Petition — Turco v. Monroe County Bar Ass'n

Supreme Court, U. S,

JUN 20 30977

IN THE

Supreme Court of the Wniten Bey * oem

October Term, 1977

No. 76-1816

ARTHUR F. TURCO, JR.,

Petitioner,

Vv.

THE MONROE COUNTY BAR ASSOCIATION, THE

APPELLATE DIVISION OF THE SUPREME

COURT, FOURTH JUDICIAL DEPARTMENT, JOHN

S. MARSH, REID S. MOULE, RICHARD W. CARDA-

MONE, HARRY D. GOLDMAN, RICHARD D.

SIMONS, WALTER J. MAHONEY, FRANK DEL

VECCHIO, and G. ROBERT WITMER, Presiding

Justice and Justices of the Appellate Division of the

Supreme Court, Fourth Judicial Department, and

LESTER FANNING, Chief Clerk of the Appellate

Division of the Supreme Court, Fourth Judicial De-

partment,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Morton Sravis

Doris PETERSON

c/o Center for Constitutional Rights

853 Broadway

New York, New York 10003

(212) 674-3303

Attorneys for Petitioner

Adams Press Corp., 130 Cedar Street, N. Y. 10006—(212) 233-1050

TABLE OF CONTENTS OF PETITION

Page

TABLE OF CASES AND AUTHORITIES... iii

CITATION TO OPINIONS BELOW....... 2

Retin el a aa 2

QUESTIONS PRESENTED.............. 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED............ 4

STATEMENT OF THE CASE............ 4

REASONS FOR GRANTING THE WRIT.... 23

I.

PETITIONER PRESENTS FOR REVIEW AN

IMPORTANT FEDERAL QUESTION NOT

HERETOFORE DETERMINED BY THIS

COURT, NAMELY, WHETHER A LITIGANT

WHO IS INVOLUNTARILY BROUGHT

BEFORE A STATE COURT IN A PUNITIVE

PROCEEDING AND MAKES SUBSTANTIAL AND

NONFRIVOLOUS CLAIMS BEFORE THE STATE

COURT THAT THE PROCEDURES EMPLOYED

THERE VIOLATE LITIGANT'S FEDERAL

CONSTITUTIONAL RIGHTS AND PRESSES

THOSE CLAIMS TO THE END OF ALL

AVAILABLE APPELLATE PROCEDURES

WITHIN THE STATE JUDICIAL SYSTEM AND

PETITIONS THIS COURT FOR A WRIT OF

CERTIORARI WHICH WAS DENIED IS

BARRED BY PRINCIPLES OF RES JUDICATA

FROM PRESENTING HIS CONSTITUTIONAL

CLAIMS TO A UNITED STATES DISTRICT

COURT AFTER COMPLETION OF THE STATE

COURT PROCEEDINGS.......ccccccccs 23

Il.

PETITIONER PRESENT FOR REVIEW A

DIRECT CONFLICT BETWEEN THE

SECOND CIRCUIT AND THE SIXTH CIRCUIT

ON A SUBSTANTIAL QUESTION........ 37

Ry EH ora ee: ee 38

TABLE OF CONTENTS OF THE APPENDIX

Fourteenth Amendment, Section |

Constitution of the United States...

New York Judiciary Law, §90(2) and

SAPs on 60%5 440 bs eae ee ae

Appeals for the Second Circuit

dated May 23, 1977 Granting Motion

to Stay Issuance of Mandate....... o*

States District Court for the

Western District of New York

Adding Parties Defendant............

-ji-

la

2a

3a

17a

18a

23a

24a

35a

39a

64a

TABLE OF CASES AND AUTHORITIES

Cases:

Baxstrom v. Herold,

Oe Wats, BOT CEP O voce cccrccices

Coogan v. Cincinnati Bar

Association, 431 F.2d 1209

SE ES BUD s sos ok eS c's cdhsees

Getty v. Reed,

547 F.2d 971 (6th Cir. gf re

Goss v. Illinois,

312 F.2d 257 (7th Cir. 8

Hicks v. Miranda,

EB Se a |)

Huffman v. Pursue, Ltd.,

ee a> UE MEUM Fac cckcccucess

Humphrey v. Cady,

ke Se as: )

In re Keogh,

25 App. Div. 2d 499, 267 N.Y.S.

2d 87, modified on other grounds,

17 N.Y. 2d 429, 266 N.Y.S. 24

985, 214 N.E. 2d Bee GCROGS ike éiis

Jensen v. Olson,

353 F. 2d 825 (8th Cir. 1965)....

Matter of Kimball,

33 N.Y. 2d 586, 347 N.Y.S. 2a

fo: Baia nee:

-iii-

Page

24,25,26

33

29

21,37

33

27,31

27,28

24 26,28

33

ie A.D. 7 Too" (4th Dept. 5 Younger v. Harris,

1975) Appeal dismissed IE, ME Do cca eececcceetee 27

36 N.Y. 2d 713, (1975)

cert. denied Ris hy Other Authorities:

838 (1 peeeyy SV evbeéoeedevenees

7 cee Thies, Res Judicata

Milner v. Gulotta, in Civil Rights Act pase ‘a

405 F. Su 182 197 An Introduction to the Pro em,

(E.D.N.Y. PT 975) judgment | 70 Nw. U.L. Rev., 659 (1970)...... 30

affirmed 425 U.S. 901 (1976)..... 28 |

| Constitution:

North Carolina v. Alford, 8,10, | ,

GOO U.S. 25 (1970) covesboheeateus 15,25 i Fourteenth Amendment §1............

Parker v. McKeithen, | | Federal Statutes and Rules:

F.2d 553 (5th Cir. 1974)

cert. denied 419 U.S. 838 | Pe EME MOR D5 6s ss ecceeccecée 3

(L979). ocavetsecueces uae 28 |

| Ee 27

Preiser v. Rodri |

411 U.S. 475, io7 71973) 60nsebscs 32 ) Rule 19 Supreme Court Rules........ 34

Rhodes v. Meyer, | State Statutes:

334 F.2d 709 (9th Cir. pA ner 33 |

| New York ngs ea §90, ;

Rooker v. Fidelity Trust Co. | | ER EE ee

263 U.S. 113 (1003) ek ee 21

Specht v. Patterson,

386 U.s. 605 (E907 Dickie baba 24,26

ellate Division,

nae FP. od ae 141 (2nd

Cir. 1973) cert. denied

416 U.S. 906 (97d bevbedvedeesune 21

Thistlethwaite v. City of

New York, 497 F.2d 339

(2nd Cir) cert. denied

519 U.3. 1093 CROVOFs voce ducdousd 20,21, 37

Trainor v. Hernandez,

U.S. 45 U.S.L.w.

W595. (STINT)... vdkccces ccd eee 27,31

-iv- -V-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

ARTHUR F. TURCO, JR.

Petitioner,

Vv.

THE MONROE COUNTY BAR ASSOCIATION,

THE APPELLATE DIVISION OF THE

SUPREME COURT, FOURTH JUDICIAL

DEPARTMENT, JOHN S. MARSH, REID S.

MOULE, RICHARD W. CARDAMONE, HARRY

D. GOLDMAN, RICHARD D. SIMONS,

WALTER J. MAHONEY, FRANK DEL VECCHIO,

and G. ROBERT WITMER, Presiding

Justice and Justices of the Appellate

Division of the Supreme Court, Fourth

Judicial Department, and LESTER

FANNING, Chief Clerk of the Appellate

Division of the Supreme Court, Fourth

Judicial Department,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Arthur F. Turco, Jr.,

respectfully prays that a writ of certior-

ari issue to review the judgment of the

United States Court of Appeals for the

Second Circuit affirming a judgment of the

United States District Court for the Western

District of New York dismissing petitioner's

Amended Complaint.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Second Circuit is set forth in the

tenendés hereto at 3a. It has not yet been

reported. The District Court opinion is

set forth in the Appendix at 18a. It is un-

reported.

For the convenience of the Court, we

have set forth in the Appendix the related

opinions in the State courts. The opinion

of the Appellate Division of the Supreme

Court of New York dated December 17, 1973

is set forth in the Appendix at 35a. It is

unreported. The opinion of the Appellate

Division of the Supreme Court of New York

dated January 28, 1975,is printed at 46 A.D.

2d 490 (4th Dept.) and is set forth in the

Appendix at 39a. The order of the Court of

— SS Oe eee a) a et

~3-

Appeals of the State of New York is printed

at 36 N.Y. 2d 713 (1975) and is set forth

in the Appendix at 64a.

JURISDICTION

The United States Court of Appeals

rendered its decision on April 21, 1977. On

May 23, 1977, that Court granted a motion to

Stay the issuance of its mandate pending

application to this Court for a writ of certio-

rari pursuant to Rule 41(b) of the Federal

Rules of Appellate Procedure.

This Court's jurisdiction is invoked

under 28 U.S.C. Sec. 1254(1).

QUESTIONS PRESENTED

1. Whether a litigant who is in-

voluntarily brought before a state court in

a punitive proceeding and makes substantial

and non-frivolous claims before the state

court that the procedures employed there

violate litigant's federal constitutional

rights and presses those claims to the end

of all available appellate procedures with-

in the state judicial system and petitions

~5—

ale

Appellate Division of the Supreme Court of

this Court for a writ of certiorari, which ied 1/ ,

New York. The United States Court of

was denied is barred by principles of res

Appeals for the Second Circuit affirmed an

judicata from presenting his constitutional -

d f the United States District Court

claims to a United States District Court 2fter ) passes Ay ss

| for the Western District of New York, dis-

the completion of the state court proceedings?

missing an Amended Complaint filed by him

2. Whether this Court should resolve . . .

ht to enjoin his disbarment.

a direct conflict between the Sevond Circuit and ae ee nJ

District

the Sixth Circuit on the foregoing question? SHO SREUES OF PAS Claim tn the .

C Appellate Division

CONSTITUTIONAL AND STATUTORY oe ee ee ee ee en

PROVISIONS INVOLVED

. violated his constitutional rights in the

The constitutional and Statutory pro-

hs ok ee ee ne ee ee ee:

procedures which resulted in the order of

visions involved are: disbarment. He asserted jurisdiction in

1. Section 1 of the Fourteenth Amend- the District Court under 42 U.S.C. Sec.

ment to the Constitution of the United States; 1981, et seq.

e. New York Judiciary Law, Sec. 90, The case was decided by the District

paras. 2 and 4, Court upon an Amended Complaint, a motion

These are set forth in the Appendix at la-2a. for temporary injunctive relief, and a cross-

STATEMENT OF THE CASE

motion for dismissal. In this posture, there

After seven years of practice of law, were no contested issues of fact end the

Arthur F. Turco., Jr., the petitioner herein, allegations of the Amended Complaint are

was disbarred by an order of the

_l/ Matter of Turco, 46 A.D. 2d 490 (4th

Dept.), appeal dismissed 36 N.Y. 2d 713,

cert. denied 423 U.S. 838 (1975). ©

taken as true and are undisputed. Briefly

stated, the facts are:

Mr. Turco was admitted to the New

York Bar on December 21, 1967, in the First

Department. He practiced law in the metro-

politan area and its environs for several

years and in August, 1971, moved to Rochester,

where he was employed as an attorney. On

May 8, 1973, in a petition filed in the

Appellate Division for the Fourth Department

of New York, and seeking relief by way of

discipline, Mr. Turco was charged with having

entered a plea of “common law assault" (a

misdemeanor) for which he received a five-year

Suspended sentence in February, 1972, in

Maryland. The foregoing petition noted

that a wide range of charges against Mr.

Turco, which went as far as conspiracy to

murder, had been withdrawn by the Maryland

authorities. The disciplinary petition

also charged that the following month Mr.

Turco entered a plea of guilty in a New York

court to the misdemeanor of unlawful possession

of a weapon, (an offense for which he was

conditionally discharged). As in the case in

Maryland, the foregoing petition noted that

Mr. Turco was charged with other offenses in

New York, but that those charges were with-

drawn by the New York authorities. Attached

to the pleading was an assortment of under-

lying documents including transcripts of the

court proceedings from both Maryland and New

York. The disciplinary petition specifically

did not allege that Petitioner Turco was

guilty of any of the conduct attributed to

him in any of the indictments which were

withdrawn (e.g., conspiracy to murder in

Maryland, or possession of drugs in New York)

when he entered his misdemeanor pleas. Nor

did the disciplinary petition assert the

truth of various unsupported statements made

by the prosecutor in the Maryland proceedings

at the time Mr. Turco's plea was accepted.

Those statements were in the transcripts

attached to the disciplinary petition.

In response to that petition, as summarized

by the Court of Appeals, "He [Mr. Turco]

moved for the dismissal of the charges against

him and, in the alternative, asked for a full

evidentiary hearing to determine whether he

was guilty of the offenses to which he had

pleaded guilty. This request was based on

his assertion that he had entered the guilty

pleas under North Carolina v. Alford, 400

U.S. 25 (1970) (see infra), and that, accord-

ingly, he had a right to prove that he was,

in fact, not guilty of the charges to which

he had pleaded guilty." (Opinion of the

Court of Appeals, 7a-8a.)

On these papers alone, and without

a hearing, the Appellate Division, in a de-

cision dated December 17, 1973 (35a), con-

cluded that Mr. Turco's guilty pleas to two

misdemeanors established that he was "guilty

of professional misconduct in his office as

an attorney and counselor at law" and

"should be disciplined."

=Qe

at, It should be noted that under the

New York disciplinary statute, a lawyer's

conviction of a felony automatically results

in disbarment (2a), but conviction of one or

more misdemeanors may or may not result in

disciplinary action in which punishment

could range from a letter of censure to dis-

barment (ibid). The matter is left to case-

by-case determination, in which the convic-

tion and its underlying facts are but one

element. Matter of Kimball, 33 N.Y. 2d 586,

347 N.Y.S. 2d 453 (1973); In re Keogh, 25

App. Div. 2d 499, 267 N.Y.S. 2d 87, modified

on other grounds, 17 N.Y. 2d 429, 266 N.Y.S.

2d 985, 214 N.E. 2d 163 (1966).

In this case, the Appellate Division's

decision of December 17, 1973,includes no ex-

planation of its finding of "professional

misconduct." On the record before it, the

only undisputed facts were the convictions

themselves. All other aspects which were

critical to the individualized determination

called for by the New York statute, e.g.,

-l10-

whether petitioner was in fact guilty, why

he entered the pleas, the factual background

of the alleged crime, and how, if at all, the

pleas of guilty established professional mis-

conduct, were placed at issue and petitioner

had expressly sought and been denied a

hearing on those matters.

On the question of whether petitioner

would be permitted to prove his innocence,

the Appellate Division said:

"In his answer respondent admits the con-

victions but seeks to prove that in fact

he was not guilty of the charges to which

he plead guilty...We...conclude that North

Carolina v. Alford, (400 U.S. 25), on

which respondent relies, does not support

his contention that he has the right now

to prove that he was not guilty of the

charges as he plead." (37a)

The Appellate Division, having found

petitioner "guilty", did grant petitioner

leave to request a hearing on the question

of "mitigation" of punishment and decided

that such hearing be had before a referee

with power to report but not to recommend.

