Petition — Harris v. Bermudez

IN THE FEB 4 80

Supreme Court of the Unitedudisbow sp, crce

October Term, 1980

Mur.

No. 79 - 1] 24 3

WARDEN, Greenhaven Correctional Facility, SUPER-

INTENDENT, Auburn Correctional Facility, SUPER-

INTENDENT, Greenhaven Correctional Facility,

Petitioners,

against

FERNANDO BERMUDEZ, JOSE LAUREANO

and JOSE BONILLA,

Respondents.

ane ~~ (ee

eee

——— — —-—— ee

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Mario MeERoua

District Attorney

Bronx County

215 Kast 161 Street

Bronx, New York 10451

Attorney for Petitioners

(212) 590-2060

Awan D. Marrus

Cuarues L. Bacu, Jr.

Assistant District Attorneys

Of Counsel

TABLE OF CONTENTS

PAGE

i cscecieleseccsccsseeans ; 2

J urisdiction cola gidecasnssacesesosecsseeses 2

Question Presented << ee ) DS 2

Constitutional Provisions Involved .........0......0....0000.... 2

I I I ely ossccacccsccssssescssscscescseseeees 3

Reasons for Granting the Writ od 6

og 7

Appendix A—Order of the United States Court of

Appeals for the Second Cireuit 0000000000000... Ta

Appendix B—Opinion of the United States District

Court for the Southern District of New York... 3a

CITATIONS

Holloway v. Arkansas, 435 U.S. 475 oo... | 6

Kaplan v. Bombard, 573 F.2d 708 .c.ccccccccssece «6

United States v. Eaglin, 571 F.2d 1069 0, 7

United States v. La Riche, 549 F.2d 1088, cert. demed,

Nee ccccsvesscesscsesceseeseess 7

United States v. Lawriw, 568 F.2d 98 o.oo. 7

United States v. Waldman, 579 F.2d 649 00... 7

Zuck v. State of Alabama, 588 F.2d 486 000. 7

IN THE

Supreme Court of the United States

October Term, 1980

No.

—_—_——ell-— eee

Warpven, Greenhaven Correctional Facility, SupertnTEND-

ENT, Auburn Correctional Facility, SupERINTENDENT, Green-

haven Correctional Facility,

Petitioners,

against

FERNANDO BEerMUDEZ, JosE LavrREANO and Jose Bonrua,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioners, Warden of Greenhaven Correctional

Facility et al., respectfully pray that a writ of certiorari is-

sue to review ti.e judgment of the United States Court of

Appeals for the Second Circuit entered in this proceeding

on November 26, 1979.

Opinion Below

The order of the Court of Appeals affirming, without

opinion, the judgment of the District Court for the South-

ern District of New York appears in the Appendix hereto.

The opinion of the District Court, not yet reported, also

appears in the Appendix.

Jurisdiction

The judgment of the Court of Appeals for the Second

Circuit was entered on November 26, 1979. This petition

was filed within 90 days of that date. This Court’s juris-

diction is invoked under 28 U.S.C. § 1254(1).

Question Presented

Whether three defendants who have jointly retained one

attorney to represent them in a criminal trial can consent

to such joint representation in response to an inquiry by

the trial judge, thereby waiving their right to subsequently

challenge the joint representation as ineffective under the

Sixth and Fourteenth Amendments to the United States

Constitution.

Constitutional Provisions Involved

United States Constitution, Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have

3

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 con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.

United States Constitution, Fourteenth Amendment,

Section One:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

Statement of the Case

Respondents were indicted by the Grand Jury of Bronx

County in February, 1972, for, mter alia, acting in concert

to commit intentional murder. Respondents jointly re-

tained an attorney, Stanley Siegel, Esq., and in January,

1974, the case was moved to trial. Prior to jury selection,

an untranscribed discussion was had among the trial judge,

the defense attorney and the prosecutor.

According to the sworn statements of the prosecutor

and the trial judge which were submitted to the District

Court in response to respondents’ petitions for federal

writs of habeas corpus, the judge asked defense counsel

whether he had discerned a potential conflict of interest

amongst his clients. Mr. Siegel assured the court that no

4

conflict had arisen, or would likely arise during the trial.

The trial judge nevertheless directed defense counsel to ad-

vise his clients of the court’s concern that a conflict of inter-

est might arise during the trial and ask his clients if they

wanted the opportunity to retain separate counsel or re-

quest that separate counsel be appointed for them.

