Jurisdictional Statement — Dowdle v. New York

| . Questions Presented |

In the Court below, appellants asked the Court of Ap-

peals of the State of New York to.declare the limiting por-

tions of these statutory: provisions in violation of the due

procégs and equal protection clauses of the Fourteenth

Amendment to the Constitution of the United States, The

_ arguments objected to the statutes in the following particu-

lars: : *

‘1) In discriminating between capital and. nonap-.

» ital cases for the providing of funds to assigned

counsel, both for experts and for legal services,

the State laws, denied DOWDLE, indicted for a

_non-capital felony, (a) equal protection of the

law, and (b) due process of law. Equal protec-

tion is violated because in Gideon v. Wainwright,

372 U. 8. 335 (1963) this Court overruled the

. Special circumstances rule of Betts v. Brady, 316 |

U.S. 455 (1942), and declared that ALL indigent

defendants sa constitutional right to the as-

sistance of couhsel. Due process is violated be-

cause the State’s highest Court has interpreted

Section 308 of the Code of Criminal Procedure to

permit the hiring of psychiatric experts ONLY

_in ¢apital cases, regardless of the demonstrated

need, Marcus v. Joseph, 305 N. Y. 813\(1953) and ~

likewise permits payment of compensation for

services of counsel only in capital cases; thus, in

effect, denying to non-capital indigent defendants-

counsel who can assist in their defense in a mean-

ingful way. - ¢

2) In providing preseowers with unlimited funds in

all cases, N. Y. County Law, Section 825,-capital,

non-apital, misdemeanor, and felony; and in

pecifically prohibiting, in all but capital cases,

the payment of an® scans assigned

counsel for anything, NV. Y. CountyLaw, Section ~

718, the State denied DOWDLE the equal pro-

tection of the law. ae

‘

3) In providing for authorization;and permission of —

*the trial Court in advance of, and as a precondi-

tion to, the employment of any experts, N. Y.

Code of Criminal Procedure, Section 308, Mem-

erandum opinion of the Court of Appeals in this

case, pp. 14, mfra, the State denies to the. in-

‘ digent defendant, and denied to the Appellant,

DOWDLE, in this case, the benefit of the good

- faith judgment of assigned counsel; and because

. of this substitution of judgment and prelimj

gauntlet of merit, the State violates du

as this Court has interpreted that phr

las v. California, 372 U.S. 353 (1

Statement of the Case

On the day after Christmas, 1965, Joan Henderson waited

at a bus stop, in her usual manner, to go to work. Several

other persons stood by. ‘Appellant DOWDLE, who was at

that time a patient at the Rochester State Hospital and who

had been civilly certified for psychiatric treatment there,

approached her from behind and‘ grabbed her about the

waist (R. p. 3, 22). Passers-by frightened DOWDLE away

* and no harm came to Miss Henderson.

On these facts the Grand Jury of Monroe County indicted

DOWDLE for attempted first degree rape, (R. p. 3). ° —

DOWDLE was at all times an indigent (R. p. 13). The . ee

County Court assigned counsel-to defend him in the person ~

of Matthew T. Hogan, Esq. (R. p. y)- 607

The State examined DOWDLE psychiatrically and found ’

him competent to stand trial (R.p. 15, 16). To rebut. this

finding and to acquire a complete psychiatfic picture, Coun-

sel who was originally assigned aro tor funds from

DOWDLE’S mothér, but in vain (R/p..16). He then

” asked Dr. William Libertson, a psychiatrist,-to examine

DOWDLE and to give a psychiatric report on him. At this

mis?’

6

pole New York law provided hw experts | only in capital

cases, N. Y. Copz or Carmina Procepurg, Section 308, Mar-

» cus v. Joseph, 305 N. Y. 813 (1953). Even then, permission —

to employ, and the actual employment of the expert, rested ¢

ini the sole discretion of the Court, NOT counsel.

Dr. Libertson’s report related the whole paychiatrie his-

tory extending over a seven year period. While the report

did not allow for the defense of legal ‘insanity-delusions,

hallucinations and psychotic separation from reality—(but

see how quickly this rule of law is changing in New York, |

U.S. v. Freeman, 357 F. 2d 606 (1966).) ; its contents clearly

drew i in question the element of mens rea, or the criminal

state of mind. This defense would have been grounds for a

not guilty finding to any charge, even a misdemeanor. N. Y.

Pena Law, Section 244, 245.