The mitigation hearing developed extensive

proof of petitioner's good character through

site

the testimony of an unusual array of wit-

nesses (including judges, prosecutors,

colleagues at the Bar, Bar Association

officers, ete.) out by reason of the de-

cision of the Appellate Division foreclosing

the same, petitioner was not permitted to

call witnesses to prove his innocence though

he personally testified and asserted that h=

_2/ The hearing included a probably unpre-

cedented outpouring of support for a lawyer.

There were 48 witnesses testifying on behalf

of Mr. Turco, including a sitting United

States District Judge, four sitting Justices

of the Supreme Court of New York, two sitting

Rochester City Court Judges, three sitting

Justices of the Peace, a former Attorney

General of the United States, four lawyers

who were either then or had been trustees

of the Monroe County Bar Association, the

District Attorney of Cayuga County, the

First Assistant District Attorney of Monroe

County, the Bishop of the Episcopal Diocese

of Rochester, and numerous other prominent

lawyers and citizens of the community, all

testifying to the extraordinary reputation

for integrity and competence which Mr.

Turco had earned.

atta

was innocent of the specific charges to which

he pleaded guilty. As the Amended Complaint

points out, during the mitigation hearing

there was no evidence whatsoever produced

concerning petitioner's guilt of the two mis-

demeanors, nor was there any evidence con-

cerning anything negative about petitioner's

character. While the issues before this

Court obviously do not concern the merits

of petitioner's defenses, nevertheless, it

may be appropriate to call the following

matters to the attention of this Court as

indicative at least of the bona fides of

petitioner's demand for a hearing in an

effort to establish his innocence and the

importance from the point of vie. of Mme

Process of the failure to acc~. hi. > hearing.

From petitioner's testimony at the

mitigation hearing and the summary in his

Answer, the following emerged as his explan-

ation of the circumstances:

The proceedings in Maryland arose

out of a complex indictment which

charged petitioner and other(s) with

=-13<

grave offenses, including conspir-

acy to commit murder, all arising

out of a series of events involving

the Black Panther Party, which

petitioner had been representing.

Petitioner was brought to trial but

only after he had been held without

bail for 10 months, most of which

were spent in solitary confinement,

which had a devastating impact upon

his health. The jury disagreed.

Petitioner, who had been functioning

as an attorney on behalf of the

Black Panthers and who was the only

white person among the defendants,

alone was set for retrial by the

prosecutor, all of his co-defendants

having been acquitted or having had

their cases dismissed at the re-

quest of the prosecutor. 3/

When he was called for retrial,

petitioner was given the choice of

proceeding as the sole defendant

On a charge of conspiracy to

commit murder, assault with intent

to murder, soliciting to commit

kidnapping, and common law assault,

or accepting a plea to a misdemeanor

of assault with a commitment by the

prosecutor that there would be a

recommendation of no custodial

sentence.

3/ The Circuit Court opinion refers to the

fact that one defendant whose trial had been

severed was convicted. That trial and con-

viction occurred before Mr. Turco was first

brought to trial. It is of interest that

even that defendant, who had been sentenced

to life imprisonment, had his sentence

commuted to time served on October 15, 1974.

atts

Petitioner, with a vigorous in-

sistence of innocence of all

charges made through his counsel

on the record, opted for one plea

of this minor charge, in the face

of massive pretrial publicity and

hysteria in the community which

had been generated against him;

legitimate fear for the safety of

his family as a result of hate-

group threats and intimidation

from unidentified persons; re-

peated threats of bail revocation;

a seriously ill wife; lack of funds

to pay and retain local counsel;

and the prosecutor's making it

clear that if he did not plead to

the minor misdemeanor charge,

trial would be pressed on each of

the foregoing grave charges in-

volving aspects of murder. 4/

But even this extraordinary choice,

made with an assertion of inno-

cence, was not resolved in peti-

tioner's mind until his counsel

had first ascertained from the Bar

Association of the City of New York

that a plea to a misdemeanor would

not result in automatic disbarment

and that petitioner would have an

_4/ Mr. Turco's claim of innocence with respect

to the Maryland charges was based upon a solid

alibi supported by the proferred testimony of

at least eight individuals, most of whom plain-

ly had no interest in the matter and whose tes-

timony was buttressed by documentary evidence.

By contrast, the testimony which the state said

it would present repeated a story told at the

first trial by the main prosecution witness,

whose testimony the trial judge found so in-

consistent with documented facts that after

cross-examination he struck completely all of

his testimony as being incredible.

-15-

opportunity to explain the circum-

stances of his plea to a referee

in the State of New York and to

establish his innocence.

A similar situation obtained in

New York, where Mr. Turco had been

charged with possession of danger-

ous weapons, dangerous drugs, and

hypodermic instruments. 5/ A guilty

plea was entered to the misdemeanor

of possession of a dangerous weapon,

with an assertion of innocence,

the plea being offered under the

Supreme Court's decision in North

Carolina v. Alford, 400 U.S. 25

(1970).

_5/ The Appellate Division stated petitioner

was also charged with obstructing the govern-

ment administration. That is not so.

To put the New York charges in perspective,

it should be noted that the hypodermic instru-

ments and accompanying insulin were demon-

strably for petitioner's diabetic condition

and in pretrial proceedings their use as evi-

dence was suppressed -- a fact completely ig-

nored by the Appellate Division. The danger-

ous drugs (marijuana) and dangerous weapons

were not shown to be owned by Mr. Turco and

he was charged solely because those items were

found in an apartment in which he was tempor-

arily staying. Beyond that, they were found

in the owner's bedroom, which was occupied by

Mr. Turco, yet the owner was not charged!

Indeed, a total of ten defendants were

charged with criminal offenses out of this

episode and all charges against defendants

other than Mr. Turco were dismissed.

-16-

The referee's report without recommen-

dation was filed on October 25, 1974. On

January 28, 1975, the Appellate Division ren-

dered its decision disbarring petitioner (39a). As

pointed out in petitioner's Amended Complaint,

the decision of the Appellate Division, dis-

enwen petitioner, contains an extended state-

ment based upon allegations which the petition-

er by the Appellate Division ordei’ was pre-

cluded from refuting. Those umproved alle-

gations are alleged in the Amerded Complaint

to be totally false (28a).

As alleged in the Amended Complaint,

the Appellate Division, by its order of

December17, 1973, did not allow petitioner to

go behind the two convictions to prove his

innocence; however, by its decision, the

Appellate Division went far behind that order

and turned mere allegations of which the

petitioner had not even been charged into

findings of fact.

All this came about because the

Appellate Division rested its decision upon

oiTa

Statements by the Maryland prosecutor of

expected testimony of government witnesses

upon charges which the prosecutor withdrew at

the time the guilty plea to the misdemeanor

charge was accepted. While petitioner stip-

ulated to the fact that the Government wit-

nesses would so testify on direct, he never

Stipulated to the truth of what they would

Say. In fact, on the record Mr. Turco's

counsel set forth what would be established

to contradict what the state witnesses would

Say. Based upon the conflict, the Maryland

Court accepted a plea to the misdemeanor.

Substantially the same sequence occurred in

New York. Before the Appellate Division,

however, this became proof of guilt of charges

that were withdrawn in Maryland and in New

York (45a et seq. ). It was these unproved

allegations -- accepted by the Appellate

Division as true, which formed the basis for

its disbarment order -- for its determination

that although the record showed only a con-

viction of minor misdemeanors -- the conduct

°18—

of the petitioner was of such seriousness as

to merit disbarment. In other words, the

content or scope of the misdemeanors (which

on their face were merely a simple assault

and a weapons possession charge) were enlarged

upon by unproved proffers of proof and charges

which had been withdrawn.

Thus, the structure of the entire

proceeding before the Appellate Division, as

alleged in the Amended Complaint and not dis- —

puted, was such that petitioner a) was not

charged with or given notice that he was

charged with having committed the acts attri-

buted to him by prosecuting officials in their

proffers, and b) was not given an opportunity

to refute them when the Appellate Division

decided to consider those matters, despite

its having precluded Mr. Justice Smith from

hearing testimony on those matters. Follow-

ing the opinion of the Appeiiate Division,

petitioner filed an appeal as of right to the

Court of Appeals, which was dismissed, 36 N.Y.

2d 490, 366 N.Y. Supp. 2d 10<9, and sought

-19<

leave to appeal, which was denied, 36 N.Y. 2d

642, 366 N.Y. Supp. 2d 1026 (64a).

Thereupon, while pressing a petition

for a writ of certiorari before this Court,

which was denied (423 U.S. 838), petitioner

filed the instant proceedings in the District

Court, in which he alleged in detail his

claims as to the denial of constitutional

rights in the procedures employed by the

Appellate Division (24a-34a).

In answer to the Complaint and there-

after to the Amended Complaint, respondents,

the Appellate Division and the justices and the

chief clerk thereof, move? to dismiss as did

the respondent, the Monroe County Bar

Association, claiming that the Federal court

lacked jurisdiction and that the Complaint

failed to state a cause of action.

In due course, the lower court

rendered its opinion sustaining the motion

to dismiss, but continued, pending an appeal,

the stay of disbarment of Mr. Turco. The

-20—-

Circuit Court affirmed the ruling of the

District Court on the grounds:

"that the constitutional claims

of lack of due process are barred

from consideration by the federal

district court under the doctrines

of res judicata and collateral

estoppel. Appellant raised the

due process points in both the

Appellate Division and in seeking

review in the Court of Appeals.

He emphasizes that he has done so,

moreoever, as if it were a point

in his favor. He does not question

that he has raised the same claims

in the state courts. But he con-

tends, rather, that because he

raised these constitutional claims

as an involuntary respondent in the

state court disbarment proceeding,

a federal district court has juris-

diction to review the adverse con-

stitutional finding of the New

York state courts, including the

Court of Appeals, and that this is

so even where a petition for

certiorari has already been filed

and denied by the United States

Supreme Court. The contention

may not be without some merit in

logic, in view of the confusion

in this particular field of civil

rights review by the lower federal

courts, but it has been foreclosed

in this circuit by our decision in

Thistlewaite v. City of New York,

W907 F. 2d 339 (end r.j), Cert.

denied. 419 U.S. 1093 (1974), in

which the very argument was made

and rejected. There we applied

collateral estoppel in a Sec. 1983

case to a constitutional determin-

ation by a state court. And in

Tang v. Appellate Division, 487

F. 2d 136, 141 (ond Cir. 1973),

cert. denied, 416 U.S. 906 (1974),

we barred relitigation of a denial

of admission to the Bar because

of lack of jurisdiction, citing

Rooker v. Fidelity Trust Co., 263

U.S. 413 (1923) and res judicata

(Hays, J., concurring)."

Opinion of Circuit Court

(12a-13a)(emphasis supplied

by Court)

Judge Oakes wrote a brief concurring

opinion (15a) in which he emphasized that,

much as he disagreed with them,he felt bound

by the decisions of the Second Circuit in

Thistlewaite v. City of New York, 497 F. 2d

339 (2nd Cir. 1974), cert. denied, 410 U.S.

1093 (1974) and Tang v. Appellate Division,

487 F. 2d 138 (2nd Cir. 1973), cert. denied

416 U.S. 906 (1974). He also emphasized

that the Second Circuit decision was in

conflict with those in a number of other cir-

cuits, particularly that of Getty v. Reed,

547 F. 2d 971 (6th Cir. 1977).

=; =

On May 23, 1977, the United States

Court of Appeals for the Second Circuit

granted Mr. Turco's motion to stay the

issuance of the mandate pending the filing

of this application pursuant to Rule 41(b)

of the Federal Rules of Appellate Procedure.

Mr. Turco is continuing to practice law.

REASONS FOR GRANTING THE WRIT

I.

PETITIONER PRESENTS FOR REVIEW

AN IMPORTANT FEDERAL QUESTION

NOT HERETOFORE DETERMINED BY

THIS COURT; NAMELY, WHETHER

A LITIGANT WHO IS INVOLUNTARILY

BROUGHT BEFORE A STATE COURT

IN A PUNITIVE PROCEEDING AND

MAKES SUBSTANTIAL AND NON-

FRIVOLOUS CLAIMS BEFORE THE

STATE COURT THAT THE PROCEDURES

EMPLOYED THERE VIOLATE LITI-

GANT'S FEDERAL CONSTITUTIONAL

RIGHTS AND PRESSES THOSE CLAIMS

TO THE END OF ALL AVAILABLE

APPELLATE PROCEDURES WITHIN

THE STATE JUDICIAL SYSTEM AND

PETITIONS THIS COURT FOR A WRIT

OF CERTIORARI WHICH WAS DENIED

IS BARRED BY PRINCIPLES OF

RES JUDICATA FROM PRESENTING

HIS CONSTITUTIONAL CLAIMS TO

A UNITED STATES DISTRICT COURT

AFTER COMPLETION OF THE STATE

COURT PROCEEDINGS.

Petitioner presents for review only

the federal jurisdictional question decided

by the circuit court; namely,whether princi-

ples of res judicata prevent the Federal

District Court from considering issues of

denial of procedural due process in the State

Court proceedings before which he was an

involuntary participant and which rejected

his constitutional claim. Petitioner does

-24-

not expect this court at this time to accept

for review the underlying due process questions

sought to be presented to the Federal

District Court. It may be appropriate

nevertheless,to outline petitioner's due

process contentions simply to indicate their

substantiality.

1) Petitioner contended that he was

denied due process of law because he was not

afforded an evidentiary hearing on whether

the facts and circumstances surrounding his

plea of guilty to a misdemeanor éntebiioned

unprofessional conduct. He contended that

in Baxstrom v. Herold, 383 U.S. 107 (1966),

Specht v. Patterson, 386 U.S. 605 (1967), and

Humphrey v. Cady, 405 U.S. 504 (1972), this

Court made clear that before a collateral

consequence of a conviction could be imposed,

a due process hearing was required to deter-

mine the issue as to whether that secondary

consequence properly flowed from the con-

victions. He pointed out that in New York,

conviction of a misdemeanor does not

=2S-

necessarily, but may bring about disciplinary

consequences; certainly not every common law

assault or weapons possession conviction es-

tablishes professional misconduct. It was in

respect to that adjudication of the collateral

consequences of his conviction that petitioner

claimed the right to a due process hearing

under Baxstrom and the ensuing cases.

2) Petitioner contends that he was

denied due process of law in that, despite a

plea of innocence made under North Carolina

v. Alford, 400 U.S. 24 (1970), his assertion

of innocence was ignored in a wholly colater-

al proceeding and he was not even given the

right to prove his innocence in the collateral

proceeding and indeed his plea was taken as

an admission of the charge to which he

pleaded, despite his express denial of guilt

as permitted by this Court.

3) Petitioner contends that the New

York Courts accepted as dispositive and based

opinions upon statements by a prosecutor of

what witnesses would say if they testified

ee ee =9fe

o%6e

Within the past few years this court

when petitioner disputed the testimony and has been seeking to define the role of 28 U.S.C.

set forth that the state witnesses would be Sec. 1983 in fixing the balance point of Fed-

contradicted. eral/State judicial relations.

The Court of Appeals acknowledged Beginning with Younger v. Harris, 401

this saying: U.S. 37 (1971) and Huffman v. Pursue Ltd.,

"We do not suggest that, if the 420 U.S. 592 (1975) and as recently as Trainor

general question were before us res

nova, we would consider the due v. Hernandez, U.S. » 45 U.S.L.W. 4535

process argument as entirely frivo- ¢

lous." 6/ (lla) (May 31, 1977), the court has emphasized the

need to prevent resort to the Federal Courts

6/ Beyond the recognition by the Circuit to obstruct ongoing or imminent (Hicks v.

