Petition — Graseck v. Middlemiss

Supreme Court, U.

IN THE FILED

6

SUPREME COURT OF THE UNITED S Ee ad 1976

December Term, 1978 MICHAEL RODAK, JR, CLERK |

“> 78-859

ARTHUR V. GRASECK, JR.,

Plaintiff-Petitioner,

-_

~against-

and as Adminis-

istrict Court of

D U. GREEN, JR.,

e of the District

ERL, Indivi

trative Judg

Suffolk Count

Cou Of Suffolk County,

Defendants,

JOHN F. MIDDLI.MISS, JR., Individually and

as Attorney-1i1- harge, Legal Aid S .. ety

of Suffolk County, New York,

Derendant-Respondent,

ually and as Attorney-

in-Charge of the strict Court Bureau of the

Crimi =Sion of Legal Aid Society of

folk County, New York,

Defendant,

LEGAL AID SOCIETY of Suffolk County, New York,

be fendant-Respondent. ies.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPFALS

POR Tris SELOND CIRCUIT __

JAMES <. Sch. LTZ

318 Terry “cad

Hauppauge, ~. Y. 11787

ARTHUR V. «.ASECK, JR.

of Counsei

Attorneys for Petitioner

CONTENTS

: OPINIONS BELOW. e«eee#e#e eee ee # ®@ 3

JURISDICTION, oo ee @eeee@' 68 @ 6:6 ® 3

QUESTIONS PRESENTED. . . «© «© «© «+ 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED, . . 7 e°‘e e . 6

STATEMENT OF THE CASE. . ..-..--. ll

REASONS FOR GRANTING THE WRIT. .. 54

A. Erroneous State Action

Determination On An Issue

Of Pirst Impression,

Sanctioning Summary In-

position Of A Penalty

For Exercise of Constitu-

tional Rights. . . « « « « « « 54

B. Conflict Among The Circuits

With Respect To State Action

Determinations In Cases Not

Directly Involving Allega-

tions Of Racial Discrimina-

Se ee ee ee ae oe a a ee”

C. Conflict With Applicable

Decisions Of This Court. ... 69

CONCLUS ION 7. ° a ° cm * > . * os * + . 8 0

3 ADDENDUM, * - + ° aa * = om . * ei - 54

Cases Page

Braden v. University of Pitts~-

burgh, 552 F. 2d 948

(3d Cir. 1977). « « « © © © 096, 60

Burton v. Wilmington Pkg. Auth.-.

365 U.S. 715 (1961). . « « « 54

Coleman v. Klein, 73 Civ. 1857,

E.D.N.Y. (JBW) (decision

dictated into the record). . 65

Downs v. Sawtelle, 574 F. 2d 1

(lst Cir. Mar. 30, 1978) .57, 63, 64

Gideon v. Wainright, 372 U.S.

33S (1963) 6". (6 86s te Dé fawcee 75

Holodnak v. AVCO Corp., Avco-

Lycoming Div., Stratford,

514 F. 2d 285 (2d Cir. 1975),

cert. denied, 423 U.S. 892

(1975). so. 2e ee ere @' 6 #8 « 5T6 60

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974). . . « » 54, 57

Jackson v. Statler Foundation,

496 FP. 2d 623 (2d Cir. 1974),

cert. denied, 420 U.S. 927

(1975) Pet. App. A

_ Lefcourt v. Legal Aid Society, 69

445 F. 2d 1150 (2d Cir.

1971). . * ’ * ° ° e * ° * *

enh in

TABLE OF AUTHORITIES

Regents of University of Page

California v. Bakke, 98

Si iChis APSRiLISTO) eee 63

Schlein v. Milford Hospital,

Inc., 561 F. 2d 427 (2d

Cis < 1977). eee ee%8¢¢ 56

Taylor v. Consolidated Edison

Co. of New York, Inc., 552

F. 2d 39, 42 (2d Cir. 1977),

cert. denied, 434 U.S. 845

(1977). . wos 7” . * . 7 ~ 2 * 67

Constitutional And Statutory Provisions

Sixth, First and Fourteenth yA Beet

Amendments, United States

Conetituatione’ 3s se « eee 6, 7

Title 42 United States Code,

Section 1983. re ff 8@ &© &© @ @ 8 b ei 9

Title 28 United States Code,

SOGtLon 206s. (3) 6 wide «oe 3, 9

Title 28 United States Code,

Secwien+-1254- (1). S:6 dere e 4

County Law of New York State,

Section 722. e' ea; 'é @- 8 6) 6 'e 9 a 2 ll

~iii-

TABLE OF AUTHORITIES

Other Authorities

Report by Jonathan D. Casper,

Department of Political Science,

Stanford University, "Criminal

Courts: The Defendant's Perspec-

tive (1976). eeeesgegeeee#e#*e Brief 71-72

_ Miscellaneous References

Letter dated February 27, 1970,

from Terry F. Lenzer, Esq.,

Associate Director for the

Office of Legal Services of

the Office of Economic Oppor- -

tunity, to the Director of

the Economic Opportunity

Council of Suffolk, Inc. . .. . Addendum 1l- 8;

Brief 20,51

Newsday articles dated November

7 and November 9, 1972 . .. . « Addendum 12-25;

Brief 24

Resignation Letter of E. Thomas

Boyle, former First Assistant

of the Criminal Division of

Suffolk Legal Aid ee) eeee Addendum 26-29;

Brief 27,50

Letter from Administrative Judge

of the District Court Angelo

Mauceri to John F. Middlemiss,

Jr., Attorney-in-Charge of

Suffolk County Legal Aid . .. . Addendum 34-35;

Brief 35-36

-iv-

Letter from Administrative Judge

of the District Court Angelo

Mauceri to Howard Finkelstein,

President of Suffolk County

Legal Aid. . . . « « « « « « Addendum 30-33

Report of the Grand Jury ...County

of Suffolk ... Concerning

“Misconduct, Nonfeasance or

Neglect in Public Office by a

Public Servant as the Basis

for a Recommendation of Removal

or Disciplinary Action. . .. . Brief 26

Study of 18 B Indigent Defense Panel. Brief 77-79

-V~

IN THE

SUPREME COURT OF THE UNITED STATES

December Term, 1978

No.

ARTHUR V. GRASECK, JR.,

Plaintiff-Petitioner,

- against -

ANGELO MAUCERI, Individually and as Ad-

ministrative Judge of the District Court

of Suffolk County; EDWARD U. GREEN, JR.,

Individually and as a Judge of the District

Court of Suffolk County,

Defendants,

JOHN F. MIDDLEMISS, JR., Individually and

as Attorney-in-Charge, Legal Aid Society

of Suffolk County, New York,

Defendant-Respondent,

RALPH COSTELLO, Individually and as Attorney-

in-Charge of the District Court Bureau of the

Criminal Division of the Legal Aid Society of

Suffolk County, New York,

Defendant,

LEGAL AID SOCIETY of Suffolk County, New York,

Defendant-Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To The Honorable Chief Justice and

Associate Justices of the Supreme Court

of the United States:

The petitioner, Arthur V. Graseck,

Jxr., prays that a Writ of Certiorari

issue to review a judgment of the United

States Court of Appeals for the Second

Circuit filed and entered August 7, 1978

(unreported) (Pet. App. A, PPp- ES

firming a judgment of the United States

District Court for the Eastern District

of New York (The Honorable Jacob Mishler,

Ch. J.) filed October 31, 1977 (unreport-

ed) (Pet. App. B, pp. 1-55) dismissing

petitioner's complaint, alleging peti-

tioner's improper firing by the respon-

dents as an attorney for the Legal Aid

Society of Suffolk County, against John

L/

in a companion volume and cited as “Pet.

App."

The Appendices are separately presented

F. Middlemiss, aus and the Legal Aid

Society of Suffolk County, New York.

OPINIONS BELOW

The opinion of the Court of Appeals

appears in Pet. App. A., pp. 1-38 (un-

reported).

The opinion of the United States

District Court for the Eastern District

of New York appears in Pet. App. B.,

pp. 1-55 (unreported). |

JURISDICTION

The United States Court of Appeals

for the Second Circuit, on August 7,

1970, affirmed that portion of a dismis-

sal of an action, brought under Title

42 U. S. C. 1983 and Title 28 U. S. Cc.

1343 (3), by the United States District

Court for the Eastern District of New

30

ing that appellees-respondents had not

acted under color of state law and that

therefore the Court lacked subject

matter jurisdiction. The judgment of

the Court of Appeals was entered on

August 7, 1978. (Pet. App. C., pp. 1(a)-1(b))

The jurisdiction of this Court is

sought to be invoked under Title 28

U. S. C. 1254 (1). |

QUESTIONS PRESENTED

1. Whether the United States Court

of Appeals correctly determined that res~

pondents Middlemiss and Legal Aid Society

did not engage in State action by dis-

missing petitioner even though the Court:

(a) failed to address the

symbiotic nature of the relationship

between Legal Aid and Suffolk County;

(b) did not consider the sig-

-4-

nificance of Legal Aid's status as vir-

tually the sole source of legal represen-

tation for indigent criminal defendants

in Suffolk County, a role it occupied as

a result of being exclusively funded by

the County;

(c) called for a higher degree

of state involvement in this suit, than

it otherwise would have required, on the

presumption that this case did sats in-

volve allegations of racial discrimina-

tion, despite recent: judicial criticism

of preferential treatment based on an

individual's status as a member of a

racial minority; and

(d) in any event, ignored the

racial implications of this suit.

2. Whether the failure of the Court

' Of Appeals to find state action has re-

win

sulted in a violation of Sixth Amendment

yights of indigent defendants in that it

sanctioned the imposition of a penalty on

petitioner for asserting remedies on be-

half of poor criminal defendants which

retained attorneys could have asserted

for wealthy clients with impunity.

3. Whether the failure of the Court

of Appeals to find state action infringes

on the First Amendment rights of petition-

er by sanctioning the imposition of a

penalty for zealous representation of in-

digent clients, pursuant to the require-

ments of the Sixth Amendment and the Code

of Professional Responsibility.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

. Constitution:

2 —s ot cali —s a

"Congress shall make no law ...

abriding the freedom of speech ...."

The Sixth Amendment to the United States

Constitution:

“In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an im-

partial jury of the State and dis-

trict wherein the crime shall have

been committed, which district shall

have been previously ascertained by

law, and to be informed of the

nature and cause of the accusation;

to be confronted with the witnesses

against him; to have compulsory pro-

cess for obtaining witnesses in his

favor, and to have the Assistance

of Counsel for his defence."

The Fourteenth Amendment to the United

=

|

States Constitution: | action at law, suit in equity, or

“ ee mor shall any State deprive | other proper proceeding for redress."

any person of life, liberty, or , Title 28 United States Code, Section 1343

property, without due process of (3):

law; nor deny to any person within “The district courts shall have ori-

its jurisdiction the equal protec- ginal jurisdiction of any civil ac-

tion of the laws." tion authorized by law to be com-

Title 42 United States Code, Section 1983: menced by any person: ...(3) To

“Every person who, under color’ of redress the deprivation, under color

any statute, ordinance, regulation, | | of any state law, statute, ordi-

custom, or usage, of any State or : nance, regulation, custom or usage,

Territory, subjects, or causes to | of any right, privilege or immunity

be subjected, any citizen of the | secured by the Constitution of the

United States or other person with- United States or by any Act of Con-

in the jurisdiction thereof to the gress providing for equal rights of

deprivation of any rights, privi- | citizens or of all persons within

leges, or immunities secured by the the jurisdiction of the United States.."

Constitution and laws, shall be New York County Law, Art. 18-B, Section

liable to the party injured in an i 722 (McKinney Supp. 1977-78):

-8- =~

“The governing body of each county ...

shall place in operation throughout

the county ... a plan for providing

counsel to persons charged with a

crime ... who are financially unable ;

to obtain counsel. Each plan shall

also provide for investigative, ex-

pert and other services necessary

for an adequate defense. _ The plan

shall conform to one of the follow-

ing:

1. Representation by a public

defender ...

2. In criminal proceedings, rep-

resentation by counsel furnished by

a private legal aid bureau or

society designated by the county ...,

erganized and operating to give legal

assistance and representation to per-

-10—

sons charged with a crime within

the ... county who are financially

unable to obtain counsel ...

3. Representation by counsel

furnished pursuant to a plan of a

bar association ...