/ Assigned counsel, inexperienced in criminal psychiatry,

| and involved in the press of business, overlooked this. point. -

He pleaded a ted to*the felony. charge -. p.

17). .

Later on, when the law firm as a whole dilowiil ve case,

the psychiatric defense became apparent, and assigned

counsel and others moved to vacate the plea of guilty and

enter a defense. The district attorney resisted vigorously

but the Court granted the motion AFTER reading Dr. Lib-

ertson’s report. The prosecution failed to — that

report in answering the moving papers.

- Although Dr. Libertsoifificknowledged a willingness to -

‘testify at the trial, there were no funds to pay his fee for

such testimony. He had not yet been paid for the report, -

although his bill for services arrived on May 11, 1964. (No

one has yet paid him.) He would not, testify without pay-

ment in advance.

There was no legal authority under which ew York

Court would entertain a prior application to paf I Dn Libert-

son for his testimony. There was no way to make th appli-

cation prior to trial and appeal it. N. Y. Copz or INAL

Procepure, Sections 515, 517, limits appeals in Criminal

cases to review of FINAL judgments. Appellate courts in

New York may not review interlocutory orders of the trial

judge. Thus, at the point when the Court granted the mo-

tion to withdraw the plea of guilty, DOWDLE, who was in

jail at all times during the proceedings, had the following ._

* options : -

1) Stay in jail for a sham trial without ‘a psychiatric

expert, undergo a FINAL judgment of conviction

for attempted first degree rape, and appeal the

_ Yefusal to grant a psychiatrist through the State

- Court system. Estimated time to reach the Court

of Appeals: Eighteen (18) to Twenty-four (24)

months. Outlook:-Fair to good, for a New Trial.

Total time in jail prior to second trial: Thirty

(30) to Thirty-six (36) months. Risk: High be-

cause of a FELONY conviction. : 7

. 2) Move for a psychiatric ex ert in advance of trial

upon papers and statutes. File order of County

a _

Court denying request for a psychiatrist. Appeal .

this order directly to the Supreme Court of. the

United States. Estimated time to reach the Su-

preme Court: Six to Hight (8) months, Outlook:

Extremely poor. Total time required to elimi-

a option: One (1) year, with Option 1 to

ollow., - |

3) Accept the offer.of the District Attorney to plead

guilty to third degree assault. Appeal that con-

viction on the ground that denial of funds for

experts, and for legal services, in effect, coerced

‘the plea to this misdemeanor, Move for payment

. 1Naturally this is.a lawyer’s guess. However, the problems of federalisni

involved in taking a novel question to the Supreme Court of the United. States

without first affo a state appellate court the opportunity to review it

are formidable and rage optimism in outcome.

-

-

8

to Libertson and appeal the order dénying pay-

ment. Estimated time: Four (4) fhonths in jail,

Two (2).to three (3) years in Courts. Risk: Very

low, misdemeanor plea limits sentence to one (1) .

year. Outlook: Fair to good, for ultimate rever-

sal and new trial without the prospect of being in

jail ali the while. . | |

« DOWDLE himself reluctantly chose the third option. He

pleaded guilty to third degree assault aud the Court sex-

tenced him to the maximum of one (1) year. (R. pp. 4-5).

Counsel obeyed DOWDLE’S instructions in the matter

because indigents must stay in jail despite any defense they.

have, and despite their innocence. Indigents cannot raise

bail. Their legal remedies and the effect of their pleas must

. be regarded in the light of their condition. Our legal sys-

tem does not accord these accuseds the liberties which’ the

presumption of innocence requires. No attorney can refuse

to follow their decisions, therefore, and keep them confined —

for long periods in jail in’ order to proceed from a better

strategic position legally.. Whether they wish to suffer con-

finement for several years to prove a legal point is up —

__them — not up to counsel. “Dowdle chose the plea of guilty

a

to a lesser offense and what man can fault him for it?

. In any event, shortly after sentencing, appellants Dowdle

and Hogan, moved to.set aside the conviction on due process

grounds, and moved for orders directing payment to Dr”

Libertson and to assigned counsel (R. pp. 11,12). In addi-

tion, appellants moved to take the testimony of the Director

of the Indigent’s Defense program of Monroe County (R. p.