Court of the substantiality of the

* question, it should be noted that in seeming Miranda, 422 U.S. 332 (1975) ), state criminal

to reject one of the contentions, the Cir-

cuit Court appears to have made a factual (Younger) or civil (Huffman) proceedings.

error. The Circuit Court distinguished

Baxstrom, Specht and Humphrey, all supra, Aside from principles derived from

on the grounds that in those cases there was

no "initial voluntary submission to the con- the pendency of state court proceedings, there

sequences" (10a) whereas here there was

"a plea of guilty as distinguished from a are other doctrines designed to assure that

plea of nolo contendere, or a conviction

after trial" (10a). the state court has a full opportunity to

Inspection of the papers filed with this pass upon the constitutional questions to

Court reveals that in fact Humphrey v. Cady

clearly involved a plea of guilty (See brief the extent that the case is before it. Thus,

before this Court, p. 4). The papers in

Baxtrom v. Herold are not quite so clear but at least in the habeas field a "judge may

strongly suggest that that case also in-

volved a plea of guilty. (See record on file in his discretion deny relief to an applicant

with this Court, p. 22-23). Specht v.

Patterson did in fact involve a conviction who has deliberately by-passed the orderly

after a trial. (Record before this Court,

Pp. 2). | procedure of the state courts", Mr. Justice

-29-

U.S. 838 (1974).

Marshall in Humphrey v.Cady, 405 U.S. 504, This case, however, involves a wholly

517 (1972) and a three judge Court in New York different issue. It is the issue presented to

read Huffman v. Pursue Ltd., supra, as imply-

the court in Florida State Board of Dentistry

f

ing that a defendant involuntarily before a v. Mack, 401 U.S. 960 (1971) and rejected by

State Court "and who have constitution de-

, ates eee the court over the dissent of two justices.

fense arising out of State actions, cannot

e . With the renewed emphasis of the court upon

resort to a federal forum prior to seeking a

i . clarifying jurisdictional questions in Sec.

State resolution of the merits of their con-

1983 suits and the conflict between the cir-

stitutional claim".(Milner v. Gulotta, 405

cuits (see infra, Point II) it seems partic-

F.Supp. 182, 1 B.D.B.¥., 3 udgment

” » 197 ¢ » 1975) judge ularly appropriate that the court grant this

affirmed 425 U.S. 901 (1976). Such a position

Petition.

seems to flow from an understandable effort to

On principle and on the basis of t

assure that state courts at least have an P Pp S he

historical desi of Sec. 1983. applicati of

opportunity without federal intervention to ’ 5 ” 903, applic on

the principles of res judicata are inappro-

pass upon and if need be correct constitution-

riate in cases where a litigant is involun-

al deficiencies. Pp W g

tarily before a state court, offers his con-

It seems also clear that principles ’ r

stitutional arguments to that court, and then

of res judicata would operate to bar reliti- ce .

seeks to litigate in the federal courts the

gation in a Federal Court of a claim which a .

adequacy of state court procedures. As a

party had a right to bring either in the ae Pp

commentator recently noted referring to the

federal or state courts but voluntarily chose ’ .

ti f th t-

the State court. Parker v. McKeithen, 488 debate in Congress at the time of the enac

ment of the Civil Rights Act of 1871:

...the remarks in support of the

legislation suggest that the debaters

F.2d 553 (5th Cir. 1974) cert. denied 419

@3Oo

would not have approved of the appli-

cation of an expansive notion of res

judicata in actions brought under the

legislation eventually adopted. Their

remarks clearly indicate that they

passed the 1871 Civil Rights Act, in

part, because the state courts had not

adequately protected the rights to be

guaranteed by the proposed legislation.

Although there was little direct evi-

dence of discrimination in state ap-

pellate court opinions, the state

courts were thought to have one form of

justice for Unionists and blacks and

another for the Ku Klux Klan and its

sympathizers. Much of the criticism

was directed at the lawlessness of

southern juries, but some was directed

at the entire judicial system.

It was for this reason that Congress

invested the federal trial courts with

original jurisdiction to enforce

constitutional rights.

Thies, Res Judicata in

Civil Rights Act Case: An

introduction to the Problem,

70 Northwestern University

Law Review 859 (1976) (foot-

notes omitted. )

The various limitations that have heretofore

been imposed upon litigation of constitution-

al issues in the Federal Courts which might

be considered obstructive of state court pro-

ceedings all have at their core either one

of two objectives, (a) permitting and en-

couraging the state courts to consider

ee ee ee a Tree

seriously federal constitutional issues

(Younger, Hicks v. Miranda, Trainor) or (b)

requiring a litigant who has voluntarily

chosen one of two forums available to be

bound by such choice (Parker v. McKeithen).

But nothing in these objectives suggests

that an involuntary defendant in a state

court proceeding who does present litigant's

constitutional issues in state court litiga-

tion, and carries them to the end, is for

that reason barred by some doctrine of res

judicata (or collateral estoppel or "issue

preclusion") from presenting those issues to

a Federal Court in litigation brought under

the Civil Rights Acts.

And indeed on the face of it, no

such rule can be adopted as a simple illus-

tration will make clear. Let us suppose that

a state determines that trials in cases in-

volving maximum imprisonment of less than

six months shall be conducted without counsel.

Let us further assume that a defendant in such

a case fully litigates the Sixth Amendment

=32<

issue in the state courts and petitions the

Supreme Court for a writ of certiorari, which

is denied. Can it be seriously contended that

a federal court is barred in a subsequent

proceeding from even considering the issue?

The answer is no, of course, and that is one

of the familiar functions of the writ of

habeas corpus. See, Preiser v. Rodriguez,

412 U.S. 475, 497 (1973). How then can it be

suggested that the Federal-State relation-

ship in the adjudication of constitutional

issues is different when the state employs

a non-custodial punitive process, e.g., when,

as here, it acts against the professional

livelihood of an individual and disbars him.

Such a distinction can have no rational

basis and introduces into the issue of the

Federal-State relationship in the adjudica-

tion of constitutional issues an element of

procedural chance which is inconsistent with

the development of cohesive jurisdictional

principles.

While the Preiser case, supra, is

=33=

cited for the proposition that principles of

res judicata are applicable to a civil rights

action brought under 42 U.S.C., §1983, the

cases cited by the court in that case apply

to particular fact patterns which do not

describe the instant case.7/

The argument for the res judicata

position essentially comes to the following:

after all, following litigation in the

State court, if the constitutional issues have

been presented to the State court and the

Supreme Court by way of a petition for writ

of certiorari, the litigant has had adequate pro-

tection amainst denial of constitutional rights.

Judicial economy and the need to terminate

7/ Coogan v. Cincinnati Bar Assn., 431 F. 24

1200 (6th Cir. 1970), is a case of a liti-

gant involuntarily before the State court who

did not offer to that court the issue he

thereafter sought to raise in the Federal court;

Jensen v. Olson, 353 F.2d 825 (8th Cir. 1965),

and Rhodes v. Meyer, 334 F.2d 709 (8th Cir.

1964), clearly involved situations where the

litigant had voluntarily elected to present

his issue to a State court; Goss v. Illinois,

312 F.2d 257 (7th Cir. 1963), involved an

effort to use a §1983 proceeding where habeas

corpus was obviously the proper remedy.

-3a-

litigation call for the application of princi-

ples of res judicata.

But this Court has never conceived of

its role as being the correction of errors

below. It has never felt that it is required

to grant certiorari solely because the court

below erred. "A review on writ of certiorari

is not a matter of right, but of sound judici-

al discretion, and will be granted only

where there are special and important reasons

therefor." Rule 19, Supreme Court Rules. And

those special and important reasons refer to

the precedential role of the case, not the

correction of error.

Except in rare cases, there is no

clue to the reasons for denial of a petition

for writ of certiorari. The reasons may be

bottomed on such matters as the overwhelming

docket of this Court or a decision by the

Court that the precedential value of the case

is not such as to require that the court

address the problem. Sometimes the Court

-35-

litigation in several lower courts before it

addresses the issue. And in cases coming up

from State courts raising constitutional

issues, a frequent reason for denying a

petition for writ of certiorari is that the

record below does not adequately develop the

factual basis for the constitutional deter-

mination or that the lower court does not ex-

pound upon the issue so as to give the

Supreme Court the benefit of prior judicial

evaluation of the issues.

This last factor would be particularly

appropriate in a case in which a defendant in

a State court proceeding attacks the pro-

cedures before that court. In such a case

it is most unusual for a State court to add-

ress its own procedural deficiencies. The

instant case is a perfect example of that

problem, for the Avpeliate Division decisions

in no way hinted at the underlying constitu-

tional deficiencies in its procedures, even

though they were raised.And the New York State

r mature in

wishes an issue to ripen o Court of Appeals considered "that no substan-

<_*

tial constitutional question is directly in-

volved" (64a). And however much the petitioner

sought to have the court address those

questions, it refused to do so. Yet the

Second Circuit considered that the due process

argument was not “entirely frivolous" (lla).

This Court in this case denied a

petition for writ of certiorari when the

case was presented to it from the State Court

and it was most unlikely under any circum-

stances that it would have accepted a

petition for writ of certiorari at that time,

since it did not have the benefit of an ar-

ticulated expression, with respect to the

- procedural issues, from the State court. The

only way those issues could ever be fully

defined and properly adjudicate? ‘sould be *y a

tribunal which considered that it had the re-

sponsibility of independently adjucating the

constitutional issues. The United States

District Court is obviously the first tri-

bunal in this case which could have served

that function. To restrict the functioning

37 «

of the District Court by adopting a doctrine

of res judicata in the type of case where, as

pointed out above, a State court is particu-

larly unlikely to consider its own procedural

deficiencies, is effectively to prevent any

consideration of the issues in the federal forum.

II

PETITIONER PRESENT FOR

REVIEW A DIRECT CONFLICT

BETWEEN THE SECOND CIRCUIT

AND THE SIXTH CIRCUIT ON A

SUBSTANTIAL QUESTION.

As the concurring opinion of Judge

Oakes in this case and the opinion of the

Sixth Circuit in Getty v. Reed, supra, show,

the Second and Sixth Circuits are in direct

conflict on the jurisdictional issue in this case.

Indeed, a commentator has noted that

lacking guidance from this Court on its issues

here presented "the decisions of the Lower Courts

teem with inconsistencies", Thies, supra, at

p. 865. The author's footnote in support of

the foregoing statement is as follows:

Compare Thistlethwaite v. City of

New York, 497 F.2d 339 (ond Cir.)

cert. denied, 419 U.S. 1093 (1974),

with Lombard v. Board of Educ., 502

F.2d 631 (2nd Cir. 197%

), cert.

denied, 420 U.S. 976 (1976); Roy v.

-38-

Jones, 484 F.2d 96 (3rd Cir. 1973),

with Kauffman v. Moss, 420 F.2d

1270 (3rd Cir.), cert. denied, 400

U.S. 846 (1970); Brown v. Chastain,

416 F.2d 1012 (5th Cir. 1969), with

Mack v. Florida State Bd. of

Dentistry, 430 F.2d 862 (5th Cir.

1970), cert. denied, 401 U.S. 960

(1971) (White, J., dissenting from

' denial of writ); Coogan v. Cin-

cinnati Bar Ass'n., 431 F.2d 1209

(6th Cir. 1970), with Mulligan v.

Schlacter, 389 F.2d 231 (6th Cir.

1968); Blankner v. City of Chicago,

504 F 2a 1037 (th Cir 1974), with

Hampton v. City of Chicago, 484 F.2d

602, 606 n.4 (7th Cir. 1973);

Francisco Enterprises, Inc. v.

Kirby, 82 F.2d 481 (9th Cir. 1973)

cert. denied, 415 U.S. 916 (1974)

with Ney v. California, 439 F.2d

1285 (9th Cir. 1971).

For an analysis of these and other

cases, see Averitt, Federal Section

1983 Actions After State Court Judg-

ment, 44 U. Colo. L. Rev. 191 (1972);

McCormack, Federalism and Section

1983: Limitations on Judicial

Enforcement of Constitutional

Claims, Part II, 60 Va. L. Rev. 250

91974) (hereinafter cited as McCor-

mack); Veslal, State Court Judgment

as Preclusive in Section 1983

Litigation in a Federal Court, 27

Okla. L. Rev. 185 (1974); Note,

Relationship of Federal and State

Courts, 88 Harv. L. Rev. 453 (1974);

Comment, The Collateral Estoppel

Effect of State Criminal Convictions

in Section 1983 Actions, 1975 U.

Til. B.r, 95 Tee oee cited as

Illinois Comment).

- 39-

It is appropriate that the Court resolve

the inconsistencies among the various

Circuit Court decisions.

CONCLUSION

The petition for a writ of

certiorari should be granted.

Respectfully submitted,

MORTON STAVIS

DORIS PETERSON

c/o Center for

Constitutional Rights

853 Broadway

New York, New York 10003

(212) 674-3304

Attorneys for Petitioner

Dated: New York, New York

June 14, 1977

APPENDIX

Fourteenth Amendment Section l,

Constitution of the United States

Section 1. All persons born or

naturalized in the United States, and sub-

ject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens

of the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

-la-

New York Judiciary Law, §90

(2) The supreme court shall have

power and control over attorneys and

counselliors-at-law and all persons

practicing or assuming to practice law,

and the appellate division of the supreme

court in each department is authorized to

censure, suspend from practice or remove

from office any attorney and counsellor-

at-law admitted to practice who is guilty

of professional misconduct, malpractice,

fraud, deceit, crime or misdemeanor, or

any conduct prejudicial to the administra-

tion of justice; and the appellate division

of the supreme court is hereby authorized

to revoke such admission for any mis-

representation or suppression of any

information in connection with the

application for admission to practice.

(4) Any person being an attorney and coun-

sellor-at-law, who shall be convicted of a felony,

shall, upon such conviction, cease to be an at-

torney and counsellor-at-law or to be competent

to practice law as such.

-2a-

UNITED STATES COURT OF APPEALS

For THE Seconp Cracvuit

oe

No. 438—September Term, 1576.

(Argued January 24, 1977 Decided April 21, 1977.)

Docket No. 76-7380

ows

Artuur F. Turco, Jr.,

Plaintiff- Appellant,

—against—

Tue Monroz County Bar AssociaTIoN, THE APPELLATE

Division or THE SUPREME CouRT, Fourtn JupiciaL Dr-

PARTMENT, JOHN S. Mars, Rem S. Movute, Ricnarp W.

CarpaMonE, Harry D. Gotpman, RicHarp D. Simons,

Watter J. Manonety, Frank Det Veccuio, and G.

Rosert WitTMER, Presiding Justice and Justices of the

Appellate Division of the Supreme Court, Fourth Judi-

cial Department, and Lester Fannine, Chief Clerk of

the Appellate Division of the Supreme Court, Fourth

Judicial Department,

Defendants-A ppellees.