4. Representation according to

a plan containing a combination of

any of the foregoing ..." ~

STATEMENT OF THE CASE

Petitioner challenges his sudden

summary dismissal from the Legal Aid

Society of Suffolk County, without no-

tice, as a submission to judicial pres-

sure to have him removed. Review is

sought of the judgment of the Court of

Appeals which sanctioned that dismissal,

rejecting contentions that it resulted

in infringement of petitioner's and his

ing Ba,

clients’ constitutionally protected

rights aden’ the First and Sixth Amend-

ments, respectively, and was violative

of the due process clause of the Four-

teenth Amendment.

This case concerns the policy ques-

tion of whether.respondent Society, and

other such organizations, play an appro-

priate role in their dealings with ‘indi-

gent clients. The ctecenntekese: stakount-

ing petitioner's discharge, which was an

immediate response to judicial interven-

tion, raise a question about a gross

disparity between legal services provided

the poor and the wealthy. It appears that

an attorney is expected to be zealous on

behalf of retained clients, but a mere

agent of the judiciary in his dealings

with powerless defendants, who do not pro-

~12<

vide his compensation.

Petitioner's dismissal was acconm-

plished in response to confrontations

netwellé him and Judges Angelo Mauceri

and Edward U. Green, Jr. of the Dis-~

trict Court of Suffolk County. These

encounters had resulted in petitioner's

exclusion from Judge Green's chambers

and courtroom and from the prisoners‘

detention area of the District Court, as

detailed more fully below.

Neither prior to nor in the after-

math of his summary dismissal was peti-

tioner accorded due process safeguards

which would be available to private

counsel who incurred the wrath of Judges

and might fact Bar Association grievance

committee proceedings. It is clear that

such a professional body would reach a

~

6,

determination only after the criticized

conduct was thoroughly and fairly evalu-

ated. Indeed, in the latter situation,

the private counsel, even if he were

found to have engaged in improper conduct,

most probably would be penalized ina

manner less severe than the summary dis-

charge imposed on petitioner, as a result

of judicial intervention in the affairs

of respondent Legal Aid. The resulting

difference in pressures experienced by

assigned and retained counsel has an in-

evitable effect on the quality of repre-

sentation afforded the poor: whereas a

private lawyer must see himself as primar-

ily a representative of his client and an

advocate of the latter's interests, a

legal aid lawyer is virtually compelled

to perceive his role as that of a repre-

wihiinn

sentative of the Court, who must focus on

judicial concerns, even though the client

may be adversely affected.

This suit was initially heard by Judge

Jack B. Weinstein of the United States

District Court for the Eastern District

of New York. A full trial was conducted

during the week of November 22, 1976.

After hearing all of the evidence pertain-

ing to state involvement in the operation

of the Legal Aid respondents’ motion to

Gismiss for lack of CE, Se

2/

In reaching this decision, J. Weinstein

declared:

“There's ample state action. All of

the funds for this Legal Aid Society's

activities come from the State. There's

ample evidence that the Administrative

Judge worked very closely with Legal Aid

in resolving their problems, made appli-

cations for funds.

I don't see how there really could

be any serious doubt on the facts that

this is constitutionally state action.

(continued next page)

niin

ing state action from the close working

relationship between the District Court

of Suffolk County and the Society.”

(Pet. App. A, P- 26)

After denying respondents’ motion,

Judge Weinstein recused himself on

December 27, 1976 at their request.

Thereafter, the case was reassigned to

Chief Judge Jacob Mishler who, on Feb-

ruary 14, 1977, denied petitioner's

request that the case be decided on the

record compiled before Judge Weinstein.

2/ cont’d

It's perfectly clear from the evidence in

the case as well as from what is apparent

on the basis of judicial notice that the

District Court of Suffolk County could

not have operated at all without the

Legal Aid Society, and for purposes of

this issue it seems to me that this must

be considered state action.” Trial Tran-

script at 269 (Weinstein trial) (November

26, 1976).

-16-

On May 31 and June 2, 1977, the matter

was retried before Chief Judge Mishler.

Petitioner is a graduate of the Yale

Law ‘School (1963) who completed an L.L.M.

degree in labor law at New York University

Law School (1968) and has been admitted:

to practice in New York since 1964. He

has been the recipient of such academic

honors as membership in Phi Beta Kappa

, and selection as a Finalist in the Cardozo

Moot Court Brief competition at Yale Law

School.

He came to work for respondent Legal

Aid, having had diverse experience as an

associate with a private Manhattan law

firm and a member of the staffs of public

and quasi-public bodies. He was employed

by the Legal Aid Society of Suffolk County

from July, 1971 until October 13, 1972,

-17-

being assigned for most of that period at

the Society's District Court Bureau in

3/

Hauppauge, Long Island.

It is undisputed that incompetence

never served as a basis for petitioner's

4/

dismissal. Indeed, the testimony of his

former Legal Aid supervisor, E. Thomas

Boyle, Esq., was to the effect that

Graseck was an exceptionally dedicated

and talented attorney, whom others relied

3/

on to handle particularly difficult cases.

2/

See petitioner's resume at Addendum, pp. 9-

ll -- pp. 284-85 of the ‘Joint Appendix' pre-

pared for the Court of Appeals. Hereinafter,

figures preceded by A will refer to pages in

the Joint Appendix..

4/

Al71.

3/

The following exchange took place at the

second trial between counsel and Boyle

(A234):

"Q. You indicated that you assigned cer-

(continued next page)

18

The other principal actors in this

suit are:

John FP, Middlemiss, Jr. -- He has been at

all times relevant, the Attorney-in-

Charge of Suffolk Legal Aid. As head of

Suffolk Legal Aid, he hired Graseck and,

on October 13, 1972 fired him. The

Society had received federal funds for

5/ cont'd.

tain cases to Mr. Graseck to follow

through, from start to finish; did those

cases involve any particular subject mat-

ter?

A. Very often they would involve

charges, misdemeanor assault cases, vio-

lations of harassment where the defen-

dant's position was that the police had

actually been the aggriever, and that

these were simply charges of resisting

arrest, which is another type of charge.

These were simply trumped up charges to

cover up for beatings that the defendant

received at the hands of the police, and

they are very, very difficult cases to

handle in the District Court. These are

one of the types that I would refer to

him to get involved in."

-19-

some of i.s activities, which support

was withdrawn during Middlemiss’ tenure

as Attorney-in-Charge, because of dis-

satisfaction with Legal Aid's view of its

role and the conclusion that Socieky |

attorneys created bitterness in the

client community by failing to adequate~

ly serve the poor. The report of the

Office of Economic Opportunity appearing

in the Addendum, pp. 1-8, is discussed

more fully below.

Suffolk Legal Aid -- The Legal Aid Society

of Suffolk County is a membership corpora-

tion under contract with the County of

Suffolk to represent indigent criminal

defendants in accordance with the County‘s

obligation pursuant to Section 722 of the

County Law of New York State. Since its

inception in 1965, the Criminal Division

-20-

has been funded exclusively by the legis-

lature of Suffolk County (Pet. App. A,

p.22). The Society developed a close

working relationship with the Suffolk

County District Court, whereby Legal Aid

was the beneficiary of numerous favors

provided by the Administrative pry of

the District Court, who expected coopera-

tion from respondent Middlemiss-and his

subordinates. One of the legal ideataaigs

tions raised by petitioner, and treated

more fully infra, is the symbiotic rela-

tionship which existed between respondent

Society and the County and its bearing on

the state action issue.

Angelo Maucerj -- He is and was at all

relevant times the duly appointed Admin-

istrative Judge of the District Court of

' Suffolk County, who was resentful of such

a

conduct by Legal Aid lawyers as moving

to dismiss dases for failure to prosecute.

Addendum, p. 31. It is now undisputed

that with respect to the “pen incident”

(discussed more fully below), Judge

Mauceri issued an order barring petitioner

from the courthouse detention cells and

then communicated with defendant Middlemiss

by telephone and in writing regarding

the incident. Evidence has been present-

ed showing that in that telephone conver-

sation Judge hansits said to defendant

Middlemiss, “You have got to get this

Sal [craseck] out of my court.” Pet. App.

A, pp. 14,36. |

The next day Arthur Graseck was dis-

missed. Mauceri initially denied any

recollection of any communications with

' Middlemiss about Graseck on the day before

=22-

the latter's sudden discharge without

g/

notice.

&/

The following exchange between counsel

and Mauceri occurred at the first trial

(A139-40):

"Q. .«.. have you ever communicated with

Middl ss before about a al Aid

lawyer [other than Graseck }?

A. No. eee

Q. Judge Mauceri, you recall. in your

pre-trial deposition you told us you had

no communication with Mr. Middlemiss con-

cerning the October 12 [pen Jincident?

A. Yes, I recall that ...

Q. How was ... [your memory] refreshed?

A. With my own counsel.

Q. I don't want to intrude on the pri-

vacy of the information.

A. As long as I don't waive the privi-

lege. He showed me the letter and that's

how I remembered it.

Q. In addition to your letter do you

remember now making a telephone call to

Mr. Middlemiss that day?

(continued next page)

-23-

In addition on November 7 and 9, 1972,

articles about plaintiff's dismissal

appeared in Newsday, a Long Island news-

paper, ‘attributing to Judge Mauceri un-

flattering remarks about Graseck. (Addendum,

pp.12-25)

Edward U. Green, “Jr, -- He is and was at

all relevant times a duly elected Judge

of the District Court of Suffolk County.

It is undisputed that on or about October

10, 1972, Judge Green learned that petition-

er had filed an affirmation in support of a

motion relating to the case of People v.

McElhiney which affirmation was in part

]

!

critical of Judge Green's conduct of the

6/ cont'd.

A. Yes, just about the same time.

. Q. You thought it was necessary to notify

Mr. Middlemiss both orally and in writing?

A. Yes.

-24-

;

-8/

case at an earlier stage. It is also

uncontested that Judge Green became en-

raged over what had been set forth in

the affirmation and summoned Graseck and

his supervisor, at that time, Ralph

Costello, into his chambers where he regis-

tered his displeasure.

It is petitioner's contention, as

detailed more fully below, that, at this

meeting, Judge Green declared that he

would no longer be permitted in the

Jaage*‘s chambers or courtroom. Pet. App.,A,

p.- 11. Judge Grean also reported the

8/

incident to Judge Mauceri. Three days

'

later, petitioner was dismissed. Judge

Y/

A 156-59.

A. 155.

=25—

Green has been the subject of a Special

Grand Jury Report, of which the Court is

requested to take judicial notice, as

bearing on conduct similar to that which

2/

resulted in petitioner's discharge.

E, Thomas (Tom) Boyle -- He was Attorney~

in-Charge of the -District Court Bureau

from about October, 1971 to about August,

1972 and functioned as Graseck's immediate

aupervisor. A graduate of the sekinastind ine

of Virginia Law School, Boyle was employed

by respondent Legal Aid from the Fall of

Repoét of the Grand Jury .../ County of

Suffolk ... concerning:

"Misconduct, non-feasance or neglect

in public office by a public servant as

the basis for a recommendation of removal

or disciplinary action..." Plaintiff's

allegedly critical remakrs concerning

Judge Green in the “McElhiney Affirmation"

pale in comparison with the alleged con-

' @uct of Judge Green which was criticized

by the Grand Jury.

-26-

1967 until December 1, 1972, advancing

from the position of staff attorney to

that of First Assistant, with responsi-

bility for the entire Criminal Division.

After learning of petitioner's dis-

missal, Boyle unsuccessfully sought to

have Middlemiss reconsider his decision.

Shortly thereafter, in October, 1972,

Boyle tendered his resignation from Suf-

folk Legal Aid in protest over the basis

on which petitioner was fired. His

resignation letter, appearing in Addendun,

Pp. 26-29,28 provided, in pertinent part:

“It is apparent from my investigation

{

that Mr. Graseck was discharged for incur-

' ving “judicial disfavor".

The record demonstrates that peti-

tioner was fired for undertaking certain

-actions pursuant to his obligations under

-27-

the Code of Professional Responsibility

and the Sixth Amendment. Moreover, the

chronology of events renders inescapable

the conclusion that the dismissal decision

was actually motivated by pressure from

state judges--and was a result of respon~

dent Middlemiss' overreaction to communi-

cations from the judiciary.

Although it is undisputed that

petitioner's dismissal was not wena on

any single incident or reason, the close-~-

ness in time of the so-called ‘pen inci-

dent*® and the filing of the McElhiney

affirmation with the dismissal make it

clear that they were the triggering events.