11). This last motion hoped to put on record the workings

of a system in Rochester, New York, that gave assigned

- couasel no financial help whatsoever for legal services ren-

dered, and no money-to hire experts. The County Court

denied all motions without comment. The Appellate Divi-

a

>

9

sion did likewise, unhnimoualy. (R. pp. 32-34). Upon appli-

cation for leave to appeal to the Court of Appeals of the

State of New York, counsel for appellants limited the ques-

tion for réviéw solely to the issue ‘‘whether the Fourteenth

Amendment to the Constitution of the United States re--

quires the State of New York in circumstances such as this .

- ease presents to provide expert witness fees and reason-

able attorney’s fees’’ (R. pp. 39-40).

. The Court of Appeals granted leave in April 1965. In

October, the Court heard argument. In November, the

Court entered its memorandum opinion and unanimous af- ~

firmance.

The decision of the Court of pi adike came after the New

York State Legislature had enacted Chapter 878 of the

Laws of New York, 1965." This act nullified, prospectively,

the effect of Section 308 of the Code of Criminal Procedure,

and repealed its provisions distinguishing between capital

and non-capital ¢ cases. It awarded counsel fees and fees for

_experts, See County Law of New York, Art. 18—B, Section

722 b andec. -It became effective December Ist, 1965.

This new law, therefore, did not aid Dowdle. But it did

render moot in a very practical way, the policy arguments

which appellant had brought to the Court of Appeals for

review. The new statute had no legal effect on these ques- -

tions, however, and the Court of dae ruled on the Con-

stitutional i issues.

__ In respect to the opinion of the Gourt of Appeals, which

‘mandated an effort to secure court authorization i in advance

of retaining the physician, (a, procedure which is tanta-

mount to a preliminary gauntlet of merit, and which, for

- that reason, violates the principles of due process this court

enunciated in Douglas v. California, 372 U. 8. 353 (1964) )

10.

appellant urges the point that prior court. authorization, in

the summer of 1964, had no possible chance of success. It

was a meaningless gesture. There is no warrant in law

for a futile act. Many New York cases held directly against

it.2_ The only case on point is this case, decided more than a -

_+year AFTER the original application. The fact is that ap-

pellants did apply for Be nation of: their good faith acts .

prior to appeal. If-prior applica-—

as officers of the Cour

tion to’the trial judge had a chance of success, why did the

motion to confirm fail? , The trial was the same. The mo-

tion happened: within a fow short weeks of the retainer of

the psychiatrist. What-does the Court of Appeals suggest

: wauld\be different if the attorney ‘asked me payment before

rather ‘than after employment?

? This ruling is not, appellants sili, an independent

procedure which state'law required at the time, and with —

which the failure to comply would constitute adequate state

grounds for precluding consideration of the constitutional

issues: This is merely a device to dodge and avoid con-

frontation with a serious due process me, and for very

understandable reasons. :

The Questions Provestod are Substantial

Despite the opinion of the Court of Appeals to the con-

trary, appellants cqntend that: 1) the judgment of convic-

tion is void because the plea of guilty was, in fact, coerced

under the assigned counsel — no bail — no money system

practiced in Rochester, New York,. and 2) the defendant,

Dowdle, did not get the benefit of Dr. Libertson’s services,

because Dowdle could not afford to pay the psychiatrist ’s

2Indeed, until the rosecution used experts, the state would grant none

to the def pt. People v. Konono, 81 Misc. 2d 90 (1961). Compare also

People v. Harvey, 24 Misc. 2d 1022 (1960), People v. Leach, 42 Misc. 2d 143

(1964); Matter of Grossman, 261 App. Div, 1112 (1941).

_*

fee for testimony at the trial. See U.S. v. Baldi, 192 F. 2d

540 (3rd Cir. 1951). The lack of money was the most sig-

nificant factor in the decision to plead guilty. That fact

alone constitutes a denial of due process of law, vitiates the

: oe of conyiction, and demands 4 new trial.

. there can be no equal justice where the kind of

" priet a man gets depends upon the.amount of money

hé has.”’ ” Griffin v. Illinois; 351 UV. 8. 12 at 19 (1956),

" Advocates who have pleaded many soniliaki cases are

divided in their recommendations as tq-what a jurisdictional

‘ statement, or a.prayer for certiorari, to this Court should -

contain. Some say throw in the whole case, law, facts, and

a Brandeis brief. Some say follow the Court rules and

make it short and - the pomt. waco | each method has

merit. |

-

. This case must. reach your court, if at all, on the simple

= shatninehe that Dowdle, and millions like him, did not get a

fair trial. Since the decision in Gideon established the ¢on-

stitutional right to the assistance of ‘counsel in all criminal

cases, the states have wrestled between the sham of pro-

forma appointments and the triumph of truly effective: re-

presentation. The cost — the proverbial ‘where’s the money

coming from?’ — has emerged as a fundamental obstacle

to universal recognition of this constitutional guarantee.

