# Opposition Brief — Wooden v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1973
- **Citation:** 410 U.S. 987

## Text

IN THE

Supreme Court of the United States

October Term 1972

No. 72-6069

WILLIAM WOODEN,
Petitioner,
against
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent.

BRIEF IN OPPOSITION TO A PETITION FOR A
WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF THE STATE OF NEW YORK

WILLIAM CAHN
District Attorney, Nassau County
Attorney for Respondent

County Court House «>
Mineola, N. Y. hat
AY
Henry P. DEVINE “”
Assistant District Attorney oO
Counsel “
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EM A a CP Pe PG Cc EP IBAT AE abe SEARS

TABLE OF CONTENTS

PAGE
(pinions BE cc head eRaabewaduneseneves 1
Jurisdiction... 6... e eee eee eee eee rene eee eens 2
Constitutional Provisions Involved — United States
REED near onccccwccsesccsvesscccsscesces 2
EE cccnackb denn dneeeeneneccenes o« 2
EE ae cckccyetidedsvanevetxeseses 2
EE ee ee 3
The Confession Hearing ...............-eeeeeeeee 3
The Voir SASSER ey ee ane ey eter 5)
Vehedd HACK Re NON eR eSeEKNAKe ene. 19
Johnny Banks’ Testimony ................--0005: 20

The Ladies of 219 Stewart Avenue, Hempstead .... 23

checks hab ee denen er esRt ere eses 37
ED vnc csivsebeekeeseeresesoes 39
ED ccacevecckedeendescenavadsseees 40
ON aio cie sb ckeed ccetoeenetneennds 40
i cc vnceveneeneeeveeneeeaucere 42
EE as ec denbe hed tedsWeekeae ebakence ees 46

Aprpenpix A:

Decision-Order of Spitzer, C. J., on Huntley-
Miranda Hearing, Entered February 16, 1970 .. la

DAES bie WCE ee Re AT ee i

il

Table of Cases

GEE. kicvdewsbenwk gxeuseuensnceaneeceunns canal
Arrington v. Maxwell [6th Cir. 1969] 409 F. 2d 849,

ee, Gt: GI TE. GD 5 oss iv ve sce vdesnararccs 29
California v. Green, 399 U.S. 149 ................. 46
Com. v. Frangillo [1971] (Mass.) 268 N.E. 2d 341... — 99 |
Com. v. Hoss [1971] 445 Pa. 98, 283 A. 2d 58 ..... 29
Coughlin v. United States [9th Cir. 1968] 391 F. 2d

Beis MONK: GU, Se Ee UO ov on cn ees cccasscddeas 29
Dutton v. Evans, 400 U.S. 74 .......... cece ec eeee 46 CO
Hancock v. White [1st Cir. 1967] 378 F.2d 479... 9
Hopt v. Utah [1884] 110 U.S. 574 ...........0.0.. 1
Johnson v. Zerbst [1938] 304 U.S. 458 ............ 30
Kirby v. Illinois (406 U.S. 682) .................. 33
Miranda v. Arizona, 384 U.S. 436 ............... 30, 32, 33
People v. Arthur [1968] 22 N.Y. 2d 325 ........... 32
People v. Bai [1959] 7 N.Y. 2d 152 ................ 45
People v. Bennett [1972] 29 N.Y. 2d 462 ........... 36, 37
People v. Biasi [1960] 7 N.Y. 2d 544 .............. 28
People v. Bodie [1965] 16 N.Y. 2d 275 ........... 29

People v. Bostic [3d Dept. 1970] 34 App. Div. 2d 597 =. 36
People v. Brabson [1961] 9 N.Y. 2d 173 ........... 36

ne

iii
PAGE
People v. Bretagna [1949] 298 N.Y. 323, cert. den.

996 U.S. 919 .... cece ceeeee cece eee eetteeennees 31
People v. Brown [1960] 7 N.Y. 2d 359 .........+--- 36
People v. Davis [2d Dept. 1964] 21 App. Div. 2d 681 45
People v. Di Biasi [1960] 7 N.Y. 2d 544 .........-- 32, 33
People v. Donovan [1963] 13 N.Y. 2d 148 .......... 32
People v. Failla [1964] 14 N.Y. 2d 178 ......-.---- 32
People v. Gordon [2d Dept. 1959] 8 App. Div. 2d

935, aff’d 7 N.Y. 2d 742 ....---eeeeee eee eee eee: 45
People ex rel. Acritelli v. Grout [1st Dept. 1903] 87

App. Div. 193, aff’d 2k eee er 36
People v. Gunner [1965] 15 N.Y. 2d 226 .......... 28, 32
People v. Higgins [1965] 16 oe | Peererreee 36
People v. Kaye [1969] 25 a me | Seer 32
People v. La Monica [1st Dept. 1970] 33 App. Div.

Od 1004... cccsccccccccccececccccrccecscscees 36
People v. Lane [1961] 10 N.Y. ere 31
People v. Lopez [1971] 28 N.Y. SE kncsncegencae 29, 41
People v. MeKie [1969] 25 N.Y. 2d OE Raccseeweews 32
People v. Meyer [1962] i1 N.Y. 2d Be scnsauceus 28, 33
People v. Miles [1969] 23 N.Y. BEE bkckevceuenens 32
People v. Noble [1961] 9 N.Y. 2d 571 .........--+-- 32
People v. Paulin [1965] 20 N.Y. Dd 445 ......005.- 32
People v. Pitman [1st Dept. 1966] 25 App. Div. 2d

637; mod, 18 N.Y. 2d 919 2.2... eee ee eee eee eee 36, 49
People v. Price [1933] 262 N.Y. 410 ..........5.5 36, 45

People v. Randazzo [1909] 194 N.Y. 147 ........-- 28

iv

PAGE
People v. R. N. [1969] 23 N.Y. 2d 963 ............. 32
People v. Robles [1970] 27 N.Y. 2d 155 ..........,, 32

People v. Sans Souci [1st Dept. 1965], 23 App. Diy.
ee Seen er ee Fae OE OOD oo cbs eevee. 36
People v. Seaton [1967] 19 N.Y. 2d 404 .........., 30
People v. Stephen S. B. [1969] 23 N.Y. 2d 611 .... 31, 32
People v. Stockford [1969] 24 N.Y. 2d 146 ......, 99
People v. Tomaseili [1969] 7 N.Y. 2d 300 ........ oe
People v. Vella [1967] 21 N.Y. 2d 249 ............, 32
People v. Waterman [1961] 9 N.Y. 2d 561 ........ 33