While respondents have claimed that other

incidents, remote in time, involving en-

counters with Judges Green and Mauceri

' and others, played a role in the decision

-28-

==

to fire petitioner, he was never warned

that these o¢currences might place his

10/

job in jeopardy.

dents were belatedly resurrected at trial

Instead, these inci-

as a justification for petitioner's sud-

den dismissal, one day after Judge Mauceri

wrote to and called respondent Middlemiss

about the "pen incident".

A close examination of the two trig-

gering incidents, which resulted be

Graseck's discharge, reveals that the

leadership of Legal Aid is more responsive

to judicial pressure than to the needs of

its clientele. It appears that the

Society's County funding affects its

' view of what its role should be.

McElhiney Affirmation -- On or about

10/

A 88-89.

-29-

: eee”

September 27, 1972, petitioner moved to

dismiss for failure to prosecute the case

of People v. McElhiney, a misdemeanor case

pending in the District Court, with

respect to which Judge Green played a

significant role. In the affirmation it

was pointed out that the case had been

on the calendar on eight occasions,

alleged that the prosecution's principal

witness had repudicated his prior state-

ment as coerced and false and that Judge

Green had undertaken to speak for the

Office of the District Attorney in of-

fering an explanation for the prosecution's

/

repeated lack of readiness for trial.

When the Judge learned of the affir-

mation, on October 10, 1972, he, in his

_

wy

See McElhiney Affirmation, A 273-77.

-30-

own words, “...was in a rage.” Judge

Green summoned petitioner and his imme-

diate supervisor to his PAIR ey

record supports petitioner's contention

that the import of Judge Green's un-

recorded remarks was that petitioner was

thenceforth banned from the Judge's chanm-

bers and bidevecene

Although respondent Society argues

that petitioner exercised poor judgment

in filing this affirmation, that con-

tention is rebutted by the eventual deci-

sion to grant the motion in support of

sihtoh phe McElhiney affirmation was

filed, thereby relieving a Legal Aid

client from the burden of a criminal

A 158-59.

13/

A 58.

-3l-

charge which had been pending against him

14/

for a substantial period.

Moreover, the

testimony of Middlemiss, at the first

trial, reveals that he readily accepted

Judge Green's point of view, admittedly

formulated in a moment of "rage", without

even being fully aware of the contents of

15/

the affirmation.

#en_ingidens ~~ It is undi agetet. that oe

October 12, 1972, following a trial is

which petitioner appeared as defense coun-

sel, he accompanied a defendant to the

14/

None of the substantive allegations

in the affirmation was contro-

verted by the Assistant District Attorney

in his ‘answering affidavit. A 308-09.

- 15/

The following exchange between counsel

and Middlemiss, at the first trial, indi-

cates that respondent Society viewed itself

as an adjunct of the Court (Al106-108) :

"Q. Mr. Middlemiss, precisely what is so

dreadful about that affirmation?

= 32-

detention area and began to discuss with

him the summation scheduled for later

that day; that conversation was inter-

rupted when the Suffolk County Police

Department asked all non-detainees to

leave the area so that they could perform

an administrative’ function, that Graseck

then provided defendant with paper and a

‘

ball point’ pen so that he could make

notes for possible use during the summa-

15/ cont'd.

A. I think it's wrong to call a judge a

constant agent of the District Attorney's

office.

Q. Dos that affirmation call Judge Green

constant agent of the District ...

Attorney‘ sj office?

A, I just viewed this action on his part

as just one more thing that he had done ...

Q. Let's stick to the ... [McElhiney]af-

. firmation ... Were you really concerned at

the language that he used in that affirma-

tion? (continued next page)

a33@

tion, that the police subsequently discov-

ered the pen in the defendant's posses-

sion, that Judge Mauceri was notified

and. promptly issued an order barring

petitioner indefinitely from the holding

pen; and that Judge Mauceri telephoned

Middlemiss to inform him of the step he

had taken and followed up the call with a

formal letter. Pet. App. A, p. 14. ©

What Judge Mauceri said in his tele-

15/cont 'd.

A. Yes.

Q. You really think it was a terrible

thing to do?

A. Yes.

Q. You think it's incorrect for an at-

torney making a motion like that?

A. Yes, in that vein; yes.

Q. Is it possible, Mr. Middlemiss, what

you were upset about was not the language

but Judge Green's reaction to that lan-

guage? (continued next page)

-34-

phone call to Middlemiss on October 12:

is in dispute, but Tom Boyle testified .

that Middlemiss quoted Mauceri as having.

said, "You have got to get this guy[Graseck]

out of my court.” (Pet. App. A, pp.14, 36).

It is noteworthy that the Judge, in his

follow-up letter of October 12, clearly

indicated that he anticipated that peti-

tioner would be removed by declaring that

he hoped a pen incident would not be

15/ cont'd.

A. No, it is not.

Q. This time you were upset about the

actual language and not what the judge

did ~~ it? | wane

A. r wasn't interested in what the judge

did, I was interested in what was in that

affidavit. eee

Q. Did you investigate the factual basis

of that affirmation before you fired Mr.

Graseck to find out whether it was a jus-

. tifiable motion?

A. Under no circumstances would I think

fe

repeated by Graseck “at any other location".

(Addendum, p. 34)

It is undisputed that quite apart

from Middlemiss' feelings about the pro-

priety of petitioner's having left a pen

with a detainee, the attorney in charge

bottomed his dismissal decision on the

fact that Judge Mauceri's order, barring

petitioner from the holding pen, limited

petitioner's ability to operate effec-

tively in the arraignment part. (Pet.App.

15/ cont'd.

¢

that was justified in putting it in there.

If he felt that Judge Green was a constant

agent of the D.A.'s office he should have

brought it to the proper authorities.

Q. You continue to insist that's what

the affidavit says in the face of the

literal wording of the affidavit?

A. Yes."

Cf. Affirmation A 273-77.

-36-

' examination by Judge Weinstein, that he

A, PPs29, 34-36) Clearly, Legal Aid made no.

attempt to challenge the propriety of

the drastic step taken by Judge Mauceri,. .

even though the order was made at the

behest of the Suffolk County Police.

Department -- an agency with questionable

-motives given the’ fact that Graseck had

been previously involved in cases in-

‘volving ¢lients who alleged police mig-

conduct vad including a matter in which a

Trial Judge implicitly found merit to a

claim that the police administered a

beating in the District Court holding

16/ :

» tee FP A | | )

Indeed, Middlemiss testified, upon

‘

was unaware of any written rule prevent-

dnd-atkarneve from diving pens to prison-

. 16/

A 51.

ers as a means of facilitating attorney~-

client communication. Nevertheless, he

indicated that he felt the giving of the

pen was a ee tee serious act to

warrant a dismissal. In commenting on

Middlemiss' testimony, Judge Weinstein

stated:

“I must say, I find this whole thing

very strange. I know I would sup-

pose if I was representing someone

I would tell him, write out what you

think or give me a list of names."

1Ja/

Later, during the course of the first

trial, Judge Mauceri conceded that, prior

‘to being notified by the police of Gra-

seck's actions in the holding area, he

was also unaware of any prohibition

a

| 18/

against attorneys giving pens to clients.

Yet, he, nonetheless, felt that the‘ extra-

ordinary steps, of barring petitioner

from the detention cells and notifying

Middlemiss both orally and in writing

of his actions, were a Mil

over, J. Mauceri didn't feel that peti-

tioner's ;lack of knowledge of any such

rule--if it existed--should have been a

relevant factor in arriving at his deci-

sion as to how to deal with the complaint

20/

by police.

48/

A 132-33.

19/

A 132, 139; Mauceri testified that he

. has never communicated with Legal Aid

about an attorney other than petitioner.

29/

The following exchange between Mauceri

and counsel, at the first trial, is indi-

. Cative of Mauceri’s inability to justify

his order barring petitioner from the

(continued next page)

-39-

Although petitioner consistently,

and without contradiction, declared that

he received no prior notice of any rule

forbidding attorneys from leaving pens

with detainees, a key factual determina~

tion of the District Court was that oral

admonishments by the security force per-

sonnel in the detention area had been

given. (Pet. App. B, p. 17) The Court of

20/ cont'd.

the holding area (A 132-34):

"QO. You had personally promulgated any

rule or procedure with regard to writing

implements in the detention pen?

A. No.

Q. Prior to your conversation with

Patrolman Mitchell |who reported the pen

* gncident to Maucerij] were you aware of

that?

A. Allowing them to have pens?

Q. Yes.

A. I wasn't aware. ... No I wasn't aware

-40-

Appeals, however, declined to adopt

this factual’ determination. (Pet. App.

20/ cont'd. J

of any rule whether they could give it or

not give it.

Q. Do you know whether Mr. Graseck was

aware of such a rule?

A. I wouldn't know.

i

Q. Dida‘'t you think that was a relevant

consideration before you excused him from

the detention pen whether he was knowing-

ly violating the rule?

A. Are you asking me do I think that?

No, he was violating the rule according

to the police of the detention pen. The(y)

felt it was a - - since it was an unusual

agreement we had that's why we barred

him from going in.

Q. So you didn't think it was relevant

whether Mr. Graseck knew or didn't know

that he was violating a police rule?

A. True. eee

Q. Did you ask him, did you conduct any

investigation to determine whether other

, institutions, other detention pens or sim-

ilar institutions had similar rules con-

cerning pens?

A. No, I didn't.”

-41-

— 2y/

A, Pp. 13-14.

In short, the record amply supports

petitioner's contention that Middlemiss

made no effort to challenge the drastic

measures. taken by a judicial officer.

The attorney in charge did not ask any

questions concerning Mauceri's order,

even though it was obvious that the fac-

tual basis for it was, to say the least,

questionable. Moreover, the appropriate-

ness of any such alleged rule was not

self evident and Middlemiss' failure to

inquire into or seek to delineate the

2)/ '

The Court of Appeals stated:

“Whether the security personnel had

previously given instructions never to

leave such instruments with detainees

because of their potential use as wea-

pons is in dispute.”

Petitioner's testimony, in this regard,

. was Gisputed only by an assertion con-

tained in the trial Court's memorandum

decision.

-42-

extent of any restriction on the right

of his representatives to freely commun-

icate with Legal Aid clients, who were

pre-trial detainees, is noteworthy. See

Judge Weinstein's comments, supra.

22/ :

The following exchange between Mauceri

and counsel is also noteworthy (A 142):

"Q. Did Mr. Middlemiss ask you in any

way what the basis of this rule barring

pens was?

A. Wo.

Q. Did he question you in any way con-

cerning the facts of Mr. Graseck's attempt-

ing to give a pen to his clients?

A. You mean why Mr. Graseck gave it to

him or the fact he left it with him?

Q. Mo, why he left it with him?

A. No.

Q. Did you tell Mr. Middlemiss how

long you were going to exclude Mr. Graseck

from the pen for?

A. No.”

Clearly, the attorney in charge re-

garded assuring necessary lawyer-client

communication as far less important than

immediate responsiveness to a judicial

directive, irrespective of the peculiar

circumstances in which it was issued

and any possible. adverse effect it might

have on respondent Society's ability to

protect the Sixth Amendment rights- of

its clients. The chronology of events

clearly demonstrates that the discharge

decision was a response to extraordinary

judicial communications to respondent

Pa oma

On November 15, 1972, following the

appearance of charges in Newaday that the

Judiciary had interfered with the work of

A 85.

Legal Aid, the Personnel Committee of

respondent Society convened to discuss

petitioner's dismissal. Immediately

prior to the meeting, Middlemiss private-

24/

ly met with the Committee over lunch.

Clearly, the Committee meeting was

not called to spécifically review and

23/

evaluate ‘dismissal reasons.

24/ i phage

The then President of Suffolk Legal Aid,

who was also a member of the personnel

committee, Howard M. Finkelstein, testi-

fied that at the luncheon (A 164-66):

".e.- the principal topic was how we

were going to run the meeting. We

really never had this kind of a

meeting to review an administrative

decision like this, and we talked

about that .../ahd we discussed the

affair, too, the so-called Graseck

affair ... we decided that we would

hald an informal meeting in the sense

we would come to order... we weren't

quite sure how to -- how to discuss

all or che professional qualifications

and activities of Mr. Graseck, and I

don't know that we came to any great

conclusion. ... We knew that the mat-

ter had gotten a great deal of pub-

licity. It was adverse as far as I

{continued next page)

~45-

Instead, the purpose of the hearing was

to discuss the charges leveled against

the Society by petitioner and Boyle

that the discharge decision was a response

to judicial pressure. Pet. App. B, p. 8.