4

@

7

Before:

Awxprrsox, Oakes and Gunrer,

Circuit Judges.

o>

Appeal from an order of the District Court for the

Western District of New York (Burke, D.J.) dismissing

appellant’s amend: ‘omplaint. Appellant, a member of

the New York bar, sought on due process and equal pro-

3109

-3a-

tection grounds an injunction barring enforcement of a

New York court order of disbarment. The Court of Ap-

peals held that appellant’s constitutional claims which had

heen raised in the New York state disbarment proceeding

were harred by the doctrines of res judicata and collateral

estoppel.

Affirmed.

-—_ =

ii ae

Morton Stavis, New York, N.Y. (Doris Peter-

son and Center for Constitutional Rights,

New York, N.Y., of counsel), for Plaintiff-

Appellant.

WrmuuMm J. Kocan, Assistant Attorney Gen-

eral, State of New York (Louis J. Lefko-

witz, Attorney General, and Ruth Kessler

Toch, Solicitor General, of counsel), for

Defendants-Appellees Appellate Division of

the Supreme Court, the Justices and the

Clerk thereof.

MicuakE.t T. Tomarno, Rochester, N.Y. (William

D. Eggers, Rochester, N.Y., of counsel),

for Defendant-A ppellee Monroe County Bar

Association.

-

—

Gurrein, Circuit Judge:

Arthur F. Turco, Jr., a member of the New York Bar,

appeals from an order of the District Court for the West-

ern District of New York (Burke, D.J.) dismissing his

amended complaint. Turco was disbarred by the Appel-

late Division, Fourth Department, by order dated January

28, 1975, Matter of Turco, 46 A.D.2d 490 (4th Dept.),

appeal dismissed, 36 N.Y.2d 713, cert. denied, 423 U.S. 838

(1975). The complaint sought a judgment declaring that

3110

-4a-

the denial of the right of appeal to the Court of Appeals

by attorneys in disbarment proceedings is a denial of fed-

eral due process.’ Turco also sought to enjoin enforcement

of the disbarment order. The defendants are the Monroe

County Bar Association and the Appellate Division and

members of each. Jurisdiction is based on 42 U.S.C. §4 1981,

1983, 1985; 28 U.S.C. §4 1332, 1343(3), 1343(4); and 28

U.S.C. §§ 2201, 2202.

The District Court temporarily enjoined enforcement of

the disbarment order. After Turco in an amended com-

plaint added as defendants the Justices of the Appellate

Division, Fourth Department, and the Chief Clerk, the de-

fendants moved to dismiss the complaint, inter alia, for

lack of jurisdiction and on res judicata grounds. The Dis-

trict Court dismissed the complaint, but continued its

“stay” until the resolution of this appeal.’

I

Turco was admitted to the New York Bar in December

1967. His office was in New York City but his practice,

which in the beginning consisted to a large extent of assist-

ing in the representation of the Black Panther Party and

its members, required him to travel throughout the East.

Trreo’s difficulties with the criminal law began in 1970.

In Febsuary of that year he was arrested in New York City

and charged with possession of weapons, dangerous drugs,

hypodermic instruments and with obstructing government

administration. He was released on bail. In April he

traveled to Canada, apparently without notifying the New

1 Turco later changed this claim from a denial of due process to a

denial of equal protection.

2 Although the District Court termed its action a “stay”, it apparently

intended it to be a continuation of the injunction restraining enforce.

ment of the disbarment order, rather than merely a stay of its own

order.

3111

-5a-

York authorities, to make a speech at McGill University.

While there he learned that he had been indicted in Bal-

timore, Maryland, in connection with the murder on July

12, 1969 of Eugene Anderson, a Black Panther who was

suspected of being a government informer. Turco was

charged with conspiracy to commit murder, assault with

intent to murder, common law assault, and two charges of

soliciting to commit a felony (murder and kidnapping).

Through an attorney in Maryland he attempted unsuc-

cessfully to negotiate a release on bail if he returned from

Canada. He remained in Canada, obtained a false iden-

tification card and assumed the name of Leon Wright. He

testified later that he had ccncealed his identity to avoid

extradition to the United States. Upon his failure to re-

turn to the United States, his bail in the New York case

was forfeited, and he was additionally charged with bail

jumping.

Seven and one-half months after he entered Canada,

Turco was questioned by Canadian authorities in connec-

tion with a general widespread investigation of the kid-

napping of a Canadian official. The officials accidentally

discovered his real identity and learned that charges were

pending against him in the United States. Extradition

proceedings were commenced. Turco waived extradition

and was brought back to Maryland.

In June and July of 1971 he was tried in Baltimore along

with Black Panther codefendants, for the slaying of Eu-

gene Anderson. After three weeks of trial the jury could

not reach a verdict on the charges against him. His co-

defendants were acquitted. Another defendant, whose trial

had been severed, was convicted. Before his retrial he

pleaded guilty, in February 1972, to one charge of common-

law assault in satisfaction of all of the charges in the May

1970 indictments. He was sentenced to a term of imprison-

ment of five years, with execution of the sentence sus-

3112

-6a-

pended. On his appeal the Court of Special Appeals of

Maryland affirmed the judgment of conviction.

In March 1972, after moving to suppress evidence with-

out success, he pleaded guilty in the New York prosecution

to the misdemeanor charge of unlawful possession of a

weapon, in satisfaction of all the charges against him, the

the bail jumping charge being withdrawn. He also ap-

pealed this conviction and the Appellate Term, First De-

partment, unanimously affirmed the judgment without

opinion.

Shortly after Turco’s second guilty plea, the Appellate

Division, Fourth Department, in April 1972, directed that

an investigation be undertaken into Turco’s conduct.’ The

Monroe County Bar Association made such an investiga-

tion and on May 8, 1973, it filed a petition with the Appel-

late Division which alleged that Turco “is or may be guilty

of professional misconduct, crime, misdemeanor or felony.”

Appellant was specifically charged with professional mis-

conduct based on his conviction of two misdemeanors.

A disciplinary proceeding was begun, and Turco re-

sponded with a sixty-one page answer which reviewed his

personal and professional history, including his assistance

in the defense of the Black Panthers, his weapons arrest,

the indictments in Baltimore, his incognito stay in Canada

and the reasons for his guilty pleas. He moved for the

dismissal of the charges against him and, in the alterna-

tive, asked for a full evidentiary hearing to determine

whether he was guilty of the offenses to which he had

pleaded guilty. This request was based on his assertion

that he had entered the guilty pleas under North Carolina

v. Alford, 400 U.S. 25 (1970) (see infra), and that, accord-

3 Tureo after his trial in Baltimore in 1971 left New York City and

moved to Buffalo and then to Rochester, New York, both of which

are in the jurisdiction of the Fourth Department.

3113

-7a-

ingly, he had a right to prove that he was, in fact, not

guilty of the charges to which he had pleaded guilty.

Attached to the Bar .\ssociation’s petition, as exhibits,

were transcripts of the guilty plea proceedings on each

conviction. These transcripts disclosed the other charges

against Turco which had heen covered by the guilty pleas

and included the expected testimony of the government

witnesses. Appellant had stipulated in the Maryland prose-

cution that certain testimony would be given against him

if he elected to stand trial a second time. This testimony

included details of the grucsome torture and murder of

Anderson. According to the government witnesses, Turco

participated in the torture and ordered the murder.‘

The Appellate Division found Turco guilty of profes-

sional misconduct and denied his request for a hearing to

determine whether he was innocent of the charges to which

he had pleaded. The court did, however, grant a hearing

“in mitigation of the discipline to be adjudged.” °

Hearings were held before a Referee. Turco testified,

among other things, that he was innocent of the specific

charges to which he had pleaded guilty. He was not per-

mitted to call witnesses to prove his innocence. He did call

forty-eight witnesses, most of whom were character wit-

nesses who had known him only since he came to Rochester.

4 The man who is alleged to have pulled the trigger had been a co-

defendant with Turco in the first trial and was acquitted. The vivid

narrative of what the prosecution witnesses were prepared to testify to

in the respective state trials is available in the Appellate Division opin-

ion. 46 A.D.2d 490, 494-96 (4th Dept. 1975). :

5 Under New York law, “an attorney convicted of a criminal offense

may introduce evidence in mitigation and explanation in a subsequent

diseiplinary proceeding, [but] he may not relitigate the issne of his guilt

of the offense for which he was convicted.” Matter of Levy, 37 N.Y.2a

279, 280 (1975).

6 See note 3, supra.

3114

-8a-

The Referee submitted his report, and appellant was al-

lowed to file an extensive brief and to have oral argument.

In denying an evidentiary hearing before it appointed

the Referee, the Appellate Division held that North Caro-

lina v. Alford, supra, did not support appellant’s conten-

tion “that he had the right now to prove that he was not

guilty of the charges” to which he had pleaded. The court

noted that in Alford, the Supreme Court merely held that,

as a matter of constitutional law, “it is proper for a court

to accept a defendant’s plea of guilty to a lesser crime in

compromise of an indictment, provided the plea is volun-

tarily made.” There was no claim by appellant that either

guilty plea was involuntary. The court reiterated this rul-

ing in its final opinion disbarring Turco. 46 A.D.2d at 492.

Turco filed a notice of appeal as of right in the Court

of Appeals, upon his constitutional grounds, and, alterna-

tively, moved for an order granting leave to appeal. The

Court of Appeals dismissed the appeal taken as of right

for want of a substantial constitutional question, 36 N.Y.2d

713 (1975), and also denied the motion for leave to appeal,

36 N.Y.2d 642 (1975). Turco’s petition for a writ of cer-

tiorari was denied. 423 U.S. 838 (1975).

While Tureo’s petition for certiorari was pending and

before it was denied, he filed this action in the District

Court. As we have noted, the District Court dismissed

the action, and this appeal followed. The appellees con-

tend that the action is barred by the doctrines of res

judicata, judicial estoppel and full, faith and credit. We

find that all the constitutional issues raised in this action

were raised in the New York Court of Appeals and deter-

mined to be without merit.’

7 The following federal constitutional claims were raised in the Court

of Appeals in Turco’s brief for leave to appeal: (1) denial of due

process: (a) denial of right to present evidence of his innocence in

the disciplinary proceedings; (b) disbarment was based upon allega-

3115

-9a-

Appellant contends that he was denied due process of

law because he was not afforded an evidentiary hearing

on whether the facts and circumstances surrounding his

plea of guilty to a misdemeanor established unprofessional

conduct. The contention is, in effect, that in every case

where an attorney has pleaded guilty to a misdemeanor,

he may, nevertheless, in disharment proceedings prove de

novo that he is not guilty of the charge to which he volun-

tarily waived his right to trial by pleading guilty. The

point is made that under the doctrine of Bazstrom v.

Herold, 383 U.S. 107 (1966), it is a general rule that col-

lateral consequences of a conviction may not be imposed

without a new hearing. But Bazstrom and succeeding

eases cited in support, Specht v. Patterson, 386 U.S. 605

(1967), and Humphrey v. Cady, 405 U.S. 504 (1972), deal

with additional penalties imposed in the absence of an ini-

tial voluntary submission to the consequences. In the case

of a plea of guilty, as distinguished from a plea of nolo

contendere, or a conviction after trial, it is known that the

voluntary plea is likely to result in collateral consequences.

Here the appellant has never asserted that his pleas of

tions, unsupported by any evidence, and not contained in petitioner's

charges against him; (c) appellant was foreclosed from repudiating

allegations not contained in the charge which were relied on by the

Appellate Division; (d) no basis for charging him with criminal con-

victions that were based on an “Alford” plea; and (2) denial of due

process and equal protection because his disbarment was discrimina-

tory and based upon mere suspicion and conjecture and not evidence.

See Notice of Motion, Affidavit and Brief in Support of Motion for

Leave to Appeal to the New York Court of Appeals, dated February,

1975, at 40-41.

He also contended in his notice of appeal as of right that if Judiciary

Law §90(8) was constrved to deny a lawyer an appeal as of right’ from

a disbarment order of the Appellate Division, the statute would be

unconstitutional as a denial of equal protection of the laws, since other

litigants than lawyers had the right of at least one appeal. See Appel-

lant’s Brief In the Matter of Arthur F. Turco, Jr. v. Monroe County

Bar Association, State of New York Court of Appeals, dated February,

1975, at 11-12.

3116

-10a-

eects ns nah me A Rae

guilty were other than voluntary. And there was discus-

sion of the possibility of disbarment as a result of the

plea in each of the proceedings. He contends, further, that

he pleaded guilty with a declaration of innocence, and that,

hence, under North Carolina v. Alford, supra, his plea can-

not be taken as an admission of the charge to which he

pleaded. He further complains, in this regard, that the

stipulated testimony of what the state witnesses would

testify to should not have been considered in the light of

his contentions to the contrary.’ We do not suggest that,

if the general question were before us as res nova, we

would consider the due process argument as entirely frivo-

lous. Each of these points was raised in the Appellate

Division, however, and decided adversely to the petitioner.

The Appellate Division found, upon a study of the sen-

tencing record in Maryland, that appellant had withdrawn

his reliance on Alford before the guilty plea was accepted

by the court. 46 A.D.2d at 498-99. And a disavowal of

reliance on Alford, though not in such unequivocal terms,

was made in the New York plea proceeding, as well. To

the extent that the contentions lack constitutional signifi-

cance, they are not cognizable in the federal courts. To the

extent that they possess such significance, they have al-

ready been determined adversely to appellant on the merits.

Turco claims, however, that the review of his constitu-

tional claims in both the state courts and the Supreme

Court was illusory, and that to bar his claims on the doc-

trine of res judicata “is effectively to prevent any full

consideration of the issues in any forum.” He argues

that the constitutional review by the state courts is de-

fective because they are “particularly unlikely to consider

[their] own procedural deficiencies.” We cannot agree. As

] By pleading guilty, appellant knowingly waived his right to cross-

examine the prosecution witnesses. He stipulated that their proffered

testimony could be considered in the plea bargaining.

3117

-lla-

this court stated in another case involving an attorney in

a New York State disciplinary proceeding, “[t]here is no

reason to assume that [the attorney’s] constitutional rights

will not be protected by the Appellate Division . . .» or, if

further review becomes necessary, by the New York Court

of Appeals.” Erdmann v. Stevens, 458 F.2d 1205, 1211 (2d

Cir.), cert. denied, 409 U.S. 889 (1972).

State courts, as much as federal courts, are bound by

and required to follow the United States Constitution.

Turco, as appellees did in Huffman vy. Pursue, Ltd., 420

U.S. 592 (1975), is “urging [the Court] to base a rule on

the assumption that state judges will not be faithful to

their constitutional responsibilities.” And like the Su-

a Court, “[t]his we refuse to do.” Id., 420 U.S. at

We hold that the constitutional claims of lack of due

process are barred from consideration by the federal dis-

trict court under the doctrines of res judicata and collateral

estoppel. Appellant raised the due process points in both

the Appellate Division and in seeking review in the Court

of Appeals. He emphasizes that he has done so, more-

over, as if it were a point in his favor. He does not ques-

tion that he has raised the same claims in the state courts.