In a second affidavit submitted to the District Court, the

trial judge asserted that he subsequently took the bench

and asked defense counsel, in the presence of respondents,

whether he had complied with the court’s directive. After

counsel replied that he had advised his clients of the court’s

concern, all three respondents were separately questioned

by the trial judge, and they informed the court of their

desire to proceed to trial with joint counsel (A. 10-11, 26-

27).*

During the trial, eight witnesses testified for the prose-

cution, and six eyewitnesses described the beating which

respondents inflicted upon 16-year-old William Travieso.

All three respondents were observed carrying knives, and

punching and kicking their victim, whose death was caused

by a stab wound to his chest. Respondent Bonilla, the sole

witness for the defense, testified that the decedent started

the fight and that neither he nor his two cohorts used knives

during the melee. Respondents were convicted of inten-

tional murder and criminal possession of a weapon after

their jury trial in state court (T. 27-43, 97-102, 143-47, 162-

63, 210-11, 232-33, 250-51, 298-304).

* Numbers prefaced by the letter “A.” refer to the Joint Appendix

submitted by petitioners to the Second Circuit Court of Appe?'s ; those

prefaced “T.” refer to the transcript of the state trial conducted in

New York State Supreme Court, Bronx County, from January 24 to

February 5, 1974.

5

The judgments of conviction of respondents Laureano

and Bermudez were affirmed without opinion by the Appel-

late Division of the Supreme Court of the State of New

York, First Department, on December 3, 1974. The judg-

ment of respondent Bonilla’s conviction was affirmed by

that court on February 15, 1977. Leave to appeal the judg-

ments of conviction of Laureano and Bermudez to the New

York Court of Appeals was denied by former Chief Judge

Charles Breitel on January 22, 1975, while Bonilla’s appli-

cation for leave to appeal to that Court was denied by Chief

Judge Breitel on April 14, 1977.

Respondents thereafter petitioned for writs of habeas

corpus in the Federal District Court for the Southern Dis-

trict of New York. In support of their petition, respond-

ents submitted the affidavit of their trial attorney who as-

serted that, in an untranscribed conference, he requested

the trial judge to appoint separate counsel before trial

commenced and the judge refused his request. In separate

affidavits submitted to the District Court, the trial judge

and prosecutor controverted that allegation and provided

the account of the inquiry described above.

|

Notwithstanding the existence of these disputed facts

never before presented to the state courts, the District

Court ruled that respondents had exhausted state remedies.

The District Court granted respondents’ petitions for writs

of habeas corpus without ordering a hearing on the dis-

puted facts. On November 26, 1979, this order was affirmed

without opinion by the Court of Appeals for the Second

Circuit.

6

Reasons for Granting the Writ

This Court should grant the instant petition to resolve

several important questions which are constantly recurring

in the area of joint representation, and to correct a Court

of Appeals decision which is clearly erroneous. The proper

role of the judge presiding over a criminal trial of two or

more co-defendants who have retained joint counsel, has

not been defined by this Court. See, Holloway v. Arkansas,

435 U.S. 475, 483-84 (1978). Yet, this Court has clearly

stated that joint representation is not per se violative of

the criminal defendant’s right to effective representation

of counsel. Holloway, supra at 482. Thus, assertion of the

right to retain a particular attorney and have him jointly

represent two or more defendants is constitutionally per-

missible. Kaplan v. Bombard, 573 F.2d 708, 714-15 (2d Cir.

1978).

In the instant case, the trial judge affirmed that he made

an extensive inquiry of defense counsel concerning the

potential for conflicting interests to arise amongst his

clients during the trial and that each defendant personally

indicated he wanted to continue to be jointly represented by

this retained attorney. Further, the defense attorney as-

sured the judge that he had advised his clients of the pos-

sibilities that conflicts of interest would arise at trial. By

disregarding this evidence, and granting the petitions for

writs of habeas corpus, the Court of Appeals and District

Court have ruled, in effect, that respondents could not con-

sent to joint representation prior to trial. This ruling con-

flicts with Holloway v. Arkansas, supra, with previous deci-

sions of the Second Circuit Court of Appeals and with those

B67 eet gta ti

\ Veer C4

.

snow he er

7

of other circuit courts. Zuck v. State of Alabama, 588 F.2d

436, 440 (5th Cir. 1979); United States v. Waldman, 579

F.2d 649, 652 (1st Cir. 1978) ; Kaplan v. Bombard, 573 F.2d

708, 714-15 (2d Cir. 1978) ; United States v. Eaglin, 571 F.2d

1069, 1086 (9th Cir. 1977); United States v. Lawriw, 568

F.2d 98, 104 (8th Cir. 1977) ; United States v. LaRiche, 549

F.2d 1088 (6th Cir. 1977), cert. denied, 430 U.S. 987 (1977).