The burden of coming forward was placed

26/

on petitioner throughout the meeting.

24/ cont'd.

was concerned to the Legal Aid Society,

and was doing us no good ... so we had

a public relations problem on our

hands ...”

25/ .

In fact, Finkelstein's testimony indi-

cated that the Committee was more concern-

ed about adverse publicity than with

resolving the controversy which precipi-

tated the meeting (A 175):

“Except for the charges that Graseck

had wielded against us which had

gotten this publicity and, you know,

which the newspapers feed on, we

really probably wouldn't have had a

meeting."

26/

A 175.

~46-

Indeed, the fairness of the meeting was

also brought into question by Pinkelstein's

comment, at the first trial, that, in any

event, he.was predisposed to the view

the Society could still “... hire and fire

at will.”

Moreover, SSO investiga-

tion inta any of the factual bases for

the dismissal was conducted. Judges

Green and Mauceri were not present at

the meeting and, at no time, was the

committee presented with a written list

28/

of charges against petitioner.

27/

Id.

. 28/

“The meeting was divided into two parts;

during the first half, which was open to

the public, former clients of plaintiff

testified on his behalf. Thereafter, the

balance of the meeting was conducted in

; cn among plaintiff, Boyle, ...

r

espondent |Middlemiss, Costello and the

five members of the Personnel Committee.”

On the day of the meeting, the Committee

voted four to one to uphold the dismissal.

(Pet. App. B, p. 9 )

On January 24, 1973 The Society's

Board of Directors met for the purpose of

reviewing the decision of the Personnel

Committee. The body simply voted to up-

hold Middlemiss’ decision without stating

its reasons for so doing. Pet. App. B,

p-9 . Petitioner was neither informed

of nor present at this meeting. Pet. App.

B, P- 9.

The dismissal procedure--or lack

thereof--was indicative of Legal Aid's

perception of its role as a mere adjunct

‘of the Court; the Society never evaluated

28/ cont'd.

The Personnel Committee then delibera-

ted in private. (Pet. App. B, p.8 )

-48-

the impact its action would have on ser-

vice to clients, but focused only ei:

avoiding adverse publicity while being

uncriticailly obedient to a judicial demand.

It is apparent that due process safe-

guards which would be available to a

retained attorney, perceived by a com-

plaining fudge as overzealous, were not

afforded petitioner.

An evaluation of the reasons offered

to justify the dismissal and the events

surrounding it demonstrates that respon~

dent Society seriously infringed on the

constitutional rights of its clients and

of petitioner. The dismissal signaled

to its staff the Society's preference for

uncritical responsiveness to judicial

suggestions over vigorous advocacy on

‘behalf of indigent clients. It was Legal

-49-

Aid's abdication of its adversary role

which prompted Mr. Boyle to resign.

Addendum pp. 27-28.

Because of the Society's attempts

to support its dismissal decision on the

ground that petitioner allegedly exercised

poor judgment, it‘is noteworthy that

Legal Aid'a view of its role had previous-

ly prompted serious criticism. ina

1970 letter to the Economic Opportunity

Council of Suffolk, Inc., the Federal

Office of Economic Opportunity (OEO),

after conducting an extensive review of

the program offered by the Society,

declared it would not provide any new

‘assistance to Respondent organization,

explaining:

“This program has failed to pro-

vide quality legal representation

-50-

to the client community. Attorneys

have demonstrated a lack of aware-

ness of their responsibility for

full. representation of client's

causes, and a lack of motivation

for aggressive advocacy."

See Addendum, pp.1-8 quote at p. 2.

According to OEO, the tension between

Legal aia and the indigent community

reached the point where the dominate

welfare group in Suffolk County opposed

the refunding of the Society (Id., at

p. 4. The facts marshaled in the OEO

letter are consistent with the Society's

more recent displays of unwillingness to

provide effective representation to the

poor of Suffolk County, when such vigorous

advocacy will jeopardize its close rela-

tionship with members of the Bench, in-

-5l-

|

)

cluding especially Presiding Judge

veicaisios saahs ine helpful in securing:

funding for Legal Aid.

Pollowing Judge Wein atein’s decision

to recuse himself, on application of

respondents, the state action issue was

again wravek, both before Chief Judge

Mishler and before the Second Circuit.

soth ‘determinations vere inconsistent

with Judge Weinstein's conclusion that

Legal Aid engaged in state action.

The Court of Appeals acknowledged

that ener was at least "... an attenuated

causal connection between the conduct of

the fudge and the action) taken by the

" Society that hormally does not exist in

the regulatory context.” — Pet. App. A,

p.29 . The Court concluded, however, that

Legal Aid *...initiated the dismissal

-52<

based on its own independent evaluation

of its needs, rather than at the behest

of the state judges." Pet. App. A, p. 37.

Despite the chronology of events and

testimony discussed herein, the Court

"“.-erefusef/ to read ..." any improper

motives into the’ various communications

from Judges Mauceri and Green to the

Society, which resulted in Graseck's

firing. Pet. App. A, pp.35, 32, 34.

It dismissed Judge Mauceri's comment “to

get this guy out of my court” as a state-

ment “... made in a moment of anger ...".

Pet. App. A, p. 36.

Because it held that the decision

should be affirmed on the basis of its

view of the State action issue, the

Court of Appeals did not reach the merits

) of petitioner's complaint or consider the

question of due process. Pet. App. A,p. 38.

THE COURT OF APPEALS ERRED IN DETERMINING

THAT THE DEFENDANTS-RESPONDENTS. DID NOT |

ENGAGE IN STATE ACTION BY DISMISSING

PETITIONER, THEREBY SANCTIONING IMPOSI-

‘PION OF A PENALTY FOR THE EXERCISE OF

CONSTITUTIONAL RIGHTS.

A. The Court of ‘Appeals Erred in Pailing

to Find State Action in Spite of the

Existence of a Symbiotic Relationship

Which Existed Between the State and

Respondent Society.

In reaching its final decision, .

the Court of Appeals acknowledged that:

“The Supreme Court has not yet addressed

the extent to which the "Symbiotic

* yelationship" analysis of Burton vy.

Wilmington Parking Auth., 365 U.S. 715

(1961) survives Jackson vy. Metropolitan

' Edison Co., 419 U. S. 345 (1974)." Pet.

-54-

App. A, pp.27-28. The Court, citing several

First, Secorid and Third Circuit cases,

noted that there is post-Jackson precedent

for the proposition that actions of a

private institution may fall within the

state action classification "eee @VEN

in the absence of direct State involve-

ment in the challenged activity." Pet.

App. Avid; 28. Nevertheless, - the

Second Circuit's reasdning, benliletaade al-

most exclusively on the nexus approach

to analyzing the state action issue set

forth in Jackson, made only a passing

and confusing reference to the Byrton

mode of analysis:

“not unmindful of the close

working relationship here, we

believe that the absence of govern-

mental participation, let alone of

-55-

“substantial” participation, in

the Society's general management

and internal operations precludes

a finding in this case of the

degree of pervasive interdepen-

dence or partnership contemplated

by Burton.* See Braden vs Univs

of Pittaburch, supra, 496 F. 24

at 635; cf. Schlein v. Milford

Hosp... Incs, supra, 561 F. 2d at

428-29 (holding no state action

because of absence of a nexus

without discussing symbiotic

relationship analysis, where the

state played no part in either

formulating hiring procedures of

hospital or applying them to

appellant. )" Pet. App. A,pp. 28-29.

-56-

One of the cases from the First

Circuit, cited by the Court below, noted

that Jackson specifically reaffirmed

Burton's vitality in situations where a

symbiotic relationship between the govern-

ment and the private party being sued could

be found to exist. Downs vy. Sawtelle,

574 FP. 241 (First Cir. 1978). Quoting

language from Holodnak vy. AVCO Corp.,

Avco-Lcoming Divs, Stratford: 514 F.

2d 285 (Second Cir. 1975), cert. denied

423 U. S. 892 (1975), the Court in Downs

observed at p. 8. that Jackson "... took

pains to stress that the absence of any

proof of state initiation or enforcement

~ would not necessarily be dispositive

in all cases ... that where the state

goes beyond mere regulation of private

oS Fa

conduct and becomes in effect a ‘partner’

or ‘joint venturer' in the enterprise

the inference of state responsibility

for the proscribed conduct could more

easily be made.”

The Second Circuit, however, limit-

ed its discussion and failed to take

account of the fact that a mutually

beneficial relationship, such as the

one existing between the State and Res-~-

pondent Society, is the cornerstone of

the symbiotic relationship contemplated

by Burton. The symbiotic nature of

their relationship is apparent from the

fact that Legal Aid engaged in the con-

stitutionally mandated service of pro-

viding legal assistance to indigents

and plays a central role in the manage-

ment of the Court's congested criminal

-58-

22/

calendar in exchange for exclusive fund-

ing of its operation by Suffolk County

and the performance of administrative favors

20/

by the Court.

22/

See comments of Judge Weinstein, supra

at fn. 2 (herein); Also see testimony of

Edward M. Elliot, a former colleague of

petitioner at the Society's District Court

Bureau, indicating that he viewed his

role as analogous to that of a factory

worker, with the judge playing the role of

production manager (A 266-67): - °-

"It's arraignment part7 almost

like a machine operation, you

just keep going to make sure

things are handled properly and

the parties are given their

rights and released as soon as

possible?

A. Yes ..."

20/ 7

A 128-30; Administrative Judge Mauceri

* testified that he had assisted Legal Aid

in obtaining funding from the County, |

supplied it with the services of a Spanish

interpreter and, at one time, he had ad-

justed the Court's internal assignment

_ policy so that Society attorneys would

(continued next page)

-59-

In Braden v. Univ. of Pittsburgh,

552 F. 2d 948, 961 (Third Cir. 1977),

the Court held that the actions of a

private educational institution consti-

tuted state action where: "The state ...

fthrough its aid program to the private

institution/ was’ able to satisfy the

educational needs of its citizens at a

cost considerably lower than would have

been entailed by the creation of wholly

new institutions. Concomitantly Pitt

/University7 was able to survive as an

institution of higher education ..."; Also

See Holodnak v. Avco Corp., Avco-Lycoming

Div., Stratford, supra at 289-90 (a suit

30/ cont'd

represent only defendants held in custody

and would be required to cover a limited

number of parts.

by a union employee protesting his firing

by a defense’ contractor for publishing

an article critical of his employer and

of union practices, in which the Court |

held that a symbiotic relationship

existed between the federal government

and the AVCO company, because, by support-

ing AVCO's plant operation, the govern-

ment wai! eimultaneouly furthering its

"ses SOnstitutions] interest in raising

and supporting an Army, and providing

and maintaining a Navy. U. S. CONST.

Art. I, I[8, cis. 12, 13." (emphasis

added)

It is apparent that the Second

' Circuit erred in failing to focus on the

primary significance of the symbiotic

relationship doctrine in addressing the

‘state action issue in this case.

-6l-

Siscrimination in the dismissal of peti-

tioner.

In reaching its decision to review

the relationship between the State and the

Legal Aid Society under a rigorous stan-

* @ard before finding state action, the

Second Circuit declared "...that the

less stringent state action standard

‘utilized in racial discrimination cases

-62@

/

is inapplicable here." Pet. App. A,

p. 20 . The Court did not explain ‘how

it reached this conclusion and failed

to discuss the implications of its

determination in light of the recent |

case of Regents of University of Cali-

fornia v. Bakke, .98 S. Ct. 2733 (1978).

Giying preferential treatment to

civil rights litigants who claim that

they have been the object of ciate

discrimination may contravene the spirit

of the Bakke determination. As this

Court pointed out at 98 S. Ct. 2752:

" we. there are serious problems of jus-

tice connected with the idea of preference

itself.” The First Circuit has already

expressed its disagreement with the Second

Circuit on this issue. See Downs v,

’ Sawtelle, supra. Moreover, the First Cir-

-63-

cuit asi declared that even if preferen-

tial treatment of racial cases could be

supported, it “ ... would be inclined

to rcisinds ctieltia’ aiehiniindi of fundamental

rights and racial discrimination together

for the purpose of state action analysis

just as they receive comparable scrutiny

in equal protection cases." Downs v.

Sawtelle, supra at 6, n. 5.

Assuming, arauendo, that sipaiaed

scrutiny should be given to cases involv-

ing alleged racial discrimination, this

case does have significant racial impli-

cations. The dischrage was based, in

part, on petitioner's involvement in

cases involving complaints of police

brutality.