But he contends, rather, that because he raised these con-

stitutional claims as an involuntary respondent in the

state court disbarment proceeding, a federal district court

has jurisdiction to review the adverse constitutional find-

ing of the New York state courts, including the Court of

Appeals, and that this is so even where a petition for

certiorari has already been filed and denied by the United

States Supreme Court. The contention may not be with-

out some merit in logic, in view of the confusion in this

particular field of civil rights review by the lower federal

courts, but it has been forceclosed in this circuit by our

3118

-l2a-

decision in Thistlethwaite v. City of New York, 497 F.2d

339 (2d Cir.), cert. denied, 419 U.S. 1093 (1974), in which

the very argument was made and rejected. There we ap-

plied collateral estoppel in a § 1983 case to a constitutional

determination by a state court. And in Tang v. Appellate

Divieion, 487 F.2d 138, 141 (2d Cir. 1973), cert. denied,

416 U.S. 906 (1974), we barred relitigation of a denial of

admission to the Bar because of lack of jurisdiction, citing

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and

res judicata (Hays, J., concurring).

We do not deal here, therefore, with the slippery ques-

tion involving Section 1983 actions where the state litiga-

tion was involuntary as to the petitioner, and where the

constitutional points could have been raised but were not.

On such a state of facts, the Supreme Court still has to

render a definitive ruling.’ Here the claims were actually

raised, and pursued right up to the Supreme Court. In

these circumstances, we are constrained to hold that the

doctrine of res judicata is applicable, that petitioner may

not have two bites at the cherry, and that the District

Court properly dismissed the action.

Nor is there any doubt that appellant actually did raise

in the Court of Appeals the very constitutional points he

now raises. (See note 7, supra.)

Dismissal by a New York state court because the as-

serted federal constitutional issues were not “issues which

rise to the dignity of constitutional questions” is tanta-

mount to a dismissal of the constitutional issues on the

merits. See McCune v. Frank, 521 F.2d 1152, 1155 (2d Cir.

1975). And we must assume that the Court of Appeals’

9 See dissenting opinion on denial of certiorari in Florida State Board

of Dentistry v. Mack, 401 U.S. 960 (1971). But cf. Preiser v. Rodri-

gruez, 411 U.S 475, 477, 497 (1973); Mertes v. Mertes, 411 U.S. 96)

(1973) (summarily affirming decision of three-judge court, 350 F. Supp.

472 (D. Del. 1972); Huffman v. Pursue, Ltd., 420 U.S. 592, 606 n.18

(1975).

3119

-l3a-

denial of an appeal as of right here, as well as of discre-

tion, determined that the constitutional issues specifically

raised were insubstantial on the merits.

The other argument that requires some discussion is the

contention that appellant was denied equal protection of

the laws because New York law permits an appeal as of

right to every litigant who appears before its courts ex-

cept an attorney charged in a disciplinary proceeding be-

fore the Appellate Division, which for this purpose is the

court of first instance. This argument was also raised in

the Court of Appeals by appellant, see note 7, supra, and

presented in the petition for certiorari.” The claim is

barred by the doctrine of res judicata, as we have seen.

In any event, the same claim was made in Mildner v.

Gulotta, 405 F. Supp. 182 (3 judge court, E.D.N.Y. 1975),

which was summarily affirmed by the Supreme Court, 96

S.Ct. 1489 (1976) (with two justices favoring a postpone-

ment of consideration of jurisdiction on the merits).

If the affirmance of Mildner by the Supreme Court is

determinative of the issue raised on the merits, it is bind-

ing upon us at least until the Supreme Court speaks fur-

ther. The appellees contend that Mildner was a decision

on the merits or, in the alternative, that it stands for the

proposition at least, that a post-disbarment action in the

federal court will not lie where review by the Supreme

Court through the certiorari route is available.

In Mildner the Supreme Court did not dismiss the ap-

peal from the three-judge court order but, as noted, sum-

marily affirmed. This is significant because it had pre-

viously held that a “direct appeal will lie to this Court

under § 1253 from the order of a three-judge federal court

10 Sce Petition in the Supreme Court of the United States for a Writ

of Certiorari to the Supreme Court of New York, Appellate Division,

Fourth Judicial Department, No. 74-1592, filed June 18, 1975, at pages

15-20.

3120

-l4a-

Stow = AGE Se Wi soe BOA eh ERO OA CR Bic INE AIT Cheah te Ecdts SNe hal es oe

= ‘

ee ee a eee ee

ey 2 a=

denying interlocutory or permanent injunctive relief only

where such order rests upon resolution of the merits of

the constitutional claim presented below.” M TM, Inc. v.

Bazley, 420 U.S. 799, 804 (1975). Particularly since Judge

Neaher as well as Judge Moore expressed the view that

the constitutional claim directed against the New York dis-

barment procedures was without merit and did not sup-

port an injunction, we read the affirmance by the Supreme

Court in Mildner, rendered so soon after the decision in

Bazley, to have been on the merits and controlling here.

See Godoy v. Gulotta, 406 F. Supp. 692, 693 n.2 (S.D.N.Y.

1975) (three-judge court).

We consider the other issues raised as either barred by

res judicata or as not meriting discussion.”

Affirmed.

Oaxes, Circuit Judge (concurring):

I believe that Thistlethwaite v. City of New York, 497

F.2d 339 (2d Cir.), cert. denied, 410 U.S. 1093 (1974), and

Tang v. Appellate Division, 487 F.2d 138, 141 (2d Cir. 1973),

cert. denied, 416 U.S. 906 (1974), were wrongly decided,

for the reasons stated in my dissenting opinions in those

cases. Thistlethwaite, like this case, involved an assertion

of federal rights in a state proceeding by an involuntary

party to that proceeding; Tang was erroneously supposed

to involve an election to pursue state remedies, which an

1] We do not discuss abstention in view of our decision for, in this case,

abstention would accomplish nothing, the state courts already having

taken jurisdiction and rendered judgment on the federal constitutional

claims. We recognize that in Mildner, supra, there also had been a

final judgment of disbarment and that Judge Neaher, for himeelf,

nevertheless favored abstention. This may simply have been intended

to suggest that there is no appellate review of disbarment proceedings

in the District Court.

3121

-15a-

applicant for admission to the bar was said to make merely

by applying for admission. I note that Thistlethwaite is in-

consistent with several cases from other circuits, see Thies,

Res Judicata in Civil Rights Act Cases: An Introduction

to the Problem, 70 Nw. L. Rev. 859, 865-66 & n.35 (1976),

and that the Sixth Circuit agrees with the dissenting opin-

ion in Tang, Getty v. Reed, No. 76-1633 (6th Cir. Jan. 5,

1977), slip op. at 6-8. Bat unsound as I helieve Thistle-

thwaite and Tang to be, emasculative as they are of 42

U.S.C. § 1983 and federal constitutional rights, I am bound

to follow them as the law of the circuit. I therefore re-

luctantly concur in the judgment of the court.

3122

-l6a-

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the 23rd

day of May, one thousand nine hundred and

seventy-seven.

Arthur F. Turco, Jr.,

Plaini‘ff-Appellant

Vv.

The Monroe County Bar Association, The

Appellate Divicion of the Supreme Court,

Fourth Judicial Department, John S. Marsh,

Reid S. Moule, Richard J. Cardamone,

Harry D. Goldman, Richard D. Simons,

Walter J. Mahoney, Frank Del Vecchio and

G. Robert Witmer, Presiding Justice and

Justices for the Appellate Division of

the Supreme Court, etc. et. al.,

Defendants-Appellees.

It is hereby ordered that the motion

made herein by counsel for the appellant by

notice of motion dated April 29, 1977 to

stay issuance of the Mandate pending appli-

cation to the Supreme Court of the United

States for a writ of certiorari pursuant to

Rule 41(b) of the Federal Rules of Appellate

Procedure be and it hereby is granted

GRANTED.

ROBERT P. ANDERSON per MIG

JAMES L. OAKES

MURRAY I. GURFEIN,

Circuit Judges

-l17a-

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ARTHUR F. TURCO, JR.,

Plaintiff

Vv. CIVIL 75-100

THE MONROE COUNTY BAR ASSOCIATION, THE

APPELLATE DIVISION OF THE SUPREME COURT,

FOURTH JUDICIAL DEPARTMENT, JOHN S. MARSH,

REID S. MOULE, RICHARD J. CARDAMONE,

HARRY D. GOLDMAN, RICHARD D. SIMONS, WALTER

J. MAHONEY, FRANK DEL VECCHIO, and G.

ROBERT WITMER, Presiding Justice and

Justices of the Appellate Division of the

Supreme Court, Fourth Judicial Department,

and LESTER FANNING, Chief Clerk of the

Appellate Division of the Supreme Court,

Fourth Judicial Department,

Defendants

Morton Stavis

744 Broad Street

Newark, N.J. 07102

and

Robert Napier

620 Reynolds Arcade Building

Rochester, N.Y. 14614

Attorneys for Plaintiff

Michael J. Tomaino

Lincoln First Tower

Rochester, N.Y. 14603

Attorney for Monroe County Bar

Association

Louis J. Lefkowitz

Attorney General of New York

The Capitol, Albany, N.Y. 12224

Attorney for defendants Appellate

Division, Fourth Department and the

Justices and Chief Clerk thereof

(William J. Kogan, Assistant

Attorney General, of counsel)

-18a-

The complaint herein was filed March ll,

1975. It prayed for a permanent injunction

restraining the defendants from enforcing the

order of disbarment dated January 28, 1975

by the Appellate Division of the Supreme

Court, Fourth Department, and a declaratory

judgment declaring that the denial of the

right of appeal by disbarred attorneys is

unconstitutional and a denial of due process

of law.

The plaintiff filed an amended complaint

on May 29, 1975 adding as defendants the

Presiding Justice and Justices of the

Appellate Division and the Chief Clerk.

The Appellate Division, and the Justices

and Chief Clerk thereof, moved to dismiss

the amended complaint for lack of juris-

diction over the subject matter and over the

defendants Appellate Division, and the

Justices thereof, by reason of the plaint-

iff's failure to state a claim upon which

relief can be granted and upon the basis of

res judicata, collateral estoppel, and upon

the provisions of the United States Consti-

tution, Article 4, Section 1. The motion

was submitted for decision on July 28, 1975.

The plaintiff was disbarred by the

Appellate Division, Fourth Department, by

order dated January 28, 1975. The Monroe

County Bar Association brought a disciplinary

proceeding before the Appellate Division

charging that he had been convicted, on his

guilty pleas, of two misdemeanors. The

plaintiff moved to dismiss the petition, or,

in the alternative, for a full evidentiary

hearing at which he would be allowed to

satisfy a fact-finding officer appointed by

the court that he was not guilty of those

charges. He asserted that he had interposed

his guilty pleas under North Carolina vs.

Alford, 400 U.S. 25, under which he claimed

-19a-

he could enter a plea while asserting his

innocence. On December 17, 1973 the Appell-

ate Division found that by reason of the

pleas of guilty the plaintiff had violated

a canon of professional ethics, that he was

bound by the convictions, and that despite

his reliance on Alford, he did not have the

right in a c.isciplinary proceeding to prove

that he was not guilty of the two charges.

The court permitted him to have a mitiga-

tion hearing if he so requested. A mitiga-

tion hearing was held before a Justice of

the Supreme Court appointed to conduct the

hearing and to report his findings without

a recommendation. Neither the hearing nor

the Justice's report dealt with the guilt

or innocence of the plaintiff of the under-

lying charges.

Under New York Law a disbarred attorney

is not allowed an appeal to the Court of

Appeals as of right but must seek permission

to appeal. Leave to appeal was sought but

was denied by the Court of Appeals on Febru-

ary 19, 1975. The amended complaint alleges

that the actions of the defendants had the

purpose and effect of denying plaintiff his

fundamental rights of due process of law and

equal protection of law in violation of the

Fifth, Sixth, Ninth and Fourteenth Amend-

ments to the Constitution of the United

States. It further alleges that plaintiff

was denied due process of law in that his

disbarment was based on allegations un-

supported by evidence, that he was pre-

cluded from introducing evidence of his

innocence, that his disbarment was based

upon allegations not contained in petition,

that he was denied due process of law in

that a guilty plea was considered final and

binding as proof of guilt despite the fact

that it was expressly made under Alford,

that upon the critical question of whether

-~20a-

plaintiff was guilty of professional mis-

conduct the Appellate Division denied him

an opportunity for any hearing and adjudi-

cated the issue upon no evidence, that the

New York disciplinary statute denying

attorneys, unlike all other New York liti-

gants, the right to appeal from disciplinary

proceedings as of right, amounted to a denial

of the equal protection of laws and is un-

constitutional on its face.

Section 90 of the Judiciary Law of

New York provides for automatic disbarment

of an attorney convicted of a felony. On

conviction of a misdemeanor the matter is

left to the judgment and discretion of the

Appellate Division. A conviction of a mis-

demeanor may or may not result in disbarment.

This inquiry as to whether such a conviction

may establish professional misconduct,

plaintiff asserts, requires a full due pro-

cess hearing.

The plaintiff contends that he was not

only denied a hearing on the question

whether his misdemeanor convictions warrant-

ed a finding of professional misconduct, but

that he was denied fair notice of the charges

and an opportunity to present witnesses and

to confront and cross examine his accusors.

The plaintiff contends that while it is

generally true that due process does not

require a state to provide litigants with

appellate review, the same is not true where

the state has failed to provide for a full

and fair hearing in the court of original

jurisdiction. He contends that the Appell-

ate Division did not afford him as least

"one fair hearing" because it adjudicated

him guilty of unprofessional conduct without

hearing testimony on the critical question

whether the guilty pleas established unpro-

fessional conduct, and whether in the light

of the pleas, the plaintiff was in fact

-2la-

guilty.

There is no merit to the contention

that he was denied equal protection of laws

and due process by denial of a right of

appeal to disbarred attorneys. Levin vs.

Gulotta and related cases, Southern District

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

CIVIL ACTION FILE No. 75-100

of New York (three judge court judgment),

affirmed by Supreme Court of the United

States, March 29, 1976.

This court should not interfere in

State disciplinary proceedings, Erdmann vs.

Stevens, 458 F.2d 1205 (2nd Cir. 1972),

cert. denied, 409 U.S. 889. Anonymous vs.

Association of the Bar of the city of New

York, 515 F.2d 427 (2nd Cir. 1975).

The action is dismissed. The plaintiff

shall have a stay for a period of thirty

days from the date of this order to afford

him an opportunity to appeal. If he shall

appeal, he shall have a stay pending the

appeal.

SO ORDERED and ADJUDGED.

HAROLD P. BURKE

United States District

Judge

June 30, 1976.

-22a-

ARTHUR F. TURCO, JR.

Vv. JUDGMENT

THE MONROE COUNTY BAR ASSOCIATION, THE

APPELLATE DIVISION OF THE SUPREME COURT,

FOURTH JUDICIAL DEPARTMENT, et al.

This action came on for (hearing) be-

fore the Court, Honorable Harold P. Burke,

United States District Judge, presiding,

and the issues having been duly (heard) and

a decision having been duly rendered,

It is Ordered and Adjudged that the

action is dismissed. The plaintiff shall

have a stay for a period of thirty days from

the date of this order to afford him an

opportunity to appeal. If he shall appeal,

he shall have a stay pending the appeal.

Dated at Buffalo, New York, this

2nd day of July, 1976.

JOHN K. ADAMS

Clerk of Court

-23a-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

ARTHUR F. TURCO, JR., Civil Action

Plaintiff, No. 75-100

v. AMENDED COMPLAINT

THE MONROE COUNTY BAR ASSOCIATION;

THE APPELLATE DIVISION OF THE

SUPREME COURT, FOURTH JUDICIAL

DEPARTMENT; JOHN S. MARSH, REID S.

