United States of America Ex Rel. Frank Cole v. Harold W. Follette, Warden of Green Haven Prison, Stormville, New York

421 F.2d 952, 1970 U.S. App. LEXIS 10887

• Court: Court of Appeals for the Second Circuit
• Decided: February 3, 1970
• Docket: 246, Docket 33840
• Status: Published

Opinions

PER CURIAM.

This is an appeal from an order of the United States District Court for the Southern District of New York, Marvin E. Frankel, J., granting Frank Cole’s petition for a writ of habeas corpus and discharging him unless the State proceeded to retrial. The basis of the decision below, 301 F.Supp. 1137, was that Cole was denied due process in his state trial¹ in November 1965 because he was unjustifiably forced to trial without counsel. There is no need to recount all of the facts here; they are set forth in great detail in Judge Frankel’s opinion and we adopt his statement thereof. It is sufficient to note that the judge found the following: Cole, rather than the State, “had been the one pressing for trial.” The case was then nine years old and during that period Cole had spent more than seven years in Mat-teawan State Hospital and most of the rest in custody. At the start of trial on Wednesday, November 3, 1965, petitioner announced that retained counsel, Edwin Spence, had been dismissed but that Harry Blum was going to be substituted; apparently Cole’s mother was arranging for retention of Blum. Before Blum “declined” the retainer on the following Monday, Cole was under the understandable impression that Blum would conduct his defense. When Blum unexpectedly backed out of the case, the state judge forced Cole to go to trial immediately because of Cole’s “dilatory” tactics. The judge directed Cole, admittedly a person of dubious competence, to proceed “as his own counsel.” There was no adequate reason why a delay of the trial for another short period to give Cole and his family a chance to get counsel of his own choice “would have made a meaningful difference.” Finally Cole’s “defense” of himself was a tragic farce, which never raised “potentially substantial questions concerning sanity —both when the acts charged occurred and at the time of trial.”

From our review of the record, we agree with Judge Frankel that the unduly hasty procedure at Cole’s trial violated his constitutional right to counsel and deprived this obviously disturbed defendant of the fundamentals of due process. Therefore, we affirm the judgment below on the basis of Parts I and II of the district court opinion.²

Our dissenting brother concludes that Cole did not meet his burden of establishing that he did not fire Spence to delay his trial. It may not have been necessary for Cole to prove this; the action of the state trial judge in first acceding to the substitution of Blum and then forcing Cole immediately to trial pro se when Blum unexpectedly refused the retainer a few days later might well be grounds for granting the writ regardless of Cole’s earlier motivation. Assuming, however, that it was necessary for Cole to prove his own earlier good faith, we do not see why the transcript of what transpired at the fitful start of the state trial is not sufficient proof thereof. As the court below made clear, 801 F.Supp. at 1146-1149, the record showed a number of facts indicative of petitioner’s good faith, in addition to what the dissent calls “self-serving statements.” Chief among them was the overwhelming fact that petitioner had been incarcerated for nine years, was then confined, and had been the moving force behind the trial, over the opposition of the State. Thus, there was simply nothing from which one could reasonably infer that Cole was delaying in bad faith. The dissent suggests that the trial judge suspected that Cole was trying to get before another judge. The trial judge did not so indicate, but, in any event, a further short delay would not have required assignment to another judge. Further evidence of Cole’s good faith is that Blum apparently managed to convince the state trial judge and his legal secretary — now himself a judge— that he actually was in the case. It is at least a fair inference that Cole, rather than devilishly masterminding the eonfusion, was himself just as confused. Moreover, the state judge was irritated — and understandably so — by Blum’s apparent changes of position after he had been in touch with the judge’s chambers; the irritation clearly spilled over against Cole. In sum, we feel that Judge Frankel was correct in asking the State to rebut a prima facie case.³

We are aware that the crimes for which Cole was tried took place in September 1956, and that this disposition of the case so many years later would raise for the State at a retrial the familiar problem of proof long after the event. However, several facts tend to assuage our very real concern about this. Cole, who was sentenced to a term of 15 to 20 years, has apparently been in custody for approximately 13 years. Principally for this reason, the District Attorney for Westchester County has indicated that, in the event of affirmance of the decision below, the indictment against Cole will be dismissed.⁴ Finally, in the event that the State believes that Cole’s present mental condition warrants it,⁵ appropriate procedures exist for determining whether his welfare or the welfare of the community requires hospitalization. We suggest that the district court, upon receipt of our mandate, give the State a reasonable period in which to invoke those procedures or, as the district court order originally provided, proceed to retrial.

Judgment affirmed.

1 . For attempted sodomy and assault upon an 11-year old boy.

2 . Part III of the district court opinion held that the state court’s failure to hold a hearing on Cole’s competence to stand trial also required granting the writ. We do not reach that issue.

3 . We are also somewhat puzzled by the reference in the dissent to Cole’s failure to waive the attorney-client privilege. Judge Frankel found that, while the two attorneys were not willing to give the State affidavits voluntarily, they were willing to testify under subpoena, although they were naturally concerned about the privilege. 301 F.Supp. at 1145 n. 7. Contrary to the implication in the dissent, there was no attempt to call them, although Blum was present in the courtroom ; thus, there was no opportunity either for Cole to waive the privilege or for a ruling by the court that under the circumstances it did not apply. It was the choice of tactics by the State’s representatives that limited the record at the hearing before Judge Frankel.

4 . Letter, dated September 11, 1969, from Carl A. Vergari to Attorney General Louis J. Lefkowitz.

5 . By November 1965, Cole had spent more than 7 of the prior 9 years in Matteawan State Hospital. During his trial in 1965, the state trial judge “raised questions as to petitioner’s competence even to stand trial.” 301 F.Supp. at 1149.