31/

Graseck, on occasion, traveled to

' the Suffolk County Human Rights Commission

(continued next page)

-64-

That police brutality was a serious

problem in Suffolk County, meriting

the attention of bench and bar alike,

is a matter of public record. See,

Ce Coleman v. Klein, E.D.N.¥., 73

Civ. 1857 (JBW) Decision dictated into

record. Respondent Society, however,

perceived petitioner's efforts to grapple

with the problem within the context of

his representation of indigent dk tne

defendants as a preoccupation rather

than as a useful way for a legal aid

32/

attorney to expend his energies.

B1/ cont'd.

and to the Internal Affairs Division

of the Suffolk County Police Department.

(A 51) His former supervisor, Tom Boyle,

also made a point of assigning him cases

in which it appeared that criminal

charges had been lodged in an attempt

to “cover up” police misconduct. See

- Supra at fn. 5.

ve

The reasoning on the basis of which

the Second Circuit applies a more flexible

standard in finding state action when

direct allegations of racial discrimination

See Trial Transcript, May 31, 1977,

at 19, As previously indicated, Judge

Mauceri's order banning Graseck from

the Court detention area was issued at

the behest of the Suffolk County Police

Department. Mauceri's responsiveness

to the Police Department was striking.

He readily acceded to the request of a

Patrolman that petitioner be excluddd

from the holding pens, although he him-

self was unaware of any rule against

providing detainees with pens. The

following is the exchange at trial

between counsel and Mauceri on this

point (A 131):

"“Q. And what did he /Patrolman

Mitchell7 say to you after he told

you that Mr. Graseck had given the

pen to a prisoner?

A... He /Graseck/ had done that and

left without telling anybody ...

he /Patrolman Mitchell/ said on

oceasion he's /petitioner's/7 done

it before and would it be all

right to keep him out of the back

(continued next page)

-66-

are involved would justify application

of that standard to this case. See

Zavlor v. Consolidated Edisen Co, of

New York, Inc., 552 F. 2d 39, 42 (Second

Cir. 1977), cert denied, 434 U.8. 845

(1977): “Because of the generally recog-

nized anathematic status of any govern-

ment sponsored racial discrimination,

for ere ern we have held that-a lesser

degree of state involvement is rinbtana

in cases alleging such discrimination ..."

It is apparent that racial minorities

are overrepresented both as clients of

32/ cont'd.

room of the .../lock up7. So I

said, fine.

Q. Was there a rule at that time

Lwhich7 forbade prisoners from

having pens in the ... flock up/?

A. I assume there was no rule."

o67=

such free legal assistance programs as

that respondent Society contracts to pro-

vide and as victims of police miscon-

duct. Because a Legal Aid lawyer, to a

far greater extent than a private attor-

ney, can be accurately categorized as an

attorney for minority groups, action

directed against a lawyer for indigent

defendants, because of his insistence

on behalf of such clients, is closely

related to.racial discrimination.

For the foregoing reasons, it is

respectfully urged that this Court

grant the within petition, inter alia

for the purpose of making it clear, as

the First Circuit has declared, that the

existence or absence of state action

cannot depend on whether claims of

racial discrimination, as distinguished

-68-

Be i al ee en yl

from other violations of fundamental

rights, are before the Court. .

The Court below rejected the argu-

ment that Legal Aid had engage” in state

action in dismissing petitioner by vir-

tue of the fact that its activities in

the criminal area were exclusively

funded by Suffolk County and that it

had never maintained a meaningful pri-

vate existence prior to such funding.

Pet. App. A, pp. 21-24. . Lefcourt vs

Lega] Aid Seciety, 445 F. 2d 1150 (Second

Cir. 1971) was treated as controlling

even though the defendant, in that case,

received considerable private financing

and had maintained a healthy private

existence long before it sought govern-

mental assistance.

In sharp contrast, respondent

Society, herein, enjoys its virtual

monopoly status in the area of indigent

criminal defense entirely as a result

of its contractual arrangement with

Suffolk County, which entity is the

sole source of its funding. Pet. App.

A, p. 22 fn. 19. Because of the County's

decision to enter into agreements with

Legal Aid, almost all indigent criminal

defendants in Suffolk County must accept

-70-

representation by one or more of respon-

dent Society's agents or undertake to

act as their own counsel.

Because of the inability of an

indigent defendant to make his own

selection, it is extremely difficult

for a legal aid attorney to develop a

good rapport with him--so important to

the presentation of an adequate defense,

which depends upon a good working rela-

tionship between attorney and client.

23/

See Report by Jonathan D. Casper,

Department of Political Science, Stan-

ford University, "Criminal Courts: The

defendant's Perspective (1976) pp. 211-

1z, “One of the major sources of client

suspicion ... is the institutional

_ position of the public defender. Public

defenders (whether assigned or working

for public defender organizations) do

not engage in financial exchanges with

clients, and hence clients do not feel

they have the leverage that such an

exchange can provide. Moreover, the

ation

the Legal Aid Society of Suffolk

County never developed a tradition of

vigorous assertion of defendants’ rights.

The criminal division owes its role and

existence exclusively to the County's

decision to contract with it. There-

fore, respondent -Society, which enjoys

virtual monopoly status in Suffolk County

23/

client typically cannot choose his

public defender, but one is simply “given"

to him. Finally not only is the client

not in a position to pay the public

defender, but someone else is; and that

“someone” is also paying the prosecutor

and judge, leading many defendants to

have real doubts as to whether “their”

lawyer really belongs to them. ...

Many defendants believe--rightly or

wrongly--that privately retained attor-

neys are “real” lawyers, and that ap-

pointed counsel are somehow inferior

substitutes. This belief ... stems

* €rom the fact that there is a market~

place in which one can“buy” the services

of attorneys. Defendants realize that

they cannot participate in it but believe

that what is available there is somehow

_ superior to what is “given” them free

of charge. ...”

-72=-

as the provider of criminal defense...

services to-indigents, almost unilateral--

ly determines the quality of represen-

tation available to such clients. More~

over, it’ irresponsibly heightens client

distrust by focusing on judicial con-

cerns and neglecting those of indigent

defendants.

Legal Aid's virtual exclusive

control over the funds for the defense

of indigent criminal defendants in

Suffolk County enables it to restrain

its staff from engaging in the vigorous

representation to which clients are

entitled pursuant to the Code of Pro-

- fessional Responsibility and in accor-

dance with the Sixth Amendment. The

monopoly status enjoyed by respondent

‘ Society gives it the power to set an

informal standard and to deprive its

clientele of the right to vigorous

legal representation. See, for example,

A 310-34, Addendum, pp. 36-54, state-

ments of employees and of former clients

of respondent Society which were admit-

ted into evidence during trial, particu-

larly at pp. 36-39, 40. The connection

between Legal Aid's County-created mono-

poly status and its willingness and

power to subordinate provision of deter-

mined advocacy to maintaining rapport

with powerful representatives of the

local government, strongly indicates

that a finding of state action on the

part of respondent Society should have

been made. In Jackson v. Metropolitan

Edison Co., supra, 419 U. S. 351-52,

this Court indicated that a sufficient

-74-

eee relationship between the challenged

actions of the entities involved and their

monopoly status ..." might render appro-

priate a finding of state action. '

D. The Becond Circuit's conclusion »

that there was no state action makes

possible evasion of Sixth Amendment

e lit 8 en t St

Since Gideon v, Wainright, 372

U.S. 335 (1963), the fundamental and

sweeping nature of the Sixth Amendment's

guarantee of the right to counsel has

been clear. The conclusion that res-

pondent Society did not engage in state

‘ action could seriously undermine the

v, ,

oR ey a

special protection afforded under the

Sixth Amendment and effect a de facto

repeal of the Gideon decision.

By permitting the actions of Legal

Aid, the transferee of the government's

responsibility to provide counsel for

indigents, to be.treated as private

conduct, the Court's decision seems to

provide a loop hole, which will.make .

possible evasion of the Sixth Amendment

duty to provide the meaningful and effec-

tive assistance of counsel to indigents.

In practical effect, the Second

Circuit has ruled that Sixth Amendment

protections cannot be enforced on behalf

of the poor. Thus, a dangerous prece-

dent is established which can be used

to frustrate the goal of equal justice

-76-

Wate tae ae ee eee | Oe

under law, by relegating to indigent 4 iti

defendants the mere form of representa-_ -

tion by coungel, without the reality of

independent advocacy. i

The problem of providing adequate —

representation to the powerless is nail

difficult. It appears that such clients’

inability to effectively demand quality

representation renders enforcement .of

theoretical rights virtually impossible,

particularly if federal courts can be

expected to determine that they lack

jurisdiction to consider such matters.

In a paper entitled Inmate Study

of 18 B Indigent Defense Panel (Court

Appointed Attorneys) prepared by The

Prison Reform Task Force of the New

York Society for Ethical Culture for

a

7 . - — =. = |. ae Pe ee eee, ee ere

4 .

Inmate Committee for Judicial and Legis- majority of cases of indigent

lative Reform, dated May 27, 1977, the defendants who are respondents

following language was used at p. 7: to this survey,"

Naat Judge Irving Ben Cooper si ha Moreover, the broader implications

“in speaking of one particular of this decision might enable the State

‘trial on the federal level stated

to ignore other responsibilities, spell-

that the attorneys appointed by ed out in the Constitution, by transfer-

the court “lacked preparation, ring the implementation of such obliga-

failed to submit the memoranda ‘of ‘tions to formally private individuals

law he asked for, did not call or groups.

defense witnesses, failed to ques~ Therefore, it is respectfully

“tion government witnesses and urged that this Court grant certiorari

failed to advance any theory in to review the Second Circuit determina-

the case that would help their tion, in order to protect the fundamen-

client ‘the impression was poor, tal nature of the Sixth Amendment guarantee

it was ragged, it was dishearten~ ‘ from erosion, through the mechanism of

ing'.” ... What Judge Cooper said delegation of responsibility from the

of the attorneys in that particular State to a formally private entity.

trial can also be said for the

-~78—

sooo) SQNGLUSION. | ADDENDA

tn seat segh ) tel Table of Contents

For the reasons stated, the |

Petitioner respectfully prays that the

, Trial Exhibit 9 for identifica-

Writ of Certiorari be GRANTED. 2 pion a ete Rit a ik tia 2 RE |

5. Red 4 ‘nl Lge Me SY ye

Dated: Port Washington, New York on We RSE ES. i a: Ae RR el eR

November 20, 1978.

TE PO EO euros sé a Bw eke

Respectfully submitted, WETGL CEMGeE D1 iS wire wey «20

ee SB oe ae eg ge ee

wsh JAMES C. SCHULTZ TeAet Beni bit Fi. 6) o2ch ses) « 30

318 Terry Road

Hauppauge, New York 11787 Ue: ER a cw ig ik ee

* ARTHUR V. GRASECK, JR., | pe et Ee . Aa er. *

of Counsel

Attorneys for Petitioner

-80-

LETTER DATED FEBRUARY 27, 1970

(RETYPED)

FEB 27, 1970 (stamped)

Mr. William Larregui (handwritten):

Director

Economic Opportunity Council Il1tr also to

of Suffolk, Inc. CC: to Louis F. Buck

83 East Main Street ' Chrman.

Patchogue, Long Island, New York Bd. of Dirs.

Dear Mr. Larregui:

The Office of Economic Opportunity has

conducted an extensive review of the

legal services program conducted by the

Legal Aid Society of Suffolk County,

Inc., ("The Legal Aid Society,") a

delegate agency of the Economic Oppor-

tunity Council of Suffolk, Inc., (the

Economic Opportunity Council"). We

have concluded that the program conduct-

ed by the Legal Aid Society has been

ineffective and inefficient and has

failed to provide adequate legal repre-

sentation to the poor of Suffolk County.

Consequently, the Office of Economic

Opportunity has made a tentative decision

not to provide new assistance to the

Legal Aid Society after March 31, 1970.

However, to enable the Legal Aid Society

to conclude its program we are providing

the Economic Opportunity Council with a

grant of $43,362 to be delegated to the

Legal Aid Society. It should be noted

that the termination date of this grant

is March 3l, 1970.

We request that the Economic Opportunity

Council and the Legal Aid Society submit

a plan for closing its current program.

This plan must include adequate provision

for handling the current cases which

Legal Aid attorneys have received as

part of the approved work program of the

Office of Economic Opportunity grant.

Such a plan should be submitted no later

_ than March 15, 1970 to Terry F. Lenzner,

Associate Director for Legal Services,

Office of Economic Opportunity, 1200

19th Street, N.W., Washington, D. C.

