petitioner suggested that Mr. Brandenburg see Mrs. Mitchell, his wife, who was then detained in the Women's Detention House as a material witness. Mr. Brandenburg thereupon filed a notice of appearance for Mrs. Mitchell as a material witness in order to gain admittance to see her. He had received no authorization from her to represent her. On February 17th he interviewed her and discovered that she was the government's principal witness and that she was very hostile to the petitioner. He promptly reported that to the petitioner. Exactly by what method this report was made the evidence does not disclose. The petitioner, however, produced a letter from Mr. Brandenburg, dated February 20, 1942, which refers to such prior communication. In the letter of February 20th Mr. Brandenburg also stated: "If you wish to have me represent you, it will be necessary for you to raise some funds. Until I hear from you regarding this matter I will do nothing on your behalf".

Brandenburg testified that he did not in fact abandon his client at that time; that he continued to seek out friends of the petitioner for the double purpose of raising funds for the defense and of obtaining testimony favorable to the petitioner. He specifically testified that after the writing of the letter he prepared a memorandum of law for use upon the trial. He is corroborated by the record facts that on February 25th he appeared for the petitioner when he was arraigned upon the indictment which had been filed February 20th; that he requested an adjournment to March 4th for pleading, which was granted; that he appeared again for the petitioner on March 4th, when the plea of not guilty was received, and succeeded in obtaining an adjournment of the trial date to March 11th. Brandenburg also testified that on each of the days mentioned he had conferred with the petitioner and while his estimate of the length of the conferences is unquestionably exaggerated, the petitioner did not deny that the conferences occurred. Brandenburg claimed that in the aggregate the conferences occupied between four and six hours. The petitioner estimated thirty minutes.

The testimony further discloses that on the adjourned date, namely, on March 11th, Brandenburg and not the petitioner took the initiative to sever the attorney-client relationship. He asked the court for leave to withdraw on the ground that he had not been paid. The presiding judge granted the attorney's application and, upon the petitioner's statement that he could not afford to retain a lawyer, promptly appointed Brandenburg to represent him. This was done in open court in the petitioner's presence and the evidence is uncontradicted that the petitioner made no gesture of dissatisfaction with the court's order.

The case was not reached for trial on March 11th and was further adjourned to March 13th. On that day the trial began. Petitioner was in court and was seated alongside Mr. Brandenburg, his assigned counsel, during the selection of the jury and the opening statements to the jury by both attorneys. Throughout these proceedings petitioner voiced no objection to the action of the court in assigning Brandenburg as his counsel. From the 13th of March the trial went over to Monday, the 16th of March. Immediately after the first witness was sworn the petitioner asked for the dismissal of the attorney assigned to him. So much is disclosed by the transcript of the trial minutes. Upon this hearing Brandenburg testified that petitioner had also shouted in substance that he could not get a fair trial from a white judge, a white jury and a white lawyer and that thereupon the presiding judge said: "Sit down the jury will disregard this demonstration"; that he, Brandenburg, then moved for the withdrawal of a juror; that the judge denied the motion and commented...

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