These cases establish that a defendant who consents to joint

representation forever waives his right to argue that such

representation was conflict-ridden and therefore ineffective.

Petitioners urge this Court to definitively rule on this

matter of utmost importance to both federal and state

judges who preside over criminal trials where multiple

defendants have chosen to be represented by one retained

attorney.

Conclusion

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Second

Circuit.

Respectfully submitted,

Mario MEROLA

District Attorney

Bronx County

215 Kast 161 Street

Bronx, New York 10451

Attorney for Petitioners

(212) 590-2060

Aan D. Marrus

Cuar.es L. Bacu, JR.

Assistant District Attorneys

Of Counsel

January, 1980

APPENDIX A

Order of the United States Court of Appeals

for the Second Circuit

Order of the United States Court of Appeals

for the Second Circuit

UNITED STATES COURT OF APPEALS

Seconp Crrcuit

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at

the United States Court House, in the City of

New York, on the 26th day of November, one

thousand nine hundred and seventy-nine.

Present:

Hon. Wituiam H. Mutuican

Hon. Tuomas J. Meskruu

Hon. Amartya L. Kearse

Circuit Judges.

79-2121, 79-2122, 79-2123

—_—_—eEe- ee

Unirep States or AMERICA ex rel, FERNANDO BERMUDEZ,

Petitioner-A ppellee,

against

Leon J, Vincent, Warden, Greenhaven Correctional

Facility, Stormville, New York,

Respondent-Appellant.

Jose LAvUREANO,

Petitioner-Appellee,

against

SuPERINTENDENT, Auburn Correctional Facility and

DEPARTMENT OF CORRECTIONAL SERVICES,

Respondents-Appellants.

JosE Bont,

Petitioner-A ppellee,

against

Daviv Harris, Superintendent of Greenhaven

Correctional Facility,

Respondent-A ppellant.

one OO

2a

Order of the United States Court of Appeals

for the Second Circuit

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the South-

ern District of New York, and was argued by counsel.

On ConsmeErRATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the order of said District Court

be and it hereby is affirmed on the opinion below of the Hon.

Morris E. Lasker, 77 Civ. 2048, 78 Civ. 1023, 79 Civ. 1265

(S.D.N.Y. June 27, 1979).

/s/ Wriuam H. Mo.wucan

William H. Mulligan

/s/ Tuomas J. Meskrmn

Thomas J. Meskill

/s/ Amatya L. Kearse

Amalya L. Kearse

APPENDIX B

Opinion of the United States District Court

for the Southern District of New York

3a

Opinion of the United States District Court

for the Southern District of New York

UNITED STATES DISTRICT COURT

SovutHerN District or New York

— ee

77 Civ. 2048 (MEL)

Unitep States or America ex rel. FerNanpo BERMUDEZz,

Petitioner,

against

Leon J. Vincent, Warden, Green Haven Correctional

Facility, Stormville, New York,

Respondent.

78 Civ. 1023 (MEL)

Jose LauREANO,

Petitioner,

against

SUPERINTENDENT, Auburn Correctional Facility and

DepaRTMENT OF CORRECTIONAL SERVICES,

Respondents.

79 Civ. 1265 (MEL)

JosE Bont.a,

Petitioner,

against

Davin Harris, Superintendent, Greenhaven

Correctional Facility,

Respondent.

4a

Opinion of the District Court

Appearances:

Prisoners’ LecaL Services or New York

100 Church Street, 18th Floor

New York, New York 10007

Attorneys for Petitioners Bermupgz and LavuREANO

Of Counsel: AMANDA PortTerRFIELD, Esq.

Daniet J. Sternsock, Esq.

Tue Lecau Am Society

15 Park Row—18th Floor

New York, New York 10038

Attorney for Petitioner BontLua

Of Counsel: Witu1am’ BE. Heuierstern, Esq.

Diana Bupzanoskx1, Esq.