State v. McKnight [1968] 52 N.J. 35, (243 A 2d 240) 30,31
United States v. Bentvena [2d Cir. 1963] 319 F.2d
acc aes eek ee wa hak badme creas eee hae es 45
NG cca ead deen audne herd ea (Lhe a Ea Tee ae eer uris 29

United States v. DeLoy [5th Cir. 1970] 421 F.2d 900 29
United States v. Dennis [2d Cir. 1970] 183 F.2d 201,

SE au a 45
United States ex rel. Forella v. Follette [2d Cir.

ee ee oo i ok neve Veoh vceurdauws 29
United States v. Massemo [2d Cir. 1970] 432 F.2d

out, covt. Geom. 400 U.S. BOER . 2. 05 cc cccvccvecvees 29
United States v. Massiah [2d Cir. 1962] 307 ™. 2d

ne ae or es he SE Ee ok as 28

United States ex rel. Maldonado v. Denno [2d Cir.
SE Se NE OE bk bh ew ree saecd biniated dase’ 45

Vv
PAGE
United States ex rel. O’Connor [3d Cir. 1969] 405
F.2d 632, cert. den. 395 0 2 RRS sererer are 29
United States v. Plattner [2d Cir. 1964] 330 F.2d
OE star snnses ou aceedeenensny vanes ep enres ne 45
United States v. Vanterpool [2d Cir. 1968] 394 F.2d
Me cca vesavesws ius etre Coeaens reer ee pers xa4=> 31
United States ex rel. Lopez v. Zelker [S.D.N.Y.]
344 F.Supp. 1050 ....... 0s serene reece rece eeeees 29
Von Moltke v. Gilles [1948] 332 of ae 30
Authorities Cited
Art. I, §6, N.Y.S. Comst. 0.0... 00. eseeeee cree ecees 35, 45
United States Constitution:
Amendment V ........-+.eeeeeeeeeeeeees 2, 29, 30, 31
Amendment VI .......---+seseeeeeees 2, 29, 30, 32, 45
Amendment XIV .........eceeeeee eer eeeees 3, 31

98 U.S. § 1257, subd. 3... 6. eee e cece eee renee ees 2

a IN THE

Supreme Court of the Uniteh States
October Term 1972
No. 72-6069

>
Vv

WuuuM Woopen,
Petitioner,
agamst
Tue PEop.e oF THE State or New York,
Respondent.

4\.
Vv

BRIEF IN OPPOSITION TO A PETITION FOR A
WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF THE STATE OF NEW YORK

To: THe HonoraBLE, THE CHIEF JUSTICE AND THE ASSOCIATE
JUDGE OF THE SuPREME Court oF THE UNITED StaTEs

The petitioner, William Wooden, prays that a writ of
certiorari shall issue to review a judgment of the New York
State Court of Appeals entered on November 2, 1972.

Opinions Below

The memorandum decision of the New York Court of
Appeals is reported in 31 N.Y. 2d 753,—N.E. 2d—. The
Appellate Division, Second Department, did not write an
opinion but the judgment of affirmance is reported at 38
App. Div. 2d 690, The decision-order of the Nassau County
Court entered after a pretrial hearing on a motion to sup-
press the confessions is not reported but is printed in the

Appendix as Exhibit A.

Jurisdicti

The jurisdiction of this court is apparently sought pur.
suant to 28 U.S.C. § 1257, subd. 3, it being argued that
petitioner’s Fifth, Sixth and Fourteenth Amendment rights
to a fair trial were unlawfully interfered with because he
was forced to trial without counsel, and also because an in-
competent confession was introduced into evidence against
him. Petitioner also argues that his Sixth Amendment
right to be confronted by the witnesses against him was un.
lawfully interfered with because of the in-court testimony
to a declaration made by a co-defendant at the time of the
crime.

No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indict-
ment of a Grand Jury except in cases arising in the land
or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use, without just com-
pensation.

Amendment VI

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 been
committed, which district shall have been previously ascer-
tained 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 process for obtaining Wit-
pesses in his favor, and to have the Assistance of Counsel
for his defence.

Amendment XIV

Section 1. 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 pro-
tection of the laws.

The Confession Hearing

Detective-Lieutenant Daniel Guido (155 et seq.) testified
he advised Wooden he had been indicted for Murder as a
result of the killing of the station agent at the Mineola
Railroad station and that he, Guido, wished to explain to
Wooden fully his rights. Wooden interrupted the Lieuten-
ant to advise him that he knew what his rights were. The
Lieutenant insisted he must enumerate these rights to
make certain there was no misunderstanding. According-
ly, the Lieutenant advised Wooden of his right to counsel
and his right to remain silent, and that anything he said
might be used in evidence against him, and that if he could
not afford an attorney before he was questioned, an attor-
ney would be made available to him (156).

Wooden stated that he understood and he was deter-
mined to confess his guilt because he was going to get 60
years or life because the three members of the Smith
family were against him (157).

“—_ -- ~ Oe re Oe Os eee Be

i i ei a ial

ger omer we

a

4

The Detective-Lieutenant cautioned Wooden that if cop.
vieted, he did not know what the sentence would he.
Wooden was asked if he knew and understood what his
rights were and whether he wanted to talk to the police
rather than an attorney (157).

Wooden insisted that he knew what his rights were
that he wanted to make a statement. The Detective-Liey.
tenant then advised Wooden that Hill and Smith confessed
to their part in the killing and both said Wooden did the
hooti , Banks insisted he was outside in a car
and was not certain who did the killing (157).

The Detective-Lieutenant then asked Wooden whether it
was true that he had shot and killed the deceased. Wooden
denied that he was the shooter, and insisted that Willie
Smith was actually the killer. According to Wooden, Smith
had the gun, 7 bullets, and loaded it in the car (158).

According to Wooden when he and the others were at
the railroad station, a man came out and tried to open a
shade but failed. The man left and returned a second time
whereupon Wooden entered the station office to get the
money, and while there he heard a shot outside. When
Wooden came out of the office, everyone was gone so he
ran to the car up the street (158).

Wooden insisted that he did not see who actually did the
shooting but he suspected it must be Willie Smith since
Willie Smith was the only one who had a gun and was play-
ing with a gun later on that day in Jamaica (158). More-
over Wooden insisted to the Detective-Lieutenant that the
holdup was not his idea. He contended that he and his
friends were sitting around discussing money the night
before the crime but the specifies of the robbery did not
come from him originally.