20506.

The following reasons form the basis of

the Office of Economic Opportunity's

decision not to refund that portion of

Office of Economic Opportunity Grant

No. 0394 which is used to support the

activities of the Legal Aid Society.

1. The program has failed to provide

quality legal representation to

the client community. Attorneys

have demonstrated a lack of aware-

ness of their responsibility for

full representation of clients’

causes, and a lack of motivation

for aggressive advocacy. One

attorney had never appealed a

welfare hearing decision on the

ground that the client could not

afford the cost of the transcripts

although in New York State tran-

scripts are provided without

charge. Other attorneys had no

knowledge of relevant legislation

and court decisions. Reflective

of the situation is the total

inadequacy of the libraries. One

attorney had a copy of the Poverty

Law Reporter in which not one

supplement had been filed. The

attorney indicated that he rarely

researches a point of law. Many

of the attorneys have only recent-

ly been admitted to the Bar and

. yet there are no regular staff

meetings or training sessions.

The end result has been a low

quality of service.

Statistical reports for 1969

further indicate a marked lack of

activity by the Legal Aid Society.

For example, the statistical report

submitted by the Legal Aid Society

to the Office of Economic Oppor-

tunity (CAP Form 58a) for the

period October--December 1969

indicates that during the three

month period, the project accepted

1,395 cases. Of that number only

77 cases were litigated and only

78 of the cases not litigated

2.

3.

were resolved in a manner which

The Legal Aid Society has failed

to provide adequate skilled legal

representation to the low income —

residents of Suffolk County.

Evaluators who visited the program

found significant dissatisfaction

among members of the client commun-

ity regarding the operations of

Suffolk legal aid. Some clients

complained of the lack of commun-

ication between attorneys and

clients. Others complained that

the attorneys were vague and un-

prepared in court. The bitter-

ness of the complaints is best

illustrated by the negative atti-

tudes of many welfare recipients.

They found the attorneys dis-

interested and in some instances

hostile to their problems. As a

result, the dominant welfare group

in the county has retained its own

counsel and actually opposed .

refunding of the Legal Aid Society.

The existence of this situation

is indicative of the program's

obvious lack of communication.with

the community.

The special conditions of the

grant to the Legal Aid Society

stress the importance of the pro-

ject's actively engaging in both

at

community action and law reform.

The special conditions state:

“By March 1, 1969, delegate agency

shall submit satisfactory to the

Regional Legal Services Director

of Office of Economic Opportunity's

detailed program, of law reform

and community action, including:

1. Long range and short range

goals

2. Participation of the target

community and low income

groups in establishing

priorities

3. Organization, incorporation,

and representation of low

income groups

4. Test cases and class actions

5. Legislative and administra-

tive reform

6. Provisions for backup

research

7. Intra-project and inter-

project coordination

8. Timetable for implementation

The project has not only failed

to submit the detailed program in

a manner satisfactory to the Office

of Economic Opportunity Regional

Services Office as required by

the special conditions but has also

failed to involve itself in an ade-

quate manner in community action

or law reform. Most of the attor-

neys admitted to evaluators that

they never get out into the comm-

nity and rely solely upon clients

who walk in for services. The

investigators’ work is primarily

eligibility investigations. The

evaluation indicated that they

have never worked with any community

group or had any significant con-

tacts within the poor community.

The project has failed to develop

and implement acceptable priorities

in accordance with special condi-

tions incorporated in previous

grants from the Office of Economic

Opportunity. The absence of such

priorities has resulted in the

growth of an unmanageable and un-

defined caseload. For example:

one attorney had opened 690 new

matters in a recent three month

period. Such a situation renders

it impossible to adequately give

even routine legal advice, much

less deal with law reform issues

or to thoroughly research a point

of law. Conditions which impair

judgment or deteriorate the quality

of legal counselling constitute a

violation of the promise to provide

quality legal representation. No

one attorney has developed an ex-

pertise in any area of poverty law,

resulting in wholly inadequate

progress in initiating meaningful

iin

<

law reform activity on behalf of

the low income residents of the

community.

S. The Board of Directors has not

demonstrated the ability to func-

tion as an effective policy-making

body. Meetings are infrequent with

varying attendance.

In accordance with Office of Economic

Opportunity policy, you may submit writ-

ten material in refutation of the reasons

for the Office of Economic Opportunity

tentative decision not to refund the

Legal Aid Society. In addition, the

Office of Economic Opportunity will,

at your request, hold an informal meet-

ing at which time you may make an oral

presentation as to why the Legal Aid

Society should be refunded. Any request

for such an informal meeting must be

made in writing by the Board of Direc-

tors of the Economic Opportunity Council

and/or by the Board of Directors of the

Legal Aid Society no later than March

10, 1970. Any such request should be

sent by registered mail to Terry. F.

Lenzner, Associate Director for Legal

Services, Office of Economic Opportunity,

1200 19th Street, Northwest, Washington,

D. C. 20506.

Both the Economic Opportunity Council

and the Legal Aid Society have the right

to be represented by counsel at the

informal meeting discussed above. In

addition, the Office of Economic Oppor-

tunity will at your request authorize

the Boards of Directors of the Economic

Opportunity Council and the Legal Aid

Society to use grant funds to pay travel

and per diem expenses for two represen-

tatives of each organization to attend

the informal meeting. If the Economic

Opportunity Council wishes to be repre-

sented by an attorney at the informal

meeting and does not have an attorney

acting in that capacity as a regular

staff member, the Council will be author-

ized to use grant funds to obtain the

services of an attorney. This use of

grant funds will be limited, however,

to the payment of a legal fee which may

not exceed $100 for an attorney to

attend the meeting and the travel

expenses and per diem of the attorney.

If the Legal Aid Society wishes to be

represented by counsel at the informal

meeting the Board of Directors of the

Legal Aid Society will be authorized

to use grant funds to pay the travel

and per diem expenses of an attorney on

its staff to attend the meeting. The

payment of all travel and per diem

expenses must be in strict conformity

with Office of Economic Opportunity

Instruction 6910-1.

Sincerely,

Terry F. Lenzner

Associate Director for

the Office of Legal Services

-8-

PLAINTIFF'S EXHIBIT 5

RESUME OF ARTHUR V. GRASECK, JR.

ARTHUR V. GRASECK, JR.

70 Davis Road

Port Washington, New York 11050

PERSONAL:

LEGAL

EDUCATION:

PRE-LEGAL

EDUCATION:

LEGAL

EMPLOYMENT:

516 PO7-2486

Age: 39; Single; Military

Obligation Completed

Bar Status: Member of New York

and Federal Bars

NEW YORK UNIVERSITY LAW SCHOOL,

LL.M., June, 1968

YALE LAW SCHOOL, LL.B., June,

1963

Finalist, CARDOZO Moot Court

Brief Prize; Legal Aid

HOBART COLLEGE, B.A., August,

1956

Major: Sociology

Honors: Phi Beta Kappa

, Cum Laude

Sociology Prize

PRIVATE PRACTICE, representing

criminal defendants. 10/72-Present

SUFFOLK COUNTY LEGAL AID, repre-

senting defendants in criminal

matters. 7/71-10/72

COUNSEL, Assemblyman Irwin

J. Landes, 18th A.D., Draft-

ing proposed legislation.

1/71-4/71

DEPUTY NASSAU COUNTY ATTORNEY,

Mineola, New York, 2/67-12/67;

1/69-1/71. ‘

Arguing Article 78 proceedings,

research on proposed County

projects, appellate briefs,

opinion letters.

NASSAU COUNTY LAW SERVICES

COMMITTEE, INC., Mineola,

New York, 7/68-1/69

Attorney in charge of Hemp-

stead Office; arguing and

preparing cases for court and

administrative determination.

COOPER, OSTRIN, DEVARCO AND

ACKERMAN, New York City,

12/67-7/68

Arguing before administrative

agencies, trial assistant

in court cases, appellate

briefs.

NEW YORK STATE LABOR RE-

LATIONS BOARD, New York City,

10/64~-1/67

Drafting decisions, review-

ing and reporting on records

-10-

of hearings, interviewing

complainants, preparing

charges and petitions,

supervising representation

elections.

SERVICE

RECORD: U.S. NAVY, 2/57-6/60

Duties: Intelligence

Agent, Ship's Legal Officer

Argued court-martial cases.

-li-

PLAINTIFF'S EXHIBIT 10

NEWSPAPER ARTICLE

| (RETYPED)

LEGAL AID CHIEF RESIGNS IN DISPUTE

By John Hildebrand November 7,1972

A branch chief of the Suffolk Legal

Aid Society has resigned, charging that

the society has bowed to undue pressures

from the administrative judge of the Dis-

trict Court, Angelo Mauceri. Mauceri has

angrily denied the charge.

Attorney E. Thomas Boyle, head of

a six-man Legal Aid unit in Riverhead,

charged in his resignation letter of Oct.

31 that the society has recently fired

a fellow lawyer, Arthur Graseck, for fall-

ing into "judicial disfavor."

"..-It is of grave importance that

the Legal Aid Society, despite its County

“Pn

funding, remain independent and totally

uninfluenced by any branch of County

Government," wrote Boyle, whose resigna-

tion is to take effect Dec. l.

“Mr. Boyle is off his rocker!" re-

plied Mauceri, who has been in charge

of administration for Suffolk's District

Court system since the first of the year.

While he denied applying pressure, Mauceri

said that he had twice criticized Graseck's

courtroom behavior in talks with Graseck

himself and with two of his Legal Aid

superiors. The society is a private corp-

oration that has received more than

$600,000 in county funds this year to de-

fend impoverished persons.

Boyle's letter contended that Legal

Aid's staff director of 12 years, John F.

sifin

Middlemiss Jr., had fired Graseck on

Oct. 13 because of Mauceri's pressure,

A copy of the letter was given to News-

day by an outside source who asked not

to be named. Middlemiss denied that

pressure had been applied and declined

to discuss his reasons for firing

Graseck, saying only that the action was

prompted by "certain actions (by Graseck)

brought to my attention by Judge Mauceri

and many other people.”

"Look, what's the alternative?"

asked Mauceri, in discussing his criti-

cism of Graseck. "I could go to the Bar

Association (for a formal hearing). But

maybe the guy made a mistake. So I call

his boss just like I would with any

private lawyer." Mauceri added that, in

-14-

—— ee

his five years on the Suffolk bench,

he has not found cause to criticize any

other lawyer in the same way.

As an example of what he considered

to be Graseck's “improper” behavior,

Mauceri cited a court paper signed by

the 36-year-old lawyer in September. In

that document, a review of a criminal

trial, Graseck suggested that another

district judge “has functioned as an

agent of the district attorney ..."

Mauceri said that he thought Graseck

should refrain from such charges, unless

he were willing to submit them to the

Suffolk County Bar Association for review.

"The guy's a bum," said Mauceri of

his courtroom encounters with Graseck.

"He comes into court soiled all the time --

-15-

looks like a bum off the Bowery." But

he added that his formal criticism of

Graseck had applied to courtroom actions,

not attire. Graseck and Boyle declined

to comment on Mauceri's statements, say-

ing that they were awaiting a review of

the case by the Legal Aid Society.

"I'd just like to give Legal Aid

a chance to take a fresh look at what's

happened," said Graseck, a Port Washington

resident with prematurely gray, shoulder

length hair, who favors modish knit suits

and wide ties. Legal Aid officials con-

firmed that their personnel committee had

tentatively scheduled a Nov. 15 meeting

to discuss the matter.

While society officers would not

comment directly on the dispute, several

said they were not surprised that Graseck,

~16-

who considers himself a social activist,

would ruffle some local officials.

"In this area, I think you've got

to get along with the bench," said one

Legal Aid director, himself a lawyer.

"In one area, like Suffolk, a lawyer may

take very strong positions in a case, and

it'll subject him to criticism ... But

in another area, like Manhattan say,

people are willing to accept it ... The

spirit here is toward getting along.

This is more of a provincial community."

Legal Aid Officials agreed on the

competence of Boyle, a soft-spoken, 33-

year old St. James resident who has worked

for the society for six years. Many said

they hoped that Boyle would not quit,

which could create a backlog of cases.

“He's a good lawyer," Mauceri conceded.

=17=

SSS

“But he has an immature mind."

Photograph of E. Thomas

Boyle

Newsday Photo by Mitch Turner

“..eIt is of grave importance that the

Legal Aid Society ... remain independent

eee," said lawyer E. Thomas Boyle, who

resigned criticizing the actions of Judge

Angelo Mauceri.