MOULE, RICHARD J. CARDAMONE,

HARRY D. GOLDMAN, RICHARD D. SIMONS,

WALTER J. MAHONEY, FRANK DEL VECCHIO,

and G. ROBERT WITMER, Presiding

Justice and Justices of the Appellate

Division of the Supreme Court, Fourth

Judicial Department; and LESTER

FANNING, Chief Clerk of the Appellate

Division of the Supreme Court, Fourth

Judicial Department,

Defendants.

I. PARTIES

A. Plaintiff

1. Plaintiff, Arthur F. Turco, Jr.,

is a citizen of the United States and a

resident of the State of New York, City of

Rochester.

B. Defendants

2. The defendant, Monroe County Bar

Association, is, upon information and

belief, an unincorporated association of

attorneys and maintains its offices for the

conduct of its affairs at the Reynolds

Arcade, Rochester, New York.

3. The defendant, the Appeliate Divi-

sion of the Supreme Court, Fourth Judicial

-24a-

Department, is established pursuant to the

laws of the State of New York. The Appell-

ate Division has original jurisdiction con-

cerning matters of attorneys’ admission to

the Bar and any disciplinary actions concern-

ing attorneys.

4. The defendants, John S. Marsh, Reid

S. Moule, Richard J. Cardamone, Harry D.

Goldman, Richard D. Simons, Walter J.

Mahoney, Frank Del Vecchio, and G. Robert

Witmer, are the Presiding Justice and the

Justices of the Appellate Division of the

Supreme Court, Fourth Judicial Department.

The defendant, Lester Fanning, is the Chief

Clerk of the Appellate Division of the

Supreme Court, Fourth Judicial Department.

Ii. JURISDICTION

5. This is an action for injunctive

and declaratory relief under Rule 57 of the

Federal Rules of Civil Procedure, author-

ized by Title 42 U.S.C., Sec. 1981 et seq.,

to secure rights, privileges, and immunities

established by the Fourteenth Amendment to

the Constitution of the United States.

Jurisdiction is also conferred on this Court

by Title 28, U.S.C., Secs. 1331, 1332, and

1343(3) and (4), providing for original

jurisdiction of this Court and suit author-

ized by Title 42, U.S.C., Secs. 1983 and

1985. Jurisdiction is further conferred on

this Court by Title 28, U.S.C., Secs. 2201

and 2202.

IiI. STATEMENT OF FACTS

6. On or about April 1972, pursuant

to an order by Presiding Justice Harry

Goldman of the Appellate Division of the

Supreme Court, Fourth Judicial Department,

Alex Gossin, Esq., a member of the Monroe

County Bar Association, Grievance Committee,

-25a-

was ordered to investigate and report to the

Appellate Division two misdemeanor convict-

ions concerning the plaintiff herein.

7. Several times thereafter, Alex

Gossin spoke with the plaintiff herein con-

cerning the two misdemeanor pleas. Plaintiff

spoke at length with Mr. Gossin, explaining

all the surrounding the circumstances of

said pleas, and also informed Mr. Gossin

that he could present evidence concerning

his innocence. Alex Gossin agreed at a

future time and date to meet with the plaint-

iff herein to examine said evidence.

8. On May 8, 1973, the Monroe County

Bar Association filed < netition charging

the plaintiff with two misdemeanor con-

victions. The petition was filed in the

Appellate Division, Supreme Court, Fourth

Judicial Department.

9. The petition filed by the Monroe

County Bar Association charges the plaintiff

with two guilty pleas, both misdemeanors.

10. In September, 1973, the plaintiff

moved to dismiss the petition, or in the

alternative for a full evidentiary hearing

on these charges since he had interposed

pleas of guilty under the case of North

Carolina v. Alford, 400 U.S. 25, in which

he was allowed to assert his innocence while

taking the pleas.

ll. The Appellate Division on December

17, 1973, rejected the contentions raised

and the motion to dismiss, and concluded

that by reason of the pleas of guilty, the

plaintiff had violated the canon of pro-

fessional ethics, that he was not allowed

a full hearing to explain and go behind the

pleas of guilty, but that they would allow

the plaintiff a mitigation hearing on

-26a-

character only.

12. On March 28, 1974, the mitigation

hearing was commenced before the Hon. Lyman

H. Smith, a Justice of the Supreme Court of

the State of New York, and was continued

from time to time until May 21, 1974, when

it was concluded.

13. During the mitigation hearing,

there was no evidence whatsoever produced

concerning the guilt of plaintiff to the

two misdemeanor pleas.

14. During said mitigation hearing,

there was no evidence whatsoever produced

concerning anything negative about plaint-

iff's character.

15. At the conclusion of the mitigation

hearing, plaintiff's attorney, Harold P.

Fahringer, read to the hearing officer all

the evidence that plaintiff would produce

to show that he was innocent of the two

misdemeanor charges. However, Judge Lyman

Smith said that he could not accept such

evidence pursuant to the Appellate Division

order dated December 17, 1973.

16. Judge Smith's report was filed on

October 25, 1974, with the Appellate Divi-

sion, Fourth Department. Judge Smith, who

was directed by the Appellate Division to

report his findings to the Court without

recommendations, summarized his conciusions

by stating:

"His dedication to and professional

representation (after admission to

the bar) of indigent black defend-

ants without financial reward and

at considerable risk to his personal

reputation (and, inferentially, to

his personal safety) during

-27a-

a volatile period in the 1960's

marked by racial and ethnic con-

frontation, and by student unrest,

not only in the United States

but throughout the world."

After said mitigation hearing and Judge

Smith's filing his findings with the Appell-

ate Division on October 24, 1974, plaintiff

submitted a brief which stated in part that

no evidence whatsoever was produced concern-

ing plaintiff's guilt and in light of the

fact that 48 witnesses testified on his be-

half and over 200 persons signed petitions

of his good character, no discipline should

be meted out.

17. On January 28, 1975, the Appellate

Division, Fourth Judicial Department, ren-

dered its judgment disbaring the plaintiff.

18. The decision of the Appellate

Division dated January 28, 1975, disbaring

the plaintiff, contains over 14 pages based

upon mere allegations which the plaintiff,

by the Appellate Division order, was pre-

cluded from refuting. Said allegations,

unsupported by any evidence, are totally

false.

19. The Appellate Division, by its

own order dated December 17, 1973, did not

allow plaintiff to go behind the two con-

victions to prove his innocence; however,

by its decision, the Appellate Division

went far behind that order and found as

fact, mere allegations which the defendant

was not even advised that he was being

charged with.

20. On February 3, 1975, the Hon. Sol

Wachtler, Associate Judge of the Court of

Appeals, signed a stay, pending motion to

the Court of Appeals for leave to appeal.

-28a-

21. On February 17, 1975, the plaintiff

did submit to the Court of Appeals a motion

for leave to appeal.

22. Pursuant to the laws of the State

of New York, an attorney is not allowed an

appeal to the Court of Appeals as a matter

of right, but must seek permission of said

Court to appeal.

23. On February 19, 1975, the Court of

Appeals of the State of New York denied

plaintiff permission to appeal.

24. On February 24, 1975, the original

stay granted ty Justice Wachtler of the

Court of Appeals terminated.

IV. CAUSE OF ACTION

25. The actions of the defendants, as

set forth above, have the purpose and/or

effect of:

a) Denying to the plaintiff his

fundamental rights of due process of law,

all in violation of the Fifth, Sixth, Ninth,

and Fourteenth Amendments of the United

States Constitution.

b) The plaintiff was further denied

due process of law because his disbarment

was based upcn allegations unsupported by

any evidence. In fact, there is evidence of

plaintiff's innocence, as part of the Court

record in the State of Maryland, which the

plaintiff offered to introduce, but was pre-

cluded by the Appellate Division order dated

December 17, 1973.

c) The plaintiff was further denied

due process because his disbarment is based

upon allegations not contained in the Bar

Association's petition of charges against

-29a-

him, thus denying plaintiff the fundamental

right of due process of being notified of the

charges pending against him.

d) Plaintiff was further denied the

fundamental right of due process of law be-

cause he was foreclosed from repudiating the

allegations which were not contained in the

Bar Association's petition but were relied

upon by the Appellate Division in its judg-

ment of disbarment.

e) The plaintiff was further denied

due process of law and equal protection of

the law because his disbarment was discrim-

inatory and based upon mere suspicion and

conjecture rather than evidence.

f) The plaintiff was further denied

due process of law because the two pleas

entered were based upon the doctrine of

North Carolina v. Alford, in which the plain-

tiff asserted his innocence at the time of

taking the pleas, and was thus precluded

from raising that same question of innocence

during said disciplinary proceeding.

g) Plaintiff was further denied due

process in that the Appellate Division

denied any due process hearing on the quest-

ion whether misdemeanor convictions estab-

lished professional misconduct.

h) The plaintiff was further denied

due process of law in that the denial by the

Court of Appeals of leave to appeal is a

violation of the Constitution of the United

States. The Appellate Division, ina

disciplinary proceeding, acts as a court of

original jurisdiction which, pursuant to the

Rules of the Court of Appeals, does not

grant an attorney the right to appeal but

requires him to seek permission, all in vio-

lation of the due process of law provided

-30a-

ee SE EE ee ee ee

for in the Constitution of the United States.

26. The actions on behalf of the defend-

ants, Monroe County Bar Association, Appell-

ate Division of the Supreme Court, Fourth

Judicial Department, and the individual

defendants, the Presiding Justice and Jus-

tices of the Appellate Division, and the

Clerk of said Division, together, have

denied the plaintiff his most fundamental

rights of due process and equal protection

of the law, as guaranteed by the Fifth,

Sixth, Ninth and Fourteenth Amendments to

the Constitution of the United States, in

that, among other things, the Appellate

Division and the Monroe County Bar Associa-

tion and the individual defendants, by court

order, refused to let the plaintiff introduce

evidence of his innocence and go behind the

two pleas entered, while in the Appellate

Division a decision of disbarment, date

January 28, 1975, went far behind said

pleas and found as fact, unsupported

allegations, while denying the plaintiff the

opportunity to disprove said allegations by

introducing evidence, part of which is con-

tained as a matter of court record in the

State of Maryland.

27. Unless this Court restrains and

enjoins the defendants from enforcing their

Order of Disbarment, the plaintiff will

suffer and continue to suffer serious,

immediate, and irreparable injury in that:

a) Said disbarment will have the

immediate effect of interfering and imped-

ing efforts of the plaintiff to prepare

adequately for the defense of certain de-

fendants now or about to face trial.

b) Said disbarment against the plain-

tiff will have an immediate and irreparable

effect upon the exercise of fundamental

-3la-

due process rights of the Constitution of

the United States.

c) The said disbarment of the

plaintiff has resulted in serious and

irreparable injury to his professional rep-

utation as a lawyer and has illegally and

unconstitutionally punished and penalized

him without due process of law, as well as

subjected him to public scorn and ridicule.

d) The said disbarment of plaint-

iff has resulted in unemployment and loss

of income, which damage threatens his

livelihood and that of his wife and two

small children.

28. The plaintiff has no adequate

remedy at law.

29. No previous application for the

relief sought herein has been made to this

or any other Court.

WHEREFORE, plaintiff prays for the

following relief:

1. That a permanent injunction be

issued:

a) Restraining the defendants and

each of them, their agents, employees and

attorneys and all others acting in concert

with them and their successors, from en-

forcing the Order of Disbarment dated Janu-

ary 28, 1975, by the Appellate Division of

the Supreme Court, Fourth Judicial Depart-

ment.

b) That a Declaratory Judgment

issue declaring that the denial of the right

of appeal by the State of New York, as

applied to attorneys pursuant to New York

Judiciary Law, Sec. 90, and Article 6,

-32a-

Sec. 3 of the New York Constitution, when the

Appellate Division is sitting as a court of

original jurisdiction, is unconstitutional

and a denial of due process of law, as

defineu by the Constitution of the United

States.

2. That this Court grant plaintiff

such other and further relief as may seem

to it to be appropriate.

Attorneys for Plaintiff

MORTON STAVIS

744 Broad Street

Newark, New Jersey 07102

CHARLES GARRY

1256 Market Street

San Francisco, Calif.

RAMSEY CLARK

Attorney of Counsel for

Plaintiff

37 West 12th Street

New York, New York

LEONARD I. WEINGLASS

Attorney of Counsel for

Plaintiff

2902 1/2 Ocean Front Walk

Venice, Calif.

WILLIAM M. KUNSTLER

Attorney of Counsel for

Plaintiff

853 Broadway

New York, New York 10003

-33a-

MARGARET L. RATNER

Attorney of Counsel for

Plaintiff

351 Broadway

New York, New York

DORIS PETERSON

Center for Constitutional

Rights

853 Broadway

New York, New York 10003

ROBERT NAPIER

620 Reynolds Arcade

Rochester, New York

Dated: May 29, 1975

-34a-

December 17, 1973

APPELLATE DIVISION

OF THE

SUPREME COURT

STATE OF NEW YORK

FOURTH JUDICIAL DEPARTMENT

PRESENT: DEL VECCHIO, J.P., MARSH, MOULE,

CARDAMONE, SIMONS, J.J.

In the Matter of ARTHUR F. TURCO, Jr,

an attorney, Respondent,

Monroe County Bar Association,

Petitioner.

Upon reading and filing the peti-

tion of the Monroe County Bar Associa-

tion, verified the 8th day of May,1973

by Anthony R. Palermo, President, alleg-

ing that respondent is or may be guilty

of professional misconduct in his office

as an attorney and, counselor at law, to-

gether with the exhibits annexed there-

to, the answer of Arthur F. Turco, Jr.,

filed the 2lst day of June, 1973, in

which he requests that the charges be

dismissed, or, in the alternative, for

other relief, together with the appendix

annexed thereto, and after hearing Mr.

Bruce E. Hansen and Mr. Michael F.

Tomaino, of counsel for petitioner, and

Mr. Harold P. Fahringer, of counsel for

respondent, and due deliberation having

been had thereon,

a

This Court hereby finds that re-

spondent is guilty of professional mis-

conduct in his office as an attorney

and counselor at law, and

It is hereby ORDERED, that if re-

spondent desires a hearing in mitigation

of the discipline to be adjudged, he may

so advise the Court within twenty days

‘from the date of the entry of this order

and such hearing will be accorded to

him.

Memorandum: In Maryland, respon-

dent was indicted and tried for conspir-

acy to commit murder, assault with in-

tent to murder and other crimes. After

the jury disagreed and a néw trial was

ordered, respondent plead guilty to

common law assault. Thereafter, re-

spondent was arrested and charged in the

Criminal Court of the City of New York

with possession of dangerous weapons

and ammunition therefor, possession of

dangerous drugs and other crimes. He

plead guilty to possession of a danger-

ous weapon in violation of $265.05 of

the Penal Law in full satisfaction of

these charges and an additional charge

of jumping bail and fleeing the juris-

diction. By reason of the above two .

convictions of respondent the Monroe

County Bar Association has petitioned

this Court under Section 90 of the

Judiciary Law for disciplinary action

against him. In his answer, respondent

admits the convictions but seeks to

prove that in fact, he was not guilty

-36a-

of the charges to which he plead guilty;

and he asserts that the petition is in-

sufficient in law and he moves for its

dismissal. We conclude that the peti-

' tion is sufficient and that the motion

should be denied. We also conclude that

North Carolina v. Alford (400 U.S. 25),

on which respondent relies, does not

Support his contention that he has the

right now to prove that he was not

guilty of the charges as he plead. In

Alford, supra, the court merely held

that it is proper for a court to accept

a defendant's plea of guilty to a lesser

crime in compromise of an indictment,

provided the plea is voluntarily made

(see, in accord, People v. Clairborne,

29 N.Y. 2d 950; People v. Foster, 19

N.Y. 2d 150; People v. Griffin, 7 N.Y.