Wooden also told the Detective-Lieutenant that he re-
calls seeing a short, dark <kinned colored woman whe

would be Mrs. Laura Palmer come into the railroad station

on the morning of the crime, and ask what time the next
train was leaving. Wooden believed that he spoke to this
lady (159). Lieutenant Guido than asked Detective Lazor-
eak to prepare a written statement for Wooden to look over
and sign (159). Detective Fred Lazorcak (101 et seg.) and
Gerald Hunter (200 et seg.) reduced the oral statement to
typewritten form for the defendant’s approval. The ques-
tioning commenced at approximately 9 P.M., the evening of
April 28, 1968, and was concluded at about 1:30 A.M.
April 29, 1968.

Detective Daniel Lannon (192 ef seq.) obtained certain

information from the defendant for purposes of

a police arrest card and Donald J. White (255 et seq), a

shorthand reporter, recorded the question and answer

statement of Assistant Distict Attorney Jack Lewis. The

two confessions (People’s Exhibit 37 and 44) were offered
and received into evidence (852-854).

The Voir Dire

Cohn was appointed along with Robert Corcoran to rep-
resent appellant in the Nassau County Court the morning
of April 29, 1968, following appellant’s arrest the evening
before, April 28, 1968. The confession hearings were held
before Judge Spitzer in the Nassau County Court on Oc-
tober 8, 9 and 10, 1968, with appellant represented by Cohn
and Corcoran. In December 1969, Corcoran had to with-
draw and Charles Brown, a former senior trial counsel for
Legal Aid in Nassau County, was assigned to assist Cohn.
A conference was held on December 22, 1969 (274 ef seq.)
in the Nassau County Court with Judge Spitzer and the
attorneys representing Banks, Wooden and Smith to fix a
trial date. It was there determined that the case against
Banks would go on Mareh 2, 1970, and the ease against
Wooden was scheduled to follow. Banks’ case was sub-
sequently adjourned and on March 16, 1970 (288 cf

OE ee OR FP ae OE erat

—

seq.), the trial of Wooden commenced. The People re.
sponded they were ready whereas Cohn advised the court
the defendant was not prepared (288) because Wooden had
discharged Cohn and would not permit him to represent
him at the trial or participate in his defense (288).

Accordingly, Cohn moved to be relieved and have pew
counsel assigned of defendant’s own choosing or counsel
that the court might choose and whom the defendant would
approve (289). Wooden said he could not go to trial with
Cohn because of Cohn’s lack of interest, because they
could not communicate, and because he believed Cohy
could not protect him (290).

Significantly, Wooden admitted he was satisfied with
Brown and felt Brown could properly represent him at the
trial and so he wanted Brown to remain in the case (290).

Continuing, Wooden advised the court that he had com.
municated with the former colored Assistant District At.
torney in Nassau County, Robert Rivers, and he wanted
him assigned or to have someone else assigned of defend-
ant’s own choosing. Wooden advised the court that he
would submit a list of names to the trial judge. The court
promptly advised Wooden that it was the court’s job alone
to make the assignment (290-291).

The court satisfied itself that Wooden could not retain
counsel of his own choosing (291; 303).

Moreover, the record will clearly demonstrate that Cohn
represented many indigents in the past (292). The court
advised Wooden he did not have the right to refrain from
going to trial until someone was appointed that was suit-
able to him (293).

Again, the court pointed out that assigned counsel were
very experienced and competent, that Cohn was well known
to the courts, a leader of the Bar with considerable experi-
ence in a number of other murder prosecutions (294, 302).

7

Co-counsel, Brown, was also described as a respected
member of the Bar (294) who at one time was one of the
senior trial attorneys for the Nassau County Legal Aid

Society (294).
The court asked Wooden if he wanted to represent him-
self and Wooden at this point replied ‘‘no”’ (294).

Brown volunteered that he did not believe the defendant
wanted to select another attorney but merely wanted the
court to assign someone different that Cohn (297). Brown
confessed that he was familiar with the Mineola Railroad
station killing and had been assigned to Wooden for a
number of months. However, Brown insisted he could
not act as primary trial counsel because he was not a party
to the prior negotiations or proceedings (290; 298).

Wooden then complained that he had not seen Cohn since
the trial date had been fixed on December 22, 1969, and
a lot had happened in the case that was unknown to Cohn
(302). Wooden insisted that he wanted the case adjourned
for another month (302).

The court reminded the defendant of Cohn’s familiarity
with the case, that he had been representing Wooden
since April 29, 1968, and had represented him for three
days, October 8, 9 and 10, 1968, at the confession hearings
(302-303).

The trial judge after due consideration denied the ap-
plication of Cohn and Wooden ruling that it had assigned
competent counsel, that both Cohn and Brown were men
of ability and integrity, and it was up to the defendant
whether or not he would communicate with them (304-
305).

Cohn then made a motion on behalf of Wooden to ex-
amine the Grand Jury minutes and to dismiss the indict-
ment on the ground that the indictment was based, in part,
on the testimony of Betty Mack and Leitha Mae Smith
who had been indicted for Perjury subsequently. It was

a

conceded that Betty Mack and Leitha Mae Smith both
testified before the Grand Jury leading to the indictment
in this case. It also was conceded that both girls, Betty
Mack and Leitha Mae Smith, were indicted for Perjury
as a result of their trial testimony in the case of Ceasar
Hill, Jr. The application to inspect the Grand Jury min.
utes was denied (56-57; 500).

Cohn also moved to have Judge Spitzer disqualify him.
self, which application was also denied (312-317).

Wooden then stated that he had heard from other ip.
mates in the Nassau County Jail that Banks had been
promised a 7 year sentence if he would testify against the
defendant. The prosecutor denied any promise (318).

Following lunch, certain ground rules for the conduct
of the trial were discussed (320-329). In this connection,
the defense was seeking to allow both counsel, Cohn and
Brown, to cross-examine during the trial, as well as per-
mission to question the same prospective jurors during
the selection period (supra).

Cohn advised the court that he wanted permission for
Brown to cross-examine because Wooden might not com-
municate with him (330). The court observed Wooden
communicated freely with Cohn during the confession
hearings. However, according to Cohn, there had been a
material change in Wooden’s attitude because Wooden
was holding Cohn personally responsible for the deal with
Banks (330).

The trial prosecutor, Assistant District Attorney Jack
Lewis, volunteered that the same manslaughter plea of-
fered Banks had been made to all defendants in the case
and specifically to Wooden through Cohn a year ago, and

rejected (330).

The trial judge advised Cohn he could not be held ac-
countable for the state of mind of Wooden (331).

Brown argued Wooden was disturbed because he had
expected Banks’ trial to be disposed of first and he sus-
that Banks was going to testify against him because

his trial had been adjourned (332).

Both counsel interrogated prospective jurors (332-335)
and the case was adjourned to the following day, Tuesday,
March 17, 1970.