-18-

Photograph of Angelo

Mauceri

Newsday Photo by George Rubef

"Mr. Boyle is off his rocker!" replied

Angelo Mauceri, the administrative judge

of Suffolk's District Court, seen here

during the 1971 election.

-~19-

PLAINTIFF'S EXHIBIT ll

NEWSPAPER ARTICLE

(RETYPED)

. SIGNATION STIONED

By John Hildebrand November 9, 1972

District Court Administrative Judge

Angelo Mauceri has said that a critic who

recently resigned from the Suffolk Legal

Aid Society, protesting "pressures" from

the judge, might have been planning to

quit anyway.

The critic, Legal Aid branch chief

E. Thomas Boyle denied this. He said,

relatives had encouraged him to enter

private practice, but added that he had

not agreed to the idea. Last week, Boyle

resigned effective Dec. l, charging that

the society had fired a fellow lawyer,

Arthur Graseck, for falling into Mauceri's

-20-

“judicial disfavor." Boyle contended that

the independence of the society, which

defends indigents in court, was at stake.

In a Nov. 2 letter to the society,

Mauceri denied the allegation, and said:

"I want...to state, for no other reason

but to show my utter distaste and contempt

for this type of attack, that on two

occasions eaiatibans this year Mr. E.T.B.

(Boyle) told me she was being asked to go

into private practice ... This alleged in-

cident (the firing) may have been the

catalyst for him."

Mauceri complained also that Boyle,

despite his "fervor for independence from

the judiciary," had asked him earlier this

year to lobby for passage of Legal Aid's

requested $1,200,000 county budget. Mauceri

has been the administrative judge of the

-21-

county's 258-employe district court system

since the first of the year.

"I have no future plans, " replied

Boyle, who heads a six-man Legal Aid unit

in Riverhead. He declined to comment on

his alleged request to Mauceri to lobby

for Legal Aid's budget, saying that he

wanted to discuss the matter privately

with the society's personnel committee.

The committee is tentatively scheduled

to review the Mauceri-Boyle dispute Wednes-

day.

In a related development, Mauceri

flatly denied a published report that he

had referred to Graseck, the fired attor-

ney, as "a bum." But a reporter's notes,

based on a recent half-hour interview with

the judge, indicate that Mauceri said of

Graseck: “He comes into court soiled all

-22-

AE EGR

the time -- looks like a bum off the

Bowery."

Henry G. Wenzel, a past president

of the Suffolk Bar Association, ease,

that the association probably would not

review the case unless one of the dis-

putants requested such action. "I can't

call to mind anything that would prevent

a judge from criticizing the attire of

an attorney when he comes to court,” said

Wenzel.

Graseck has declined to reply pub-

licly to Mauceri's comments, saying that

he wants to give Legal Aid "a chance to

take a fresh look at what's happened."

The 36-year-old Port Washington attorney,

who studied at the Yale and New York

University law schools, worked at Suffolk

Legal Aid from July, 1971 to last Oct. 13

-23-

and said he handled about 40 cases. He

has said that he formerly worked for a

Manhattan law firm, the State Labor Re-

lations Board and the county attorney's

office in Nassau.

Shortly before he was fired, Graseck

was assigned by Legal Aid to represent

Etanislao Oquendo, a Brentwood man charged

with resisting arrest and harassment of

police. The dismissal was effective short-

ly before Oquendo's trial began. Society

officials have said that they would have

provided another lawyer for Oquendo, but

Graseck retained the case, though he said

he received no payment. A jury found

Oquendo innocent on the first charge, and

was unable to decide on the second. A re-

trial is scheduled for Nov. 27, and Graseck

says he will defend Oquendo again.

-24-

John F. Middlemiss Jr., the Legal

Aid director, has said that he fired

Graseck for "certain actions brought to

my attention by Judge Mauceri and many

other people.” One complaint by Mauceri

involved a court paper written last

September by Graseck, which suggested

that District Court Judge Edward U. Green

had “functioned as an agent of the dis-

trict attorney..." Green said yesterday

that he had originally reported the in-

cident to Mauceri because "the court

record didn't substantiate what he

(Graseck) said." Graseck insists that

it did.

~25=

en rr ree ee

PLAINTIFF'S EXHIBIT 2

LETTER DATED OCTOBER 31, 1972

Qctober 31, 1972

Howard Finkelstein, Esq.

President, Board of Directors

Legal Aid Society of Suffolk County

456 Griffing Avenue |

Riverhead, New York 11901

Dear Mr. Finkelstein:

It is with regret that I herein sub-

mit my resignation from the Criminal Div-

ision of the Legal Aid Society to become

effective on December 1, 1972. Notice of

this decision was given to Mr. John

Middlemiss personally on October 24, 1972.

I feel obliged to offer an explana-

tion for the action which I have taken.

Mr. Arthur Graseck, an attorney

employed by the Criminal Division of the

Legal Aid Society, assigned to the First

District Court in Hauppauge was summarily

discharged on Friday, October 13, 1972.

He was at that time confronted by Mr.

Middlemiss with a type-written letter of

resignation which Mr. Graseck refused to

Sign. Thereafter, Mr. Graseck was ad-

-26-

vised that his services with Legal Aid

were terminated.

Upon being advised what had occurred,

I consulted Mr. Middlemiss with regard to

the particular acts of conduct which led

to the severe action taken in Mr. Graseck's

case and urged reconsideration and re-in-

statement. Based on Mr. Middlemiss' ex-

planation of the situation, I have con-

cluded that Mr. Graseck was fired as a

result of certain pressures brought to

bear by the administrative judge of the

District Court, Angelo Mauceri, J.D.D., and

that Mr. Graseck's firing was totally un-

warranted under the circumstances and not

in the best interest of the Legal Aid

Society or the persons whom we represent.

In my opinion, it is of grave im-

portance that the Legal Aid Society, de-

spite its County funding, remain independ-

ent and totally un-influenced by any branch

of County government, whether it be execu-

tive, legislative or judicial. This is no

higher standard than that imposed upon any

other attorney assigned or retained to

represent a client before the bar. As

stated in Canon 15 of the New York State

Bar Association Canons of Ethics:

"No fear of judicial dis-

favor or public unpopular-

ity should restrain him

from the full discharge

of his duty. In the

judicial forum the client

<=

is entitled to benefit

of any and every remedy

and defense that is

authorized by the law of

the land, and he may ex-

pect his lawyer to assert

every such remedy or de-

fense."

It is apparent from my investigation

that Mr. Graseck was discharged for in-

curring "judicial disfavor". A grave in-

justice has been committed on Mr. Graseck

personally, and of equal importance, this

incident can only serve to have an adverse

effect on the quality of representation

provided those in the County who seek the

services of Legal Aid.

I cannot accept this decision. I

feel it marks a turning point in the his-

tory of the Criminal Division of the Legal

Aid Society and under no circumstances

do I want to be associated with an organ-

ization which has lost sight of its primary

purpose and function. I can think of no

other single act which will more serve

to dampen the zeal and vigor of a Legal

Aid Attorney's defense of his client than

the threat of dismissal for incurring

"judicial disfavor".

I shall remain deeply indebted to

the Legal Aid Society for the unique

opportunity it has afforded me to grow in

knowledge and experience in the practice

-28-

| of law.

ETB:mla

Copies to:

Sincerely yours,

/S/ E. T. B.

E. Thomas Boyle,

Attorney in Charge of

the County Court

-29-—

a

DISTRICT COURT OF SUFFOLK COUNTY

BOX 1000

Veterans Memorial Highway

Hauppauge, New York 11787

HON. ANGELO MAUCERI

Administrative Judge

EDWARD M. BARRY JOSEPH W. VAIL

Chief Clerk Deputy Chief Clerk

November 2, 1972

PERSONAL & UNOFFICIAL

Howard M, Finkelstein, Esa.

President, Board of Directors

Legal Aid Society of Suffolk County

456 Griffing Avenue

Riverhead, New York 11901

Dear Mr. Finkelstein:

Mr. Middlemiss was kind enough to

provide me with a copy of a letter that

Mr. E.T.B. sent to you and the Board of

Directors of the Legal Aid Society. It

is fortunate, or unfortunate, depending

on Mr. Boyle's point of view, that he

refrained from sending me a copy. I am

sending him a copy of this letter, a

courtesy he did not afford me which is

interesting since he has cloaked himself

as a champion of individual rights.

Mr. E.T.B. accuses me, as Admin-

istrative Judge, of applying judicial

pressure to Mr. Middlemiss which resulted

-30~

eT nee

in your Mr. Grasseck's dismissal. I

deny any pressure was applied. I have

in the past registered complaints about

Mr. Grasseck's conduct in the Court, both

with Mr. E.T.B. and Mr. Middlemiss and

I can document these complaints as I

did with them. I consider the accusa-

tions of Mr. E.T.B. a libel of my repu-

tation and integrity, both as an individ-

val and as a member of the judiciary, and

I will treat it as such. I reouest that

Mr. E.T.B. document his accusations and

that I be provided with a copy of that

material so that everyone will have a clear

and concise understanding of what he

claims occurred.

It is interesting to note, that

in Mr. E.T.B.'s zeal and fervor for in-

dependance from the judiciary and freedom

from judicial disfavor, it did not extend

to judicial favor when he was in charge

of your bureau in the District Court. If

he did, he would have told you of the

three occasions he personally asked me,

as Administrative Judge, to use my office

to intervene on behalf of Legal Aid to

the County Executive and members of the

Legislature to have your budget passed,

Or, when claiming he was short personnel,

asked if I as Administrative Judge would

allow the assignment of more cases to out-

side counsel and limit Legal Aid appear-

ances to one criminal part, which I agreed

to do. Incidentally, that did not dimin-

ish the applications by Legal Aid attor-

neys for dismissals on the grounds that

no trial parts were available. He would

~31<

‘a

have told you of many occasions is which

he asked for and received help to admin-

ister his office in this Court. It

appears that zeal and fervor, and American

ideals is a one way street reserved for

Mr. E.T.B., solely for the use of Mr.

E.T.B.

His accusation and innuendo and

general description of anarchy in the

courts is an insult to the integrity and

the dedication of all the-men and women

who practice law in the Legal Aid Society

in these courts. I see them in the Court

each day and have tried cases with them,

their dedication to the rights of their

clients has not diminished in any way.

I challenge Mr. E.T.B. to specify and

document one incident where judicial

pressure was brought upon a Legal Aid

attorney to dispose of a case in a manner

detrimental to his clients. This is pure

hogwash and will not stand the light of

scrutiny. You are indeed fortunate to

have been left with attorneys such as

the caliber of the people I speak about

who will continue the high ideals of the

Bar, notwithstanding Mr. E.T.B.'s unfound-

ed fears.

IT want also to state, for no other

reason but to show my utter distaste and

contempt for this type of attack, that on

two occasions earlier this year Mr. E.T.B.

told me he was being asked to go into

private practice by members of his family

and that he just might do that. This

alleged incident may have been the catalyst

-~32-

Ra ith crty 0.2 bane th cdi vs

‘

for him.

I have known Mr. Middlemiss for

close to fifteen years, as an attorney

and as a man. I found him to be a person

of high principle. and integrity who can-

not be pressured by anyone including Mr.

E.T.B. and for Mr. Boyle to make that

accusation in light of his performance

is untenable.

I respectfully request and would

appreciate it, if you would send me any

documentary proof that Mr. Boyle can

provide of these scurrilous attacks upon

my integrity and my position as a menber

of the judiciary.

Very truly yours,

/S/ Angelo Mauceri

Angelo Mauceri

Administrative Judge

AM:mk

cc: Edward T. Boyle, Esq.

Board of Directors

-33-

dele. AILS CNG Sed eine. &

PLAINTIFF'S EXHIBIT 4

LETTER DATED OCTOBER 12, 1972

DISTRICT COURT OF SUFFOLK COUNTY

BOX 1000

VETERANS MEMORIAL HIGHWAY

HAUPPAUGE, NEW YORK 11787

HON. ANGELO MAUCERI

Administrative Judge

EDWARD M. BARRY JOSEPH W. VAIL

Chief Clerk Deputy Chief Clerk

October 12, 1972

John F. Middlemiss, Jr., Esq.