2d 511). No claim is made here that

respondent's pleas were not voluntary.

Although respondent suggests that

his pleas were reluctantly made and were

Similar to pleas nolo contendere and

hence of no effect in another proceeding

(see Matter of Kimball, 33 N.Y. 2d 5)

the plea of nolo contendere has been

abolished in New York (Ando v. Woodberry,

8 N.Y. 2d 165, 170), and the records of

respondent's pleas show conclusively

that they were nothing less than pleas

of guilty to reduced charges. In the

absence of a contention that respondent

has evidence "which was unavailable to

him" at the time of those pleas (see

Matter of Keogh, 17 N.Y. 2d 479, 481),

we deem the two convictions to be final

and binding upon him.

-37a-

These acts of which respondent

stands convicted constitute professional

misconduct on his part in violation of

Canons of Professional Ethics, Nos. 29

and 32, and of the Code of Professional

Responsibility, Disciplinary Rules, No.

1-102(A)(3)(5) and (6), namely, that a

lawyer should strive at all times to

uphold the honor and maintain the integ-

rity of the profession, and will find

his highest honor as an honest man; and

that he will engage in no illegal con-

duct involving moral turpitude or that

is prejudicial to the administration of

justice or that adversely reflects on

his fitness to practice law. For such

misconduct respondent should be dis-

ciplined.

If respondent desires a hearing in

mitigation of the discipline to be ad-

judged, he may so advise the court with-

in 20 days of the entry of the order

hereon, and such a hearing will be ac-

corded to him.

It is hereby further ORDERED, that

pursuant to Judiciary Law, §90, this

Order, being intermediate, is confiden-

tial and not published.

Enter.

LESTER A. FANNING

-38a-

THIS OPINION IS UNCORREC-

TED AND SUBJECT TO RE-

VISION BEFORE PUBLICATION

IN THE NEW YORK REPORTS

STATE OF NEW YORK SUPREME COURT

APPELLATE DIVISION FOURTH DEPARTMENT

In the Matter of Arthur F. Turco, Jr.,

an attorney, Respondent,

Monroe County Bar Association,

Petitioner.

Decided: January 28, 1975

PRESENT: HON. JOHN S. MARSH, Presiding

Justice

HON. REID S. MOULE,

HON. RICHARD D. SIMONS,

HON. WALTER J. MAHONEY,

HON. FRANK DEL VECCHIO,

Associate

Judges

APPEARANCES:

MICHAEL T. TOMAINO

Nixon, Hargrave, Devans & Doyle

Lincoin First Tower

Rochester, New York 14603

Attorney for Petitioner

BRUCE E. HANSEN, ESQ.

Wiser, Shaw, Freeman &

Van Graafeiland

Lincoln First Tower

-39a-

Rochester, New York 14603

Attorney for Petitioner

HERALD PRICE FAHRINGER, ESQ.

One Niagra Square

Buffalo, New York 14202

Attorney for Respondent

-40a-

OPINION

Per Curiam:

Respondent was admitted to the New

York Bar on December 21, 1967 in the

First Department. He practiced law in

the metropolitan area d environs for

several years, and in August, 1971 he

moved to Rochester, employed as attorney

for the new Bail Fund established in

Rochester. After six months that em-

ployment terminated and he entered pri-

vate practice in Rochester and vicinity.

In February, 1972 in Baltimore,

Maryland he entered a plea of guilty of

common-law assault, a misdemeanor, in

satisfaction of May, 1970 indictments

against him and others, including a

charge of conspiracy to murder and as-

sault with intent to murder, and he was

sentenced to a term of five years in the

custody of the Department of Correction;

but the sentence was suspended and he

was released on condition of good be-

havior for five years. In respect of

this, the sentencing judge said,"If, as

Mr. Kunstler suggests, Mr. Turco intends

to leave Maryland and take up his ac-

tivities elsewhere, I can see no useful

purpose to be served by active super-

vision by the Probation Department."

Thereafter, on March 8, 1972 in the

Criminal Court of the City of New York,

New York County, respondent entered a

plea of guilty of unlawful possession of

a weapon in violation of Section 265.05

-ha—

of the Penal Law, as a misdemeanor, in

satisfaction of multiple charges made

against him and another in February,

1970, including possession of dangerous

weapons and drugs, and, later, bail

jumping and fleeing the jurisdiction,

and he was given a sentence of condi-

tional discharge. He continued to prac-

tice law in the Monroe County area.

Under date of May 8, 1973, follow-

ing a year-long investigation, the

Monroe County Bar Association filed a

petition with this Court attaching

thereto the proceedings underlying the

above convictions, end asked this Court

to determine whether respondent should

be disciplined by reason of such convic-

tions. Respondent appeared, interposed

an extensive answer and moved for change

of venue to the First Department, and,

in case that was denied, for a hearing

on the validity of the convictions as

predicates for disciplinary proceedings.

We denied the motion for change of

venue and received briefs on the ques-

tion of the right of respondent to pre-.

sent evidence to prove that in fact he

was not guilty of the crimes for which

_he was convicted. In support of his

contention, respondent relied on North

Carolina v. Alford (400 U.S. 25).

We concluded that the Alford case

does not support respondent's contention;

that in Alford, supra, the court merely

held that it is proper for a court to

accept a defendant's plea of guilty to a

lesser crime in compromise of an indict-

~da-

ment, provided the plea is voluntarily

made (see, accord, People v. Clairborne,

29 N.Y. 2d 950; People v. Foster, 19

N.Y. 2d 150; People v. Griffin, 7 N.Y.

2d 511). As we shall point out later

herein, no claim is made, nor can there

be, that either of respondent's above

guilty pleas was involuntary.

Although respondent suggested that

his pleas were reluctantly made and were

similar to pleas of nolo contendere and

hence of no effect in another proceeding

(see Matter of Kimball, 33 N.Y. 2d 586),

the plea of nolo contendere has been

abolished in New York (Ando v. Woodbury,

8 N.Y. 2d 165, 170) and tne records of

respondent's pleas show conclusively

that they were notning less than pleas

of guilty to reduced charges to avoid

convictions for the more serious char-

ges and the severe sentences likely to

be imposed thereon. We ruled, there-

fore, that in the absence of a conten-

tion that respondent has evidence

"which was unavailable to him" at the

time of those pleas (see Matter of

Keogh, 17 N.Y. 2d 479, 481) the con-

victions were final and binding upon

nim. We concluded that the acts to

which respondent pleaded guilty con-

stitute professional misconduct on his

part in violation of Canons of Profes-

sional Ethics, Nos. 29 and 32, and of

the Code of Professional Responsibility,

Disciplinary Rules No. 1-102 (A)(3)(5)

and (6), namely, that a lawyer should

strive at all times to uphold the honor

and maintain the integrity of the pro-

fession and will find his highest honor

-i3a-

as an honest man and as a patriotic and

loyal citizen, and that he will engage

in no illegal conduct involving moral

turpitude or that is prejudicial to the

administration of justice or that ad- |

versely reflects on his fitness to prac-

tice law; and that for such misconduct,

respondent must be disciplined. We gave

respondent the opportunity, however, to

have a hearing in mitigation of the dis-

cipline to be adjudged.

Respondent requested such a hear-

ing, and a justice of the Supreme Court

was designated to hear and report the

evidence presented on such hearing. The

hearing was held over a period of seven

days and is contained in 800 pages of

minutes. Respondent called over 45 wit-

nesses, about 40 of whom were from the

Rochester area who did not know respon-

dent before he came to Rochester in

197i and did not know anything of his

prior conduct. They testified to his

high ability as a lawyer and his good

character. The hearing justice gave

respondent full leeway and opportunity

to explain his conduct and his reasons

for pleading guilty. Respondent's tes-

timony and supporting evidence submitted

in refutation of the evidence which the

State's Attorney in Maryland and the

District Attorney in New York stated to

tne respective courts that they would

present on trial of respondent if he dia

not plead guilty, was detailed and quite

complete. In consideration of the mat-

ter of mitigation we have reviewed the

evidence underlying the charges against

~ia-

respondent which led to his plea of

guilty in each of his convictions, and

his explanations thereof.

In 1968, soon after he was admitted

to the Bar, respondent began employment

by William Kunstler in Manhattan. He

soon was engaged in representing the

Black Panther Party. He testified that

Messrs. Kunstler, Lefcourt and he were

the first attorneys to represent the

Black Panthers on the East coast of the

United States, that their services re-

quired respondent's appearance in vari-

ous cities from New England southerly in

the East coastal States to Maryland, and

that the services were rendered for lit-

tle or no fee, as the circumstances re-

gGuired. He also represented other in-

digent persons. He assisted Mr.

Lefcourt in a nine-months' trial of the

so-called "Panther 21" in New York City.

In February, 1969,members of the

Black Panther Party in Baltimore,

Maryland were accused of arson, bombing

and other crimes. Members of that Party

whe were residents in New York were ex-

tradited to Maryland, and respondent

went there to represent them. From the

statement of testimony which the State's

Attorney of Maryland advised the Crim-

inal Court of Baltimore, at the time of

respondent's conviction there, that he

was prepared to present against respon-

dent upon his second trial and which re-

spondent stipulated would be the testi-

mony against him, it appears that in the

early summer of 1969 respondent was en-

-45a-

gaged in rendering more than normal le-

gal services for the Black Panthers in

Maryland. He joined members of the

Black Panther Party on the streets of

Baltimore in passing out editions of the

Panther paper; he presided over politi-

cal action classes of the Black Panther

Party; and he took an active part in the

activities of that Party there. He tes-

tified that he also traveled to many

eastern United State cities, setting up

police control districts, a project

Sponsored by the Black Panthers, and he

advised the Party in connection there-

with.

It was stipulated before the

Maryland court that if the second trial

of respondent were to proceed, the

State's witnesses would testify to the

following facts:

In early July, 1969, one Eugene

Leroy Anderson joined the members of the

Black Panthers Party and respondent in

the distribution of Black Panther liter-

ature on the streets of Baltimore. On

July 10 Anderson appeared at the Black

Panthers' headquarters in Baltimore and

became involved in an argument with cer-

tain members there. It appears that a

Captain of the Panthers had been demoted

and some members wanted him restored.

There was also suspicion that some mem-

bers were divulging to the police cer-

tain Black Panther activities. A number

of Black Panthers forcibly carried

Anderson upstairs, followed by respon-

dent. There Anderson was slapped,

punched and beaten. On one occasion he

tes

fell against a file cabinet and respon-

dent grabbed him and threw him to the

fioor, and another member kicked him in

the groin causing him to yell out in

pain. A cloth was stuck in his mouth to

quiet him. Water in a pan was brought

to boil. sugar was put into it and a

hunting dagger was heated in it. The

dareer was then placed in the skin under

his eye and turned "rolling it down the

face, which removed the first layer of

skin on Anderson's face." The same

thing was then done to his chest. A

member took Anderson by the head, placed

a .38 caliber revolver against it and

said that he was going to kill him.

Another member lit a cigarette and

placed it against Anderson's face under

his eye, burning him. Members present,

including respondent, continued beating

Anderson, sometimes with bed slats. Re-

spondent then said, "We car't keep him

here; we have to off him," meaning "We

have to get rid of him [Anderson], we

have to kill him." Anderson was kept

there under guard all nigsht and the next

day, and was tied up and put in a clo-

set. Anderson was called a "nig" who had

been caught-- apparently squealing.

Two Black Panther members, Loney

and Wyche, who had surppvorted the demoted

Captain, were berated by one Mitchell.

Respondent was present at che time and

encouraged Mitchell in his derogatory

remarks against them. Mitchell and re-

spondent told them that they could get

back in the good graces of the Party by

disposing of Anderson and respondent

told them to "go ahead and do what they

had to do with Anderson."

-47a-

The State's Attorney stated to the

court that Loney would testify that

Wyche and he, with one Johnson, then

drove out to find a spot where they

could kill Anderson, and they found one.

That night after respondent had finish-

ed presiding over a Black Panther poli-

tical action class, he told Wyche and

Loney to "go and do what you have to

do," meaning "get rid of Anderson."

Later that night, July 11, Wyche, Loney,

Johnson, Young and another got a gun and

took Anderson in an automobile to the

spot previously selected. Loney stayed

in the car while the others took

Anderson into the woods. Loney heard

the gun blast, and the escort soon re-

turned without Anderson. Wyche reported

that he had shot Anderson.

The State's Attorney stated that

another witness, Barbara Zentz, would

testify that she expected respondent to

come to her house that evening on a

social visit. He was late, and she fell

asleep waiting for him. He came after

1:30 a.m. on July 12 and awakened her.

He was extremely agitated and had a re-

volver in his hand which he waved, and

he said that if "they" (meaning the

authorities) came to get him, "he would

‘take some of them with him." He asked

her to hide him but she declined.

In October, 1969 the body of

Anderson was found in Leakin Park,

Baltimore, and it was duly identified.

-48a-

On February 22, 1970 in Manhattan,

New York the police, acting on a tip,

apprehended four adults and found that

one of them was carrying an automatic

gun. They arrested the four and were

about to place them in police cars to

take them to the stationhouse when three

otner men appeared, one being Alan

Weiser, a lawyer. He told the police

that they had no right to arrest the

four or take them in, and he stood be-

tween the men and the police cars to

prevent such police action. The other

two with Weiser aided him, and so the

police also arrested the three. Weiser

gave his address as 674 W. 16lst Street,

Apartment 6-G.

Officers Valois and Nichols then

went to that apartment and kocked. Some-

one within asked who was there, and they

replied "Police officers." It happened

that there was an uncovered peephole in

the door, and Officer Valois looked in

and saw a man standing there holding a

gun in his hand. The man (James Grace)

dropped the gun and started running

down the hall of the apartment. Officer

Valois broke into the apartment and

found that the gun was a M-1 carbine

loaded with a banana clip of 30 rounds

of bullets. He caught Grace in the kit-

chen and he called out that everyone was

under arrest. Respondent and two giris

then came out of a door near the kitchen.

In the living room the officers saw a

shotgun leaning against the window and

l2 live shells on the windowsill; and

they found on an end table two plastic

ema

bags, one containing marijuana and the other 125

green pills. While Officer Nichols was lining

up his prisoners he heard a door open to his

left. He looked and saw into a room next to the

kitchen holstered revolvers and bando-

liers full of shells on top of a valise

only about five feet from him. He im-

mediately seized them,

Respondent then spoke up, saying,

"What are you puys doing? All these suns

are registered." Officer Nichols said,

"What about the small guns?", and re-

spondent answered,"These weapons are all

mine and they are all registered." Re-

spondent admitted that he and his girl-

friend, whom he later married, were also

living in the apartment.The officers

found 75 hypodermic needles in the

apartment; and they learned that the re-

volvers were not registered or licensed,

On February 23, 1970, Weiser and

respondent were charged with possession

of dangerous weapons, dangerous drugs,

hypodermic instruments and obstructing

government administration. Respondent

pled not guilty and he was released on

bail. His motion to suppress the guns,

ammunition, drugs and his statements

that the guns were his was dented,

On the mitigation hearing herein,

respondent testified that in the course

of his activities in behalf of liberal.

causes he made many speaking appearan-

ces and that in late April, 1970 he

went to Montreal, Canada to make a

speech at McGiil University, intending

-50a-

to return in a day or two. The fact

that he was out on bail did not deter

him from leaving the State without ner-

mission. He did not, however, spear in

Montreal.