During the voir dire, Cohn moved to make the indict-
ments of Leitha Mae Smith and Betty Mack part of this
record, as well as their Grand Jury testimony given in
connection with the instant indictment (367). A lengthy
colloquy developed at which time the trial District Attorney
advised that he had tried Ceasar Hill, Jr. and the two
girls, Betty Mack and Leitha Mae Smith, had testified for
the People. Cohn reported to the court that he had not
read verbatim the trial testimony in the Hill case but he
planned to do so (375). The trial prosecutor advised both
counsel and the court that he had subpoenaed both wit-
nesses, Betty Mack and Leitha Mac Smith, to testify for
the People at this trial (377).

There was further discussion about the Banks case and
why it had not been tried and what prompted the adjourn-
ment, taking all the rest of the day.

On March 18, 1970, Judge Spitzer was advised Wooden
had received a letter from Robert Rivers, Esq. wherein
Rivers left the issue up to the court (386).

Once again, the defendant fired Cohn and Cohn moved
to be relieved. The motion was denied (387).

The defendant then addressed the court personally
charging that Judge Spitzer was prejudiced in all forms
because there were no other negroes in the court room,
arguing he was being accused of killing a white man and
judged by all white persons (388).

a

10

Wooden insisted he did not have counsel, that Cohn had
not learned about the perjury charges until March, and
did not know the specific sentence given to the co-defend-
unt, Ceasar Hill, Jr. (289).

Cohn insisted he had assumed the court sentenced Hill
to life on the basis of a murder conviction which was
correct. Cohn coneeded he did not know when the perjury
indictment involving the girls in the Hill trial had actually
come down (390).

Cohn advised the court that he had studied the testimony
of both women at the Till trial, and he again moved for
a dismissal of the indictment, which was denied (393-413),

On Monday, March 23, 1970, the voir dire resumed and
jurors numbers 3 through 7 were sworn ( 476), and after a
lunch break, jurors numbers 8, 9 and 10 were sworn (476-
79).

In the absence of the jury, and the prospective jurors,
Mr. Brown advised the court he had a conference with
Wooden that morning, who indicated he wished to make
some remarks to the court (479). According to Brown, the
defendant felt aggrieved and was of the opinion he was not
being properly represented (480).

Secondly, Brown reported the defendant was in a posi-
tion to retain counsel of his own choosing and therefore
wished to have Mr. Colin relieved and have a reasonable
opportunity to obtain counsel of defendant’s own choosing
(480).

At this point, defendant personally addressed the court,
arguing he could not get any legal advice from his lawyers
regarding the perjury of Leitha Smith. Wooden also
wanted charges pressed against the trial prosecutor based
on remarks of Leitha Smith made in the course of the Hill
trial (481).

Tn addition, Wooden wanted charges pressed against
Detectives Hunter and Lazorcak, stating he didn’t think

il

either of these two should be sitting in the courtroom since
they would be witnesses for the People (481).

The defendant concluded he was still without counsel,
would not have anything to do with the case, the case was
jost, and he took exception ‘‘to this whole thing’’ (482).

Mr. Cohn again moved to be relieved, repeating his
earlier reasons for this relief and stating this was the third
occasion defendant had indicated he did not want Cohn

(483).
Moreover, Cohn stated the defendant would not listen
to him or take instruction or guidance from him (483).

However, Cohn detected the defendant had confidence
in Brown (403).

Cohn suggested he be relieved, but that Brown continue,
and to have counsel assigned to assist Brown (483-84).

The court mentioned if the defendant wished to try his
own case, that was his privilege, assuming, of course, he
didn’t wish to take Cohn’s advice. But if defendant did
try his own ease, the court would direct that counsel sit
by and advise defendant if he wished to afford himself of
that opportunity (485).

With respect to the assertion the defendant wished to
retain an attorney, the court stated there was no evidence
the defendant could do so, since the court heard the de-
fendant’s wife had visited him over the weekend and there
was no indication to the court there were means to retain
private counsel (483-84). The court believed this was a
dilatory tactic on the part of defendant and denied the
application to discharge Cohn and give defendant time to
retain counsel (484).

Moreover, the court added it had nothing before it to
show the defendant had the financial means to retain eoun-
sel, but, on the contrary, in the past, the indication was the
defendant had no funds (485).

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PET LRN HOON LT NR PIN ee NE

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ELENA EEO NGS TEP NI RIED? BANE PI WEE PPT 0)

a

Thereafter, the voir dire of the jurors continued, and
by the end of that day juror number 12 had been sworn,
following which three alternates were chosen and sworn oy
Tuesday, March 24, 1970 and both sides requested the cage
to go over to the following morning (487-92).

12

The jury was then excused until the following day.

Suddenly the defendant personally stated, ‘‘. . . under
the circumstances, the way this case is going, I’ll defend
myseli’’ (493).

The court, obviously taken aback, said, ‘* You’ll what?”
(493).

Wooden repeated he would defend himself because he
felt he was forced to do it; that he considered what he
was doing and would defend himself. He added the court
had not given him an opportunity to really express himself,
although it may have done so in a way (494).

Wooden added his counsel had expressed the hope he
would take a plea in this court, which the defendant inter-
preted to mea they felt he was guilty and therefore he had
nothing to lose and everything to gain by self-representa-
tion (495).

Brown advised he and Cohn would exert every possible
effort on defendant’s behalf, by giving him a professional
view of the obstacles facing him and the possible outcome
of the trial (494-95).

Brown also said he told the defendant he should not
defend himself and Cohn joined in Brown’s remarks (495).

So, too, Cohn added, the court’s denial of his various
motions to be relieved had not inhibited in any way Cohn’s
representation of defendant (495-96).

The court addressed Wooden, again telling him his
counsel was very experienced and exerted great. skill in
pickiag the jury; that he needed counsel’s skill to cope with
legal questions which would necessarily arise (496-97).

13

Judge Spitzer advised the defendant against represent-
ing himself because he did not have the background, ability
and experience to cope with the matter (496).

The Judge again explained his understanding of the
law saying it did not allow an indigent defendant to choose
alawyer, for good reason (293, 496-97).

Concerning counsel’s advice to defendant to take a
lesser plea, the defendant was reminded practically all the
cards in the case were on the table—the Hill trial was now
a matter of record; counsel had a duty to analyze this and
the court assumed counsel had analyzed the case for de-
fendant (497).

Wooden disagreed once again, claiming that as far as
he was concerned kis lawyers formed an opinion that he
was guilty and that he would be ‘‘better off copping out”’
(497).

Judge Spitzer asked Wooden if he really wanted to
represent himself and Wooden said he had no alternative
because the court was forcing him to do it (498).