Rosert Asrams, Esq.

Attorney General of the State of New York

Two World Trade Center

New York, New York 10047

Attorney for Respondents

Of Counsel: CLEMENT H. Berne, Esq.

Gerry K. Fernserc, Esq.

Lasker, D.J.

On March 12, 1974, Fernando Bermudez, Jose Laureano

and Jose Bonilla were convicted in state court of acting in

concert to murder William Travieso. No single defendant

was charged with having been the actual killer. Their con-

victions were affirmed without opinion by the Appellate Di-

vision, and leave to appeal to the Court of -Appeals was

denied. All three now petition for writs of habeas corpus

on the ground that their joint representation at trial

denied them their Sixth Amendment right to effective as-

sistance of counsel.

¢

da

Opinion of the District Court

The petitions of Fernando Bermudez and Jose Laure-

ano were referred for recommendation to Magistrate Ger-

shon. Since the issues raised in Bonilla’s petition, filed

subsequently, are identical to those raised in the other two,

the Magistrate’s Report will be deemed to apply to it as

well.

In a 35 page opinion, the Magistrate recommends that

the writs be granted. Because we adopt her findings and

conclusion, we make no attempt to duplicate her exhaustive

and well-reasoned analysis but deal here only with the ob-

jections to her Report made by the State.

Exhaustion of State Court Remedies

It is not disputed that the same claim raised here was

presented to the state courts. However, additional facts

have been introduced as part of the habeas proceedings

which the State contends materially alter the petitioners’

argument and require that the cases be sent back to the

state courts to afford those courts a ‘‘fair opportunity’’ to

review the case in its allegedly new posture.

In their state court appeals no claim was made—at least

by Bermudez or Laureano—that defense counsel had ac-

tually raised the issue of conflict of interest with the trial

court. Instead, petitioners’ claim was based solely on the

trial judge’s failure to exercise his affirmative obligation to

inquire into the possibility of a conflict. However, in con-

nection with the habeas proceedings in this court, petition-

ers have introduced an affidavit from their trial counsel

who states that, in an off-the-record discussion, he advised

the trial judge that a conflict of interest existed between his

6a

Opinion of the District Court

clients and requested that separate counsel be appointed.

The affidavit further states that the judge dismissed coun-

sel’s request as a ‘‘stalling tactic’’. (Affidavit of Stanley

Siegel, April 27, 1977, 6) The State also supplemented its

papers before this court by an affidavit from the trial judge

who denies that the conversation described by defense coun-

sel took place and states that he instructed counsel, in an

unrecorded conversation, to ask his clients whether they

wished to obtain separate counsel but was advised by coun-

sel that they did not. (Affidavit of the Honorable William

Kapelman, May 25, 1977, [ 4-7) Somewhat surprisingly,

following the issuance of the Magistrate’s Report, the State

filed an additional affidavit in which the trial judge states

that his conversation with defense counsel on the question

of conflict of interest took place in the presence of petition-

ers and that, when questioned directly by the judge, all

three men agreed that they wished to proceed with joint

counsel. (Affidavit of April 23, 1979, 9 5)

The Magistrate concluded that the additional informa-

tion offered in support of the petitioners’ position did not

‘‘critically affect’’ the claim presented to the state courts.

Moreover, she found that it would be futile to remand the

case to the state since the appeal of Jose Bonilla, filed after

those of the other two, referred to the conversation attested

to by defense counsel, and his conviction was nevertheless

affirmed. However, the State relies on Holloway v. Arkan-

sas, 435 U.S. 475 (1978), to argue that the new facts sig-

nificantly alter petitioner’s [sic] position. In Holloway, the

Supreme Court indicated that the degree of prejudice nec-

essary to be established on appeal would vary depending on

Ta

Opinion of the District Court

whether or not defense counsel had raised the issue of

prejudice at trial, and held that, in a situation in which

counsel repeatedly moved on the record for appointment

of separate counsel, prejudice would be presumed.