On May 1, 1979 respondent was ine

dicted in Maryland along with Mitchell,

Wyehe and another for conspiring to mur-

der Eugene Leroy Anderson on July 11,

1969: and he also was indicted with

Mitchell and others for assaulting

Anderson with intent to murder him and

for common law assault. Respondent ter-

tified that McGill University cancelled

his speech on learning of his indictment.

Respondent learned of the indictment al-

most immediately and he testified that

through an associate attorney in Balti-

more he unsuccessfully negotiated to be

released on ball if he returned to Mary-

land.

Respondent remained in Canada for

7 1/2 months. During this time he for-

ged a lost identification card which

came into his possession, falsifyine it

as his own, and he assumed the name of

Leon Wright. He made no attempt to a0-

pear in the case pending against him in

Manhattan and his bail there was for-

feited. In mid-October, 1970 an offic-

ial in Canada was kidnapped, a state of

emergency was declared and the police

investigated thousands of persons. In

the course of this investigation, re-

spondent was "picked uo" and he gave his

name as Leon Wright, using his false

identification card. His identity was

discovered, however; and the police, on

-5{a-

learning that he was under indictment

for murder in Maryland, notified the

Maryland authorities, and they began an

extradition proceeding against him.

In the course of such extradition

proceeding, respondent signed a waiver,

and in mid-December, 1970 he returned to

Maryland with two Maryland police offic-

ers, where he was kept in jail until the

end of his three weeks' trial in June

and July, 1971. The jury acquitted the

other defendants indicted with respon-

dent, but they disagreed as to him. He

was then released on bail, awaiting a

new trial, and in the following month he

first came to Rochester, as before

stated. Although the other above-men-

tioned persons indicted with respondent

were acquitted, one Irving Young was

tried separately for the murder of

Eugene Leroy Anderson and he was convice-

ted thereof.

In February, 1972 the State's case

against respondent in Maryland came on

for retrial. At that time on February

14, 1972 respondent was represented by

Mr. Buchman of Baltimore and Mr. Kunstler

of New York. Only one of the four in-

dictments (Nos. 2313, 2314, 2315, 2316)

against respondent was called for trial,

to wit, No. 2314, and Mr. Buchman stated

that respondent would plead guilty to

the second count thereof, that is, com-

mon law or simple assault, in satisfac-

tion of all the indictments against him.

The State's attorney told the court that

the State recommended accepting the plea,

being mindful that the first trial took

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three weeks and that the second trial

would probably take longer, that re-

spondent had already spent many months

in jail awaiting the first trial, and

that by pleading guilty to assault, re-

spondent was exposing himself to sance-

tions by the Bar Assoctation of the

State of New York and would be subject

to disbarment proceedings in New York,

Before considering whether the court

would accept respondent's plea with the

State's approval, Presiding Judge J.

Harold Grady had respondent sworn and

he questioned him to ascertain whether

his plea was voluntarily made. The

court elicited that respondent was an

attorney al law and fully acquainted

with the law of his case and his legal

rights and had thoroughly discussed his

case with his attorneys before offering

to make his plea and was doing so vol-

untarily.

The court then called upon the

State's attorney to present for the re-

cord the evidence which the State asser-

ted supported the guilty plea. The

State's attorney stated that respon-

dent's attorney had stipulated that the

evidence which the State's attorney was

about to recite, including the names of

the respective witnesses, would be the

State's proof if the case proceeded to

trial, and respondent's attorney agreed

that such was the stipulation. The

substance of such testimony was set

forth above in describing the events

Surrounding the beating and shooting of

Eugene Leroy Anderson. The testimony

-5 3a-

also described the use by respondent of

the falsified identification card in

Canada and the false name of Leon Wright

and the fact that he remained in Canada

for 7 1/2 months until termination of

the extradition proceedings against him,

Following such statement of the

State's evidence, Mr. Kunstler, for re-

spondent, stated the nature of the evi-

dence which the defense would present

were the case to proceed to trial. He

Stated that he would present evidence

to show that respondent was in New York

City, not Baltimore, on July 10 through

July 12, 1969; and Mr. Kunstler stated

that respondent contends that "he was

totally innocent of all the charges."

The court then said:

"It was my understanding from

the conversation I heard that

the defendant would not contend

that there was no factual basis

for the plea and that it was

being entered to avoid liti-

gation. It was specifically

agreed that the guilty plea was

not to be similar to the type

approved by the Supreme Court

in North Carolina v. Alford; It

was my understanding there was

to be no contest as to the ba-

sic fact that an assault was

committed by the defendant.”

"As I understand it, when the

factual statement was to be

made by the State there would

be no contest as to the facts.

-5a-

The court

Up to the time of the very

end of your statement, when

you eaid Turco himeelf would

testify, your reettation of

What the witnesses would say

could be covered by a finding

that there was a factual oa-

sis. But if Mr. Turco'e poe

sition is he does not feel in

any way that he has ever done

anything wrong and wishes to

assert that position on the

record, apparently the State

is not prepared to follow

through with its recommenda~

tion on that basis."

MRS. O'CONNER: Correct, We

would ask the entire portion

starting ‘If Mr. Turco were

called to the stand... .'

to be deleted at this point

and the plea continue with

the completion of the last

witness, Mr. Clark.

MR. KUNSTLER: I would agree

to that.

then stated:

"So that there be no mis-

understanding of the state of

the record in this case, at

the outset of the State's re-

ecital of its evidence there

was a stipulation that this

would be the State's evidence

as produced on direct examin-

ation. There has been no

-55a-

atipulation or agreement by

the State as to what the evi-e

dence offered by the defendant

might be, so that there has

been no stipulation on the

part of the State to any evi-

dence which would support the

outline as given by Mr.

Kunstler. Since the State'a

outline of its evidence

Clearly supports the plea of

mullty, the crime of assault,

and since the defendant elects

to present no evidence to

controvert this charge, the

Court finds that there is in

fact a factual basis for the

plea of guilty to the crime of

assault."

Before pronouncing sentence, the court

concluded as follows:

"As has been pointed out in

the discussion here today, the

defendant, Arthur Turco, is

not a member of the Bar of the

State of Maryland. However,

I believe that there have been

some suggestions that he has

offered his services as an

attorney to some persons in

this Jurisdiction who are

charged with criminal offgnses.,

The possibility of Mr. Tured

participating in the defense

of any criminal case in this

State would depend upon his

being presented to the Court

by local counsel with a re-

-56a-

quest that he be permitted to

participate in that one case

only on a case-to-case basis.

Speaking for myself only, and

not attempting to speak for

any other court in this juris-

diction, I would make it clear

that if such an occasion would

arise in the future, Mr. Turco

would not be permitted by this

Court to act as counsel in any

criminal case at trial before

this Court."

On March 8, 1972 respondent appear-

ed in the criminal court of the City of

New York, New York County, and offered

to plead guiity to illegal possession of

@a dangerous weapon, a gun, in satisfac-

tion of all charges against him, in-

cluding bail jumping and fleeing the

Jurisdiction. His attorney, Mr.

Lefcourt, stated that respondent had no

knowledge of the presence of the hand-

guns or marijuana in his apartment where

he was arrested and that the hypodermic

needles were for respondent's use as a

diabetic. He did not attempt to explain

why 75 hypodermic needles were needed

for such purpose. He asserted that his

plea was under North Carolina v. Alford,

(400 U.S. 25, supra) and that respon-

dent still claims that he was innocent.

The District Attorney replied that

the facts "clearly demonstrate the guilt of

the defendant," and he proceeded to recite them,

as reviewed above; but he concluded by stating

that he was willing to accept the one

-57a-

plea in full] satisfaction of all char-

ges against respondent. Respondent's

attorney stipulated that the People's

witnesses would testify to the facts

recited by the District Attorney.

The court then questioned respon-

dent and ascertained that his plea was

made freely and knowingly; and he added,

"After having entered this plea, do you

understand I will not permit you to

withdraw it under Alford v. North

Carolina, on the basis of your assertion

of innocence, later on?" and respondent

answered, "I understand, your Honor."

Respondent appealed from the judg-

ment convicting him in Maryland. The

appeal was argued on March 2, 1973 and

on June 13, 1973 the court of Special

Appeals of Maryland affirmed the judg-

ment.

Respondent appealed from the judg-

ment convicting him in New York County

of illegal possession of a dangerous

weapon, and on December 19, 1972 the

Appellate term of the First Department

unanimously affirmed the judgment.

With respect to the New York County

conviction respondent testified on the

mitigation hearing that he had moved in-

to the Manhattan apartment only a few

days before his arrest; that he brought

with him two guns, the shotgun and the

rifle, which he had formerly used for

hunting; and that he registered them

when he moved to Manhattan. he stated

that the revolvers and ammunition there-

-58a-

for were in the room of his co-defen-

dant, Weiser, in the apartment and their

presence was unknown to respondent. He

admitted that he had in the apartment

up to 200 shells for his shotgun and up

to 150 shells for his rifle. He testi-

fied that when he told the officers that

the guns were his he was referring only

to the shotgun and rifle and not to the

unlicensed revolvers, despite the offi-

cer's testimony that respondent's state-

ment was in response to his question

about the small guns. Respondent offer-

ed no explanation of how the shotgun

and the rifle, purportedly used only on

rare occasions for hunting, wer both in

the living room with live ammunition in

them and openly at hand.

Respondent further testified that

the reason he falsified the identifi-

cation card in Canada and carried it and

used the name of Leon Wright was to

avoid arrest and extradition to the

United States.

Respondent reiterated on cross-

examination that he pled guilty in

Maryland and in New York County with

full knowledge of the charges, facts and

law and did so voluntarily and on ad-

vice of his counsel.

The essence of respondent's testi-

mony on the mitigation hearing was (1)

that because of his active defense of

minority persons in Maryland, especially

blacks, he could not get a fair trial

there, and that is principally why he

pled guilty rather than stand trial.

-59a-

His wife's ill health and his lack of

funds for counsel fees for his defense

were also stated as important consider-

ations; (2) that his wife's ill health

and the expense of defending himself

against the New York County charges were

also why he pled guilty there; (3) that

he has been devoted to the defense of

minority groups and underprivileges per-

sons, largely without fee, and has per-

formed a public service for which he

should be commended instead of being

charged with unprofessional conduct; and

(4) that since his convictions he has

conducted himself in an exemplary manner,

continuing to defend the poor and de-

fenseless and unpopular causes, and

should be permitted to continue to do so.

The petition herein charges respon-

dent with misconduct by reason of the

two convictions above described. We have

determined that such misconduct requires

that he be disciplined. In an effort to

mitigate the discipline to be adjudged,

respondent presented his version of the

facts underlying and surrounding the

convictions. In considering such testi-

mony we necessarily have reviewed the

countervailing proof, to wit, the facts

which the State of Maryland and the

People of New York stated that they

would prove upon a trial to establish

respondent's guilt, many of which facts

were admitted by respondent or not de-

nied. Those alleged facts and respon-

dent's answers thereto are necessarily

weighed by us in considering respondent's

character and his respect for the law

and his responsibility to the Bar as a

lawyer.

-60a--

The Maryland court accepted the

recommended plea of common assault; but

it clearly did not view the crime as a

mere street corner fist-fight, for it

imposed a five-year sentence, suspended

during respondent's good behavior. Af-

ter respondent's arraignment in New York

County on the various charges there, the

court recognized respondent's position

as a member of the Bar and released him

on bail on nis own recognizance, thus

relying on his integrity as an attorney-

at-law to abide by the rules governing

persons released on bail and to be

available at all times for the prosecu-

tion of the case. Under such circum-

stances his admitted jumping bail, which

in itself constituted the commission of

a felony (Penal Law $205.40), shows a

Significant lack of good character. Al-

though this fact is not a basis upon

which the petition rests, in his testi-

mony in mitigation respondent has ad-

verted to his incognito stay in Canada,

and such testimony must be considered in

lignt of all the surrounding facts.

The evidence in behalf of respon-

dent shows that he engaged in represent-

ing people who desperately needed rep-

resentation and who often had difficulty

finding able counsel, and that he, as an

attorney, had a proper concern for un-

derprivileged persons. The testimony of

the many witnesses who testified to re-

spondent's good character must, however,

be recognized as based upon his conduct

since he came to Rochester in 1971,

during which time he was subject to the

Maryland and New York County charges or

-6la-

the pressure of the Bar Association's

investigation for his prior misconduct.

Were the acnitted facts in this pro-

ceeding to appear on the record of an

applicant for admission to the Bar,

without doubt the application would be

summarily denied.

In his argument in mitigation of

respondent's conduct and consequent

punishment, his counsel likens respon-

‘dent's actions to those of an attorney

who has been charged with tax fraud or

tax evasion. We cannot accept such

comparison. Defendant has been charged

with crimes involving gross moral tur-

pitude, including violence and a dis-

play of utter lack of moral responsibil-

ity. Even in his testimony at the miti-

gation hearing he evinced no showing of

remorse or recognition of wrongdoing.

Respondent's conduct in 1969 and 1970,

as recited above, reveals that he had

little respect for legal processes in-

sofar as they applied to him and his

ambitions. He left the arena of the

lawyer in the proper defense of clients

charged with crime and joined his cli-

ents in criminal activity and when

caught in the web of the law, he refused

to abide by lawful mandates and under-

took illegal means to evade the law and

conceal himseif. He flouted the law.

His actions were completely un-lawyer-

like, unprincipled and far below any

minimum standard of proper professional

conduct. Such conduct in a practicing

lawyer cannot be tolerated. For his ad-

mitted actions herein we have no choice

-62a—

but to order that he be disbarred and

that his name be stricken from the roll

of attorneys of the State of New York.

An order should be entered accor-

dingly.

Marsh, P.J., Moule, Simons, Mahoney

and Del Vecchio, J.J., concur.

-63a-

STATE OF NEW YORK

COURT OF APPEALS

At a session of the

Court, held at Court of

Appeals Hall in the City

of Albany on the nine-

teenth day of February

A.D. 1975.

PRESENT, Hon. Charles D. Breltel,

Chief Judge, presiding.

a ee ee - —-_- - —_——-_ <-

{ No. 154

In the Matter of Arthur F. Turco, Jr.,

Appellant,

VS.

Monroe County Bar Association,

Respondent.

Court of Appeals and for a stay in the

above cause having been heretofore made

upon the part of the appeliant herein and

papers having been duly submitted there-

on and due deliberation thereupon had:

ORDERED, that the said motion be and

the same hereby is denied, and it is

ORDERED, on the Court's own motion,

that the appeal taken as of right be dis-

missed, without costs, upon the ground

that no substantial constitutional ques-

tion is directly involved.

cae ee | a ee ee ee

Clerk |

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