The court denied this, stating it was not forcing Wooden
to do anything, and reminded Wooden he had been supplied
with skilled counsel. Wooden said he didn’t want them
(498). The Judge stated he would take that under advise-
ment and Mr. Cohn once again arose and asked to be re-
lieved (498-99).

The court told Mr. Cohn that if it developed that
Wooden would be permitted to try his case, the court would
assign both Mr. Cohn and Mr. Brown to sit in the court-
room for the purpose of offering advice to the defendant
if it was requested. The trial was then adjourned until
Wednesday, March 25, 1970 (499), when the defendant
stated to the court:

‘J will stick to my opinion. T will not use these
counsel for advice, even. They have been advising
me wrong for twenty-four months and I see no rea-
son to keep with the same advice.”’ (500).

AIT ee te

pe ald

14

The court insisted it have a clear answer and the de.
fendant finally answered he wanted to try his own cage
(500-01).

The court wanted to make it ecrystally clear Wooden
understood the trial of the case with all of its ramifications,
would be his responsibility. Defendant answered he under.
stood that (501).

The court asked whether Wooden thought this decision
over, and Wooden stated:

‘‘T have been thinking it over, Your Honor, for
the last two months .. .’’ (501)

The court again asked if Wooden wanted to try his case
and Wooden replied he did not want the counsel at the
table with him (501).

Wooden charged he thought everything had been ‘‘not
just’’ in the court (501).

Wooden further moved for additional time to prepare
himself because he wished all the papers Cohn and Brown
had with respect to his matter so he could study them
(501-02).

Brown inquired as to the function or status he and Cohn
would now have in the case (502-03). The court announced
it was granting defendant’s request to represent himself,
commenting whether defendant was wise or not was for
defendant to determine, the decision having been made by
the defendant (503).

Cohn moved for a mistrial rehashing the history of the
matter from December, 1969 up to the present (503-05).

Cohn believed Wooden could not get a fair trial if he
tried the case himself (506).

Lewis, the prosecutor, opposed the motion, since the de-
cision to defend himself was the defendant’s (506-07).
Cohn urged there was no prejudice to the People if a mis-
trial was declared (503-07).

-—

15

The court then corrected certain of Cohn’s factual re-
marks (507) stating that, in reality, the defendant wanted
to select an assigned attorney (508-09).

A bench conference was held, the prosecutor advising he
would have no objection to giving Wooden some time to
familiarize himself with the papers in the case (509-10).

Cohn restated his opinion that Wooden was not really
freely and voluntarily trying his own case because the
court was forcing him to do it (510). Cohn suggested an
adjournment for two weeks and the assignment of other
counsel or Mr. Rivers (510).

The court claimed there would be calendar chaos if it
departed from the general rule.

Moreover, the court had adjourned the matter the pre-
yious evening to allow the defendant more opportunity to ;
think about trying the case himself; defendant, to the
court’s regret, stated he thought about it (511). 3

The court also stated, ‘‘Of course, I realize that he
would rather have the choice of appointing some other
counsel, but this I will not do’’ (511).

Defendant announced he had not seen the minutes of
the Hill trial; the court asked Cohn if he went over the

minutes with Wooden and Cohn stated Wooden was fa- ;
miliar with the nature of the evidence at that trial (511- f
12). i

Furthermore, Cohn stated he would turn over the papers
and minutes to the defendant and the defendant had a
copy of the court’s Huntley hearing decision (512-13).

The trial prosceutor interjected saying it was not until
the day the trial started that defendant said he wanted
other counsel. Lewis observed the defendant was satis-
fied with Brown, following which Brown and the defendant
disagreed as to a particular matter and the defendant
was no longer satisfied with Brown. The prosecutor’s

aM PUL LE RRA LR PN TL TPN Ie Ie TA eee

a

16

observation concluded with the assertion the defendant
would continue to discharge any lawyer assigned to him
with whom he disagreed (517).

The court then granted the defendant a

adjournment from Wednesday, March 25, 1970 to the next
Monday, March 30th (517).

Judge Spitzer instructed counsel they were not relieved
of their assignment; they were not to force themselves
upon defendant; they were to remain in court at the
counsel table or just beyond, and if the defendant wished
to avail himself of their services, he could do so (517-18).

So, too, if counsel wished to object for some reason, it
would be up to the defendant to allow them to do so (518).
Brown agreed there was precedent in law for the action

then being taken, but Brown thought the precedent was
not common sense (518).

Defendant answered he was not ready, claiming he had
not enough time to read 3,100 pages (522).

Conversely, the defendant then announced he was ready
to proceed (522-23).

Wooden stated he would take advice from his lawyers—
Brown would do his speaking, but that he also wanted to
speak when he thought it was necessary (523-24).

The prosecutor advised there would not be any identi-
fication of the defendant, by photograph or by eye wit-
nesses, at the scene of the crime (524-25).

Defendant’s gears shifted to reverse; the defendant
said: ‘‘I will try my case, Your Honor’? (525).

Puzzled, the court said: ‘‘Well, now, which is it?”’
Stripping his gears (525), Wooden replied:

‘Mr. Brown is going to give me all the legal advice
I want. He will—well, IT will withdraw that. I am

17

going to let Mg. Brown try this case with counsel
from me. He can’t do anything without my per-
mission’’.

Wooden continued:

‘Whatever he do will be satisfactory to me. He
will do through this court, because the way this trial
is going, Your Honor, | am convicted. I don’t
see any way to get out of this court. This court has
me down pat. Mr. Lewis has me here. I am the
only negro sitting in this courtroom. This people
come in and identify me. It’s got to be me. Can’t
be no one else. That’s my whole problem”’ (525).

The court, reacting swiftly, stated this was not a race
question and the question was not properly before it.
Moreover, the court indicated it was sure the attorneys
had sat down with Wooden and had tried to analyze the
past evidence (525).

Obviously, still uncertain of just what the defendant
intended to do because of all the double talk, the court
once again asked Wooden if he wished to avail himself
of the advice and help of the two lawyers, and the de-
fendant answered, ‘‘yes’’ (525-26).

To make sure, the court then asked if Wooden wanted
them to conduct the examination of witnesses. The reply
was: ‘‘That I will have to decide at a later date, Your
Honor’’ (526).

Patiently, the court explained that decision would have
to be made very soon. The defendant then conferred with
Mr. Brown (526).

After this conference, the defendant renewed his appli-
cation to remove the sole remaining detective assisting the
prosecutor, which was denied, the court again patiently
explaining the reason (526).

Wooden then asked for an extension of time to finish
reading the minutes, which apparently took the court aback,

RO TERED CW AO

ony

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it stating it thought the defendant had stated Brown was
going to conduct the examination (526, 527).