Despite the State’s contentions, we are not persuaded

that there is a significant likelihood that the new evidence

in the record would alter the disposition of the matter by

the state courts. Defense counsel’s representations are

considerably undercut by the assertion of the trial judge

also presented for the first time here that he himself rather

than defense counsel raised the possibility of conflict with

petitioners. Moreover, even if taken at full value, it is

doubtful whether counsel’s brief, off-the-record converga-

tion brings this case within the ambit of Molloway in which

defendants argued forcefully on at least three occasions

that they should be granted separate counsel.’ The con-

cept of futility must be interpreted to encompass notions

of economy and fairness. Thus unless new material creates

at least a moderate likelihood of a different result, it is

1. Several other factors cast doubt on the likelihood that the

state courts would reverse their position. One factor is the already

heavy burden of proof met by the prosecution on appeal. Before the

Appellate Division petitioners argued, and the State conceded, that

the trial judge had not inquired into the possibility of conflict. This

circumstance placed the burden on the prosecution of proving an

absence of prejudice from joint representation, United States v. De-

Berry, 487 F.2d 448, 453-54 n. 6 (2d Cir. 1973), a burden which the

Appellate Division, which affirmed without opinion, apparently found

was easily met. Thus the possibility of a different result is minimized

by this prior conclusion that petitioners suffered no prejudice at trial.

Finally, it is of some significance that Bonilla did refer in passing in

his appellate proceedings to the conversation described by his trial

lawyer. Although we agree with the State that the issue was placed

before the Appellate Division too casually for us to conclude that

that court did in fact rely on the proposition, this factor at least raises

a question as to whether the state courts have not already passed on

the significance of the new evidence.

8a

Opinion of the District Court

futile to send an action back to the state courts. Here, the

likelihood of a different outcome is simply too speculative

to justify the duplication of effort and the frustration to the

parties which a remand to the state court would entail.

Prejudice

The State contends that, far from being prejudiced by

joint representation, petitioners were assured ‘‘a unified

defense and thereby avoided incriminating each other.’’

(Objections to the Magistrate’s Report, p. 20) However,

as the Magistrate pointed out, on the facts of this case a

unified defense was no defense at all. It is undisputed that

all three defendants were at the scene of the crime and that

the only other people present were relatives of the deceased

who had come to his reseue. In the face of this overwhelm-

ing evidence that one of the three defendants was responsi-

ble for the murder, to argue, as defense counsel did at trial,

that all three men were innocent was indeed a hollow de-

fense which inevitably redounded to the disadvantage of at

least two, if not all three, defendants. See the Magistrate’s

Report, p. 23.

However, while the evidence rendered a unified defense

extremely implausible, it left open the possibility that one

or more of the defendants could successfully dissociate

himself from the murder itself. The dead man was stabbed

only once. Moreover, the testimony at trial varied as to the

involvement of each defendant in the fight and as to which

defendant—or defendants—was seen straddling Travieso

with a knife. (Tr. 100, 106-07, 115-6, 143, 161) Although

the State argues that ‘‘possible differing degrees of partic-

ipation were without legal significance’? (Objections,

p. 20), this argument ignores the burden on the prose-

9a

Opinion of the District Court

cution of establishing that all three defendants possessed

the requisite intent to aid in the commission of a murder

and that, by dissociating himself from the killing, or by

shifting the blame onto another, a defendant might have

convinced the jury that he lacked such intent. Clearly,

such a tactic was impossible so long as all three defend-

ants were represented by the same attorney.’

Finally, we agree with the Magistrate’s conclusion

that the prejudice from joint representation extended to

the plea bargaining stage.* Although petitioners were

offered an ‘‘all or nothing’’ plea package by the prosecu-

tion, there is a significant likelihood that here, where the

State lacked conclusive evidence as to which of the three

defendants actually committed the stabbing, an independ-

ent lawyer might have worked out a special ‘‘deal’’ for

his client in exchange for an agreement to testify. See

Holloway v. Arkansas, supra, 435 U.S. at 490.

The Magistrate’s Report is affirmed and incorporated

in this decision. The petitions of Fernando Bermudez,

Jose Laureano and Jose Bonilla are granted, and their

convictions will be set aside unless they are granted a new

trial within ninety days.

It is so ordered.

Morris E.. Lasker

U.S.D.J.

Dated: New York, New York

June 27, 1979

2. The State also contends that, in light of the new evidence con-

cerning the trial judge’s investigation into the possibility of a conflict

of interest, the burden is on petitioners to establish actual prejudice

rather than on the prosecution, as the Magistrate found, to prove an

absence of prejudice. Since we agree with the Magistrate that peti-

tioners have in any event established that prejudice did exist, it is

unnecessary to decide this question.

3. This contention is raised only by Fernando Bermudez.

‘a eOwororere_e