One State, at least, has taken the lead through the judicial

branvh of government. State v. Rush, 46 N. J. 399, 217 A.

2d 441 (1966). Skirting, hurdling, and pole-vaulling the

constitutional questions like an olympic pentathelon run-

ner, Chief Justice Weintraub of the New Jersey Supreme

Court has ordered compensation paid to assigned counsel

_as of January 1, 1967. But in respect to the disbursements

required to present a proper defense, that same Justice did

not hesitate: ---—-

%

mene fe oh gt

12

wes 3 Sbligaiion ¢ of the State to provide the indigent |

with the means for an appropriate defense rises from

an interplay of the constitutional rights to counsel, to

at 450.

‘The instant case pisdesiba. the’ cotistitutional questions

whether a State must provide some funds to counsel (a)

‘ for expert witnesses and the like i in order to press a legiti-”

mate defetise and (b) for’ services which counsel renders in

‘the defense and appeal of-the case,

~N aturally the Sixth and Fourteenth Amendments are

silent on the specifics of what fomprises ‘‘due process’? or

the ‘assistance of counsel’’,. There is, too, much force in

the argument that no‘court should write iuto a Constitution

its own specific preferences as to how a‘State should comply ©

with due process in criminal prosecutions.

But if no specifies are forthcoming from this Court, the

promise of Gideon shall wither and weaken wxtil it becomes

a fatuous platitude. Gideon made no difference to Dowdle.

The County Court of Monroe County has always appointed

~ counsel in. felony cases. It did so, of course, long after police

interrogation; confinement without bail, holding incommuni-

‘eado, confession, waiver of preliminary hearing and grand

_jury presentment, — as standard procedure. That’s what

happened in this case. Here, however, the psychiatric his-

tory of the defendant gave defense counsel the opportunity

to resist the charge with an intelligent, ‘and possibly effec-

tive, plea. Gidéon’s silence on the question of what specifi-

cally constitutes the assistance of counsel left the door open

for all.the Courts of the State of New York to affirm a con-—

viction wrongfully wrought from. an indigent’s coerced

dria <a. \ ;

‘ o -

a fair trial, and —? before the law.’’ 217 > ‘2d

(ou

13 ao

These questiohs will not go away. They oe lain un-

- -.answered beneath the surface since Powell v. Alabama, 287

U. S. 45 (1932). They shall burst upon the floor. of State

Appellate Courts en masse now that New J ersey has acted. |

Dowdle’ 8 plea should om for all of them...

e

| CONCLUSION

Apfellants respeetfully ask that the Court note prob- .

able jurisdiction in this cause and place the case ——

its calendar for argument on appeal.

Dated: June 1, 1966 . ee ’

- Respectfially submitted,

JOHN MANNING REGAN, ESQ. \

“CORBETT, HOGAN AND REGAN,

Counsel for Appellants. —

Office and Post Office Address:

} ot 100 Times Square Building t

:; 45 Exchange Street ..

Rochester, New York 14614

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ne ne a as PLE ae NHN 6 ae ORR retin

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14 .

yey _ APPENDIX

Decision :

. sis

COURT OF APPEALS — NOVEMBER 24, 1965

coe No.. 297. Sarak

The People &c., sees ae ee

meats. Respondent,

. ah : ; 2 . U8: .

Richard Allen Dowdle, + bg

ee ne Appetiont, 2

3

ee

Tn the Matter of the Appliaton of Matthew t. Hogan &

ano.,.

: Appeliants,

| V8. - .

Gordon Howe, Director of Finance of the County of Mon- 2"

roe, New York, & ors., &.,

Bespoadiitis

—— ; ‘ . : ¢

Judgment and order affirmed. Appellant does not: de-

- monstrate any legal infirmity in the judgment of conviction

for assault, third degree, entered on his plea of guilty. On |

the appeal from the affirmance of the order denying the

application of attorneys fos payment of the fee of a psy-

- chiatrist retained by the attorneys no constitutional rights

- cian.

. ?

of-defendant are shown to have been violated since he had

the benefit of the physician’s services. No rights of the

‘petitioner-attorneys or of the physician were violated by —

the refusal:to pay the fee since no effort was made to se-

cure court. authorization i in advance of retaining the physi- .

No opinion.

_ All concur.