The court directed the record reflect that
this lengthy colloquy the defendant had been conferr;
with Brown.

Defendant was told he had Wednesday through
for this purpose. Defendant insisted he didn’t get the
minutes until Thursday night and that the minutes had
not been explained to him prior to that. The defendant
insisted his counsel had not gone over the minutes with
him prior to the Wednesday adjournment except for the
testimony of Leitha Smith (527).

The prosecutor advised the first 7 or 8 witnesses he
was going to call, were present, were all covered in the
first volume of the Hill trial and, since the prosecutor
believed he heard Wooden say he had read through half
the minutes, Lewis believed defendant had therefore read
the testimony of the witnesses who would be ifyi
that day (527). The defendant inferentially conceded this,
but argued he had done so without a law book (527).

The court directed the case proceed and if the de-
fendant found he needed time later, the court would con.
sider another application (527).

Wooden and Brown were immersed in conference and
did not hear the prosecutor ask whether or not Wooden
was going to conduct the trial himself. The court inter-
rupted the conference and asked the defendant whether
he was going to conduct the entire trial himself (528).

Wooden replied :

**Well, Your Honor, due ‘to these circumstances,
I would like to call upon Mr. Brown from time to
time, or Mr. Cohn, at certain times. IT hope I ean
conduct it by myself, but if not, I will call on them”
(528).

The court again told the defendant to do whatever
be wished and reiterated that Brown and Cohn were
eminent members of the Bar, skilled in trial work, etc.
(528).

The prosecutor insisted on knowing if and how many of
the counsel or Wooden or all of them were going to conduct
the trial (528-29). Wooden stated he would conduct the
trial and would look to counsel for legal advice (529).

The prosecutor opened to the jury (529-34).

At the conclusion of the People’s opening the defendant
requested the jury be excused (534) and then told the court
he made an error when he said he was ready; that he was
not ready to defend himself ; that five days were not enough
to read 3,100 pages of minutes.

Exasperated, the court reviewed the on again off again
tacties of the defendant, rebuked the type of delay being
occasioned, and said it was convinced the defendant was
bent on delaying the proceedings as much as he could (535).

Wooden complained five days was not enough time for
him to prepare to defend himself (535).

The court again advised he had two eminent counsel
who were well prepared to try the case and that they had
advised the court they had discussed the case with him from
time to time, or at least portions of it, and this was
nothing more than a rehash of all that previously occurred
(336).

The jury was brought back to the courtroom and the
first witness was called by the People (536).

The Trial
Patrohuan Linwood Gunter, Robert Sefton, Detectives

Gerald Hunter and Fred Lazoreak and Detective-Lieutenant
Daniel Guido (668-752) repeated their testimony given

a

20

earlier at the confession hearing that Wooden was arrested
the night of April 28, 1968, for a burglary. He was
transported to the Third Precinct stationhouse, Williston
Park, where Wooden was advised he had been indicted for
Murder, and Banks and Willie Smith said he was the
shooter. Wooden was also advised of his right to co
that he had a right to remain silent, and his refusal to
answer questions would not be used as evidence against
him, and if he could not afford an attorney, and wanted to
speak to an attorney, one would be made available prior
to questioning.

Wooden confessed but insisted he did not kill the de-
ceased. According to Wooden, he suspected Willie Smith
was the killer but he did not know for certain.

The confession, People’s Exhibit 44, went into evidence
through the stenographer, Donald J. White (726-729).

Johnny Banks’ Testimony

In the absence of the jury, the Court ascertained from
the trial prosecutor that John Banks would be called as
a witness for the People. Banks and his attorney, Irving
Tenenbaum, Esq., appeared in the Court Room (616).

The attorney advised the Court his client was still under
indictment for the crime of Murder and related crimes,
the case was still pending, was not disposed of, and Banks
intended to testify against Wooden (617-618).

Assistant District Attorney Lewis then stated for the
record that if Banks testified truthfully at this trial and
at another one, he would be permitted to plead guilty to
a Manslaughter charge; that there was no discussion as
to sentence nor was there any promise made with respect
to sentence (619). Banks confirmed this to the Court
and the jury was then brought back into the court room
(619; see also 649).

21

Banks testified (620) he was currently under indict-
ment for Murder, Robbery and Grand Larceny stemming
from the February 18, 1968, Mineola Railroad Station
robbery and that he knew the defendant during February
of 1968 (620).

The assistant prosecutor announced to the jury the
promise made to Banks in exchange for his truthful testi-
mony—a plea to the reduced charge of Manslaughter (621)
and that his anticipated cooperation would be brought to
the attention of the sentencing judge at the time of sen-
tence (649).

Banks further testified regarding the comings and
goings of the defendant and co-defendants at Leitha Smith
and Betty Mack’s premises, 219 Stewart Avenue, Hemp-
stead, on February 17, 1968, through the early morning
hours of February 18, 1968.

The accomplice also advised about how the defendant
himself and the other co-defendants planned the robbery
while driving in the witness’ car; how they acquired the
weapon used, and how they rehearsed the route driving to
and from the Mineola Railroad Station (627-636, 642-645).

Banks, on the morning of the crimes, drove to Mineola
past the Mineola railroad station, parked the automobile
near a hospital entrance, and his three friends got out
(636).

The trial prosecutor then asked the witness what if
anything happened after that and Banks stated he dozed
off and went to sleep (637).

The witness then volunteered:

‘The next think I know, Willie and Ceasar tear-
ing the door off my car almost and saying, ‘Let’s
go’ and said, ‘Woodie shot a man.’ ”’ (637)

The defendant immediately moved for a mistrial, but
the Court struck the volunteered statement from the record

a

and instructed the jury to disregard the statement in its
entirety, telling them they were not to be influenced in
any way, shape or form by any alleged statement made
by either Smith or Hill (637).

The defendant reiterated he was moving for a mistrial
and the Court again instructed the jury to disregard the
statement; that it was not binding in any way upon the
defendant, and was not to be considered by them. The
Court emphasized that all the jury could consider was the
fact that these two men came back to the witness’ car.
“*Nothing that they allegedly said can be considered by you
in any way, shape or form. Is that clear to you, gentlemen?
All right.’’ (638)

The Court denied the motion for a mistrial and advised
the District Attorney to caution the witness which ap-
parently had already been done (638).

Banks then testified Wooden returned to the car shortly
after Smith and Hill. The witness then drove the vehicle
to the city (638-639).