Legal Aid Society of Suffolk County

260 W. Main Street

Bay Shore, N. Y. 11706

Dear Mr. Middlemiss:

One of your attorneys, Mr. Grasseck,

committed a very serious offense this morn-

ing while visiting a prisoner in the cell-

block area without the knowledge of the

security man. He gave to that prisoner a

fountain pen, which could be used as a

weapon. This is a serious breach of secur-

ity and I have issued an order today barring

Mr. Grasseck from the cellblock area.

I think that your office should ad-

vise this man of the seriousness of his

action so that he does not repeat it at

any other location.

—— 7,

Very truly yours,

/S/ Angelo Mauceri

Angelo Mauceri

Administrative Judge

AM: mk

cc: Frank Costello

Legal Aid - Hauppauge

-35-

DEFENDANTS’ EXHIBIT EE

DOCUMENTS SUPPLIED BY PLAINTIFF AT PERSONNEL

COMMITTEE MEETING

To whom it may concern; (handwritten)

I have been an attorney with the Legal

Aid Society since January, 1972. During

these past ten months I have personally

undergone many changes in my attitudes

toward criminal justice, my clients and

the judges of the First District Court.

Many of these changes, which I feel have

made me a better attorney, I attribute

directly to Thomas Boyle and Arthur Grasek.

For this reason as well as others which I

shall allude to in this letter I do not

feel Arthur Grasek's

I do not believe I have reached the

above conclusion by naively seeing only

one side of the issue and judging according-

ly. Rather, I attribute to myself a

measure of objectivity and in this light

I am aware of many of the criticisms

levelled at Mr. Grasek. A number of these

criticisms I feel are valid. Nevertheless,

I feel that each and every member of the

Legal Aid Society is open to criticism and

in several cases this criticism would be

much more severe than anything that can be

said against Arthur Grasek.

As an example of this I refer to

day in the sentencing part of the court.

I observed one of our attorneys appear for

-36-

ee eee

SP SR ES, ee ee ee

a

sentencing with a client with whom he had

not spoken and a legal aid file which ap-

parently had not been read beforehand.

When asked by the judge whether he wished

to be heard before sentencing the attorney

declined the offer and the judge proceeded

to sentence “he defendant solely on the

basis of the probation report which is

furnished prior to sentencing. Perhaps,

the result in this case would have been

no different had it been handled in a more

thorough and proper manner but I do think

that our clients are entitled to a maximum

effort on our part.

The reliance upon other parties,

usually the judge, to perform functions

which are within the scope of proper

defense work is what I consider to be the

key malfunction of the Legal Aid Society.

The judge is at best a neutral arbiter

who must by necessity concern himself with

many administrative and judicial functions

and cannot be solely concerned with the

defendant. That job is left for the defen-

dant's attorney and when he begins to be

concerned about the judge's administrative

problems, e.g. seeing that the part of the

court he is working runs quickly and smoothly,

he loses site of the only duty he must

perform in court; the protection of the

legal rights of his client. The Legal Aid

Attorney is not another arm of the court

but rather he must be a separate independent

entity.

The best example I can give for what

oFta

I mean is myself. When I first began with

legal aid I made a special effort to get

along well with all the court the judges.

Although this is my natural inclination

anyway I also felt that this was the best

method to aid my clients. This approach

has proved valid to a great extent but

only when one realizes its limits. Upon

reflection I fear that there were numerous

instances where I was rushed to make a

decision which, given my limited criminal

experience I could not make hurriedly.

Nevertheless I did make these decisions

to the detriment of my client. Arthur

Grasek, as a friend and associate, shared

with me his views as to thepressures con-

fronted by each legal aid attorney everyday,

and in part is responsible for my realizing

that to do a good job these pressures must

be resisted,

Arthur Grasek was beyond any doubt the

most industrious and hard-working attorney

employed by legal aid. According to the

people who terminated his employment he

was also a superior trial attorney. It

seems quite exceptional to me to release

someone with these credentials.

It is my opinion that men like Arthur

Grasek are imperative to the proper func-

tioning of the legal aid society and that

unless we intend the Society to stand as

a mere token or symbol of a Defense Attor-

ney we cannot afford to let such men leave.

ae

If a meeting is held where views can

be aired I would appreciate being given an

opportunity to speak.

Very truly yours,

/S/ George Grun

-39-

SO eT BS TT Rae Te eS SETS ee

720.” GS es

Defendant's Exhibit EE

Mr. Graseck as a legal aid seemed very much

concerned in me & in my case. He wasn't

like most legal aids who treat it as just

another case. He acted as though he was

really there to help me pull through the

case & stuck by me as you would find in

real lawyers & most likely not a legal aid.

Sincerely,

/S/Vincent McElhiney

-40-

Defendants’ Exhibit EE

11-12-72

MRS. C. HALL

29 RALPH AVE

E. BRENTWOOD - L.I.

N.Y. 11717 (handwritten)

to Whom it May Concern

In reference of Att. at L. A. Graseck

who has taken the oath of honesty and

fairness and to defend innocent people

and the underprivledge.

Att. A Graseck was only doing what he saw.

The gentleman only went by the good book

and was not breaking any law that we could

see. It was things that he brought out

in opening.

I remain

/S/ Mrs. C. Hall

i

Defendants’ Exhibit EE

(handwritten)

Centre Island

Oyster Bay, New York

November 12, 1972

Dear Sirs:

As a summer intern with the Criminal

Division of the Legal Aid Society in 1972,

working in the First District Court in

Hauppauge, I had ample opportunity to

observe Arthur ee and indeed

to work directly with him on a number of

matters. He is, in my opinion, one of the

most dedicated and hardworking lawyers

around. He was impressive to watch and

interesting to work with. He fights very

hard for his clients and, I honestly

believe, he serves them well. Mr. Graseck

is extremely thorough and conscientious in

preparing his cases and I do not see how

any defendant could suffer because of having

Mr. Graseck as his attorney. He is an able

and concerned advocate and lawyer.

Very truly yours,

/S/Patience Outerbridge

=4 2

Defendants’ Exhibit EE

(handwritten)

Board of Legal Aid,

In my contact with legal aid, I have

had several lawyers who have represented

myself and my son. Only Mr. Graseck has

really done his job as a lawyer. This I

feel is what they are for, to represent

the people, poor people, who can't afford

a private lawyer.

Mr. Graseck is an excellent lawyer.

Suffolk County should try and get rid of

such judges not Mr. Graseck.

Witness: /S/ Mrs. Inez Diamond

Helen Ackley

Victor Torres.

ail Fo

Defendants’ Exhibit EE

(handwritten)

Daniel Rathjen

111 W. lst St.

Ronkonkoma, N. Y.

Being represented by Mr. Grazeck left

me in complete trust of the Judicial

system. To date Mr. Grazeck has been a

lawyer I will always look up to.

/S/ Daniel Rathjen

11/12/72

witness:

Sue Wasserman

Charles Powell

~44-

Defendants’ Exhibit EE

(handwritten)

Atterney Grassick is a very good lawer

I would like to see him get his job back.

Mr. Grassick defends all People equally.

He treats all People equally.

/S/ Rosetta Wheat

11 Garden St

Bay Shore N Y

a

el ee

«

' Defendants' Exhibit

(handwritten)

to whom it may concern

I PhillipBames do feel that I was

defended by attorneyAerathe Graseck to

the best that he could and I am very happy

with the court decree in my case. I do

feel that he should be back to help other

people as he help me.

/S/ Phillip Barnes

(handwritten)

To whom it may concern

I had Mr. Graseck for my case. I know

he defended me, to the best of his ability.

/S/ Austin Piazza

-46-

Defendants’ Exhibit EE

(handwritten)

4/12/72

I testify that I spoke to a former

client of Arthur Graseck. He asked not

to have nis name used because he has a

case coming up that he is afraid will be

affected by any action he takes or state-

ments he makes. He did state that he felt

Mr. Graseck did a good job for him.

/S/ Sue Wasserman

Witness:

Helen Ackley

a

Defendants’ Exhibit EE

(handwritten)

To who it may concern; .

I have been very satisfied with the

help and guidance that I received when I

had Mr. Gresheck representing me as my

attorney on_ more than one occasion in

Happague court.

I cannot undersand why he has been

fired when he was doing a really great

service to the people other than myself that

could not afford their own attorney and

the way he went out of his way to help and

understant them and their problems.

Sincerely yours,

/S/Glen Toth

~48-

Defendants’ Exhibit EE

HOME IMPROVEMENTS By (printed)

TAYLOR CONST. CO.

1334 Washington Ave.

West Islip, N. Y. 11795

Phone: JU7-5713

(handwritten)

To Whom it may concern:

If Mr. Grassic has indeed been

fired, the Legal Aid Society has lost the

only member who I met personally) who cared

enough to try to help the poor people of

this county get the justice they deserve.

I feel a great injustice has been

done to this man. He helped my son when

we were misled by others. He feels a true

sense of responsibility to his people and

defends them to the best of his ability.

It is rare that we find this honesty and

dedication in our system today. I feel

only gratitute to this man. Anything I

can do further to help him, I will gladly

do.

Sincerely,

/S/Mrs. Judith Laznowsky

1334 Washington Ave

West Islip, N.Y.

-49-

Defendants' Exhibit EE

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exeu3 SAeEMeT PTy-Tebey Ysoq Sux JO SUO ST SY ReYR AOR ONIR

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pueqsny Aw ‘sauor STTTTmM *2W pue seuor seT STQQeEW *ASY I

: juzesuos Aeu wo

ZL6T “ZT Aew sd —

-50-

Defendants’ Exhibit EE

Arther Graseck who represented me on

March 1972 on the charges of criminal poss.

of hupo ins. in my ipinunion he helped

far more than any previecs lawyers ive

ever had. He just seems to care about

the rights of the people, junkies etc.

he didn't act as though I was just

another case, he seemed to take a interest

especially for my rights as I knew hard-

ly anything, about the law. Ive told

Mr. Grasack of many times of police

bruttally and he wanted to help end this

kind of thing that goes on noticed but

I was scared of repriseles from the police.

All of the above is true

and I hope justise keeps,

to rights of the people

and especially Mr. Grossack

who "i" say rellaely gives

a damn and cares, not just

for the rich but the less

unfornate, who cant help

to relly on the legal aid

there should Many more like

him. Good luck PEACE for all

/S/ Ronald Thomas Hyne

Nov. 12, 1972

Witness:

John C. Bouse

Nov. 12-1972

51-

Defendants’ Exhibit EE

(handwritten)

To Whom it May Concern

I think Mr. Graseck is or was a very good

and intelligence lawyer. And I was very

satisfied with him and his concern with

my sons case. He did a very good job I

think and any time I would need a lawyer

I will not heistate to call on him at

all. |

/S/ Alice Plowden

=$2—

Defendants’ Exhibit EE

(handwritten)

To: Board of Directors

Suffolk County Legal Aid Society

During my tenure with the Suffolk

County Legal Aid Society I have grown to

like and respect Arthur Grascek. I have

found Arthur to be a hardworking, per-

servering individual dedicated to the

service of his client. He has an imagi-

native and innovative approach to the

defense of a client. While some criticize

the defense tactics of Mr. Grascek, none

criticize his singlemindedness of purpose

or unyielding dedication. These same

tactics, criticized by some, are appre-

ciated and welcomed. by those who believe

that a defendant is entitled to the best

possible defense. Arthur Grascek always

does his personal best for a client. ‘

The fact that Arthur Grascek is

able and competent in the defense of a

client has never been disputed. Arthur

is knowledgeable in the law. He trans-

mitted much of this to me in our brief

association together. Arthur is also

knowledgeable about his clients. He is

able to establish a good rapport with

the client; one that aids the preparation

and defense of any case. What may be

more important is that the clients be-

lieved in Arthur. To the poor and indigent

-53-

- 1 ee

é — a's

stratas of our society it is vital that

their lawyer cares about them. These

people are bandied about by other

institutions in the community. They find

in Legal Aid, an institution ready to

service their needs. No patronization,

no favor, no snobbery. They come to

Legal Aid in need of the skill and know-

ledge that can make the difference be-

tween freedom and incarceration. Men

like Arthur Grascek can be the difference.

I am informed that Arthur Grascek is

being faulted because he gave a pen to a

prisoner in the lock-up facility. This

is an indiscretion that has been commit-

ted by several members of the Society.

While not demonstrable of the best judg-

ment, it was always done to further the

defense of the client.

I must conclude by saying that the

loss of Arthur Grascek"s dilities and

influences has been felt by attorneys and

clients alike. I believe that Arthur

Grascek can be a productive and valuable

member of any organization to which he

directs his energies.

/S/ David Besso