A conversation between the defendant and Hill ensued.
Hill asked the defendant whether he shot the man and
the defendant said, ‘‘. . . he didn’t know. He shot at him.”
(639)

The defendant gave Hill some money to give to the
witness (639) and after being in the city, the four drove
back to Jamaica where they went to Mary Jones’ home.
The defendant passed around to each of the three men
$5.00 apiece in dimes (640).

The four remained the morning and departed again
in the witness’ car. The defendant, Wooden, was dropped
at the Jamaica train station and the witness then drove
Smith and Hill to Hempstead (641).

On the following Friday, the witness and Wooden went
to Boston and remained there for about two weeks at the

23

conclusion of which Banks came back to Nassau County
(641-642).

Banks further testified that on February 18, 1968, the
defendant had a bushy hairdo and had hair on his face
(642).

On cross-examination Banks admitted that he was
indicted with Hill and Smith for these crimes but denied

he was promised any specific sentence for his testimony
(646-653, 667-668).

The Ladies of 219 Stewart Avenue, Hempstead

Betty Ann Mack (577 et seq.) and Leitha Mae Smith
(391 et seg.) were both called as witnesses against the de-
fendant, Wooden. They had previously testified at the
trial of the co-defendant, Ceasar Hill, Jr., and were in-
dicted for Perjury.

In effect, both girls were summoned at the trial of Hill
to testify as they did before the Grand Jury to criminal
conversations involving Hill, Wooden, Banks and Smith
having to do with the planning and execution of the rob-
bery at the Mineola Railroad Station. Both girls refused
to testify and so were indicted.

Betty Mack appeared in court with her attorney,
Anthony Correri (573), whereas Leitha Mae Smith was
represented by Henry Maccaro (586-588). The trial Dis-
trict Attorney stated for the record that both witnesses
had been advised that their testimony would not be used
against them in the event the prejury indictment went to
trial. Both lawyers advised their clients to cooperate.

Miss Mack was the girlfriend of Willie Smith and the
mother of his child. She gave no concrete testimony against
Wooden and was not cross-examined.

24

Leitha Mae Smith (591 et seg.) was a cousin of
Hill, Jr., and a sister of Willie Smith. She testified Wooden,
Hill, Smith and Banks were at her Hempstead home the
day before the killing. Moreover, sometime during the
week prior to the murder, she heard Wooden say to Banks
that he had been planning a job for a long time that was
worth $4,000 (592-598).

On cross-examination, Leitha Mae Smith insisted that
she had never told a lie but **they said I lied, so I guess J
did’’ (603).

On re-direct examination, it was elicited from the wit-
ness that she was currently under indictment for perjury
(603). Bonny Edwards (609) testified she, too, was a
sister of Willie Smith and a cousin of Ceasar Hill, Jr.,
and a friend of Banks and Wooden. She testified, in effect,
that Wooden and the others were at her home the day be-
fore the killing and Wooden told Banks to hurry up and
get his hair fixed since they had a job to do (611).

On cross-examination, Wooden brought out that the wit.
ness in a prior question and answer statement given to the
Grand Jury denied there had been a discussion of a job,
or doing a job (612).

On re-direct examination, Mrs. Edwards insisted part
of her former statement was true and part was not true.
According to the witness, she lied at Headquarters when
the statement was given because she was frightened and
did not know if her brother was involved in the murder
(616).

Pauw Firzceraup (536 et seq.) and Rosert W. Huzerr
(540 et seg.), Long Island Railroad employees, testified
that on Saturday, February 18, 1968, shortly after 6 A.M.
they arrived at the Mineola Railroad Station where they
saw three colored men inside the stationhouse (536-537).
The witnesses boarded a train within 25 or 30 minutes after
their arrivals and observed the three men remain at the

——

25

stationhouse (538-542). Hilbert could not identify anyone
in the courtroom whom he observed at the station (542).

On cross-examination, Mr. Fitzgerald stated he had not
previously identified anyone at a lineup (539-540) but
Hilbert conceded he had previously identified Ken Lewis, a
James Smith, Caesar Hill and Willie Smith during an

~ earlier lineup (544-545).

Tuxopnitus Jones (546 et seq.), a porter at the Mineola
Railroad Station on February 18, 1968, did not identify
Wooden or any other defendant (546-548).

Lavra Paumer (714 et seq.) testified that on the morning
in question, at about 6:40 A.M., she went to the Mineola
Railroad Station, saw three young colored men, and asked
one of them whether or not the train had left. She was told
it had left and she departed (714-715).

On cross-examination, the defendant effectively elicited
from her that she had previously picked out James Smith
at a previous lineup as being one of the perpetrators (716-
717).

Dr. ALMancio Genito (549-550) pronounced the victim
dead on arrival at the Mineola Nassau Hospital emergency
room at approximately 7:20 A.M.

Dr. Dantet C. McCarruy (550 et seq.), the Deputy Med-
ical Examiner of Nassau County, performed the autopsy
upon the victim on February 18, 1968, and, in his opinion,
the cause of death was the result of a massive hemothorax
of the left side due to a penetrating gunshot wound of the
back and left lung (551-553).

The doctor recovered an undamaged metallic projectile
which he turned over to the police and which he believed
was the competent producing cause of the wounds de-
seribed (553-556, 557).

PPR ESE PR

eRe

Bae bi 3

—

On cross-examination, the doctor indicated he did not
believe the type wound involved resulted from a ricochet

EPS DAE ERIE LESS BRIA RS LPM YM EES. T

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26

WuuusMm Howey, a cabdriver whose nickname was
‘*Devil’’ (657-659, 662), testified (657 et seg.) that on Feb-
ruary 18, 1968, he had a gun at his home, which he unloaded
and left on the top of his dresser together with loose cart-
ridges (659-661) and did not discover this weapon missing
until three or four days later (661).

Holley idenified People’s Exhibit 12 for identification
as his gun, recognizing its loose sight, white handle and

overall color and the weapon was admitted into evidence
(660-661).

There was no cross-examination.

Detective Ricuarp JANELLI (558 et seq.; 685-686), a ten-
year police veteran with the Scientific Investigation Bureau
of the Nassau County Police Department, testified as an
expert with respect to firearms and ballistics (558-559).

The witness received a bullet from Dr. McCarthy (later
marked People’s Exhibit 11 in evidence)—the projectile
removed from the victim’s body, which he microscopically
compared with another bullet he test fired (559-562). In
the officer’s opinion, both bullets were fired from the sub-
mitted weapon later marked People’s Exhibit 12 in evi-
dence (562-563, 660-661).

Cross-examination of this witness was reserved until a
later time pending recall of the officer (563-565). The bal-
listics report was turned over to the defendant (565-566,
686).

Janelli, at the Court’s suggestion, was recalled (685-
686) and, notwithstanding the Court’s offer to the defend-
ant to allow him additional time to study the ballistics
report, the defendant insisted he had no questions to ask
the witness and did not want the witness further recalled
(686).

Rosert FE. Swank (567 et seq.), a Long Island Railroad
auditor, testified his audit of the Mineola Long Island Rail-
road Station on February 18, 1968, revealed the sum of
$384 in cash was missing, which partially consisted of four

27

rolls of dimes worth $5 each (567-571). No questions were
asked of the witness by the defendant (572).

Mary Jones (687-689) testified that in February of 1968,
she resided in Jamaica, Queens, and on the morning of
February 18, 1968, at about 8:45 A.M., Banks, Smith and
Hill, and a man named Woody, came to her home. She
did not see Woody in the courtroom (687), but described
him as having a bushy head of hair—an Afro haircut—
heavy beard and eyebrows and mustache (687-688).

While there, the four men chipped in dimes and single
dollar bills to buy food and drink (688).

he witness could not remember any direct conversa-
tion with Woody, although she had conversations with all
four of the men (688-689). The defendant did not cross-

examine her (689).

DororHe Greene (690 et seq.) testified she resided in
Boston during February of 1968. The defendant and Banks
came to her home on a Friday towards the end of that
month (690-691) and remained with her for a little over
a week, and departed apparently because she had a con-
versation with the defendant in which Wooden stated he
had shot someone (691). The witness then told the defend-
ant and Banks to leave her house (691).

On cross-examination, the defendant brought out that
ina prior statement given by the witness to the police in
April 1968, she had stated Wooden told her he was involved
in a killing—a man was shot, but Wooden did not then say

he shot the man (694).

On redirect and recross examinations, the witness in-
sisted her prior statement was ineorrect and that her tes-
timony on trial was the correct version (694-695).

Petitioner insists certiorari should issue for two rea-
sons: (1) there is a direct conflict in principle between
the decisional law in the New York State Court of Ap-

peals and the United States Circuit Court of Appeals,
Second Circuit, regarding the competency of a confession,
The claim is New York has ruled an accused may knoy.
ingly and intelligently waive his Fifth and Sixth Amend.
ment rights after indictment and the resulting confession
is competent whereas the United States Court has ruled
to the contrary; (2) petitioner did not knowingly and jn.
telligently waive his trial right to assigned counsel. The
claim is assigned counsel was incompetent as a matter of
law so the trial judge should have substituted a second
attorney. Respondent argues to the contrary.

In pre-Miranda days, New York consistently took the
position the accused had no constitutional right to be ad-
vised of his right to counsel (People v. Gunner [1965] 15
N.Y. 2d 226; People v. Randazzo [1909] 194 N.Y. 147)
and the confession, absent warnings to a suspect of his
privilege not to incriminate himself and his right to be
represented by counsel, was competent.

The court also determined every confession was in.
competent after the commencement of the court proceed-
ings (People v. Biast [1960] 7 N.Y. 2d 544 [indictment-
attorney]; People v. Waterman [1961] 9 N.Y. 2d 561
[indictment]; People v. Meyer [1962] 11 N.Y. 2d 162
[information] ).

So far as we have been able to determine, no other
major jurisdiction ruled incompetent a voluntary and
truthful admission or confession because, and solely be-
cause, of the stage of the criminal case (United States v.
Massiah [2d Cir. 1962] 307 F. 2d 62). With the advent
of Massiah (377 U.S. 201) and Miranda (384 U.S. 436)
in this court, the argument developed throughout the coun-
try the admissibility of a voluntary and truthful confession
should be controlled by the information or indictment. In
behalf of the accused, it was urged all statements of ad-
mission or confession were inadmissible unless made prior
to the commencement of the criminal court proceedings.

29

The argument had the best chance to succeed in the New
York State Court of Appeals because of the history and
tradition of the court in this area. On February 18, 1971,
the court decided an accused, after indictment, could know-
ingly and intelligently waive his Fifth and Sixth Amend-
ment rights and the ensuing confession was admissable
(People v. Lopez, 298 N.Y. 2d 23). The judgment was fore-
seeable (People v. Stockford [1969] 24 N.Y. 2d 146; United
States ex rel. Forella v. Follette [2d Cir. 1969] 405 F. 2d
680; People v. Bodie [1965] 16 N.Y. 2d 275) and consistent
with the general rule (United States v. Crisp [7th Cir.
1970] 435 F. 2d 354; Com. v. Hoss [1971] 445 Pa. 98, 283
A. 2d 58; Com. v. Frangillo [1971] (Mass.) 268 N.E. 2d
341; see, e.g. United States v. De Loy [5th Cir. 1970] 421
F. 2d 900; Arrington v. Maxwell [6th Cir. 1969] 409 F.
9d 849, cert. den. 396 U.S. 944; Coughlin v. United States
(9th Cir. 1968] 391 F. 2d 371, cert. den. 393 U.S. 870;
United States v. Massemo [2d Cir 1970] 432 F. 2d 324, p.
397, cert. den. 400 U.S. 1022).

The rule generated country-wide following Massiah and
Miranda favored waiver (supra). Admittedly, where the
accused has not knowingly and intelligently waived his
Fifth and Sixth Amendment rights cireumscribed by this
court in Miranda, a different result would follow (United
States ex rel. O’Connor v. New Jersey [3d Cir. 1969] 405
F. 2d 632, cert. den. 395 U.S. 923; Hancock v. White [1st
Cir, 1967] 378 F 2d 479).

Petitioner insists the Lopez rule (28 N.Y. 2d 23) was
overturned by Judge Frankel (United States ex rel. Lopez
v. Zelker [S.D.N.Y.] 344 F. Supp. 1050) and his judgment
was upheld by the Circuit Court of Appeals (465 F. 2d
1405).

In the first place, there was no opinion in the United
States Cireuit Court of Appeals so there is no way to know
with certainty why the order of Judge Frankel was
affirmed, Secondly, we do not believe Judge Frankel de-

SLEDS PRO OTe

SOP CNS

Pit ESL TABOR ST is PAO OIE AF LI

—_

cided as a matter of law every post-indictment confession
is incompetent. As we read the decision, Judge Frankel
decided there had not been a ‘‘knowing and intelligent
waiver’’ by Lopez of his Fifth and Sixth Amendment rights
because Lopez was not informed before the interview that
he was already under indictment for murder.

The facts in the case of the petitioner point in the
opposite direction. The uncontradicted, undisputed, up.
denied evidence developed before the trial judge estab.
lished beyond a reasonable doubt ‘hat petitioner had been
fully advised of his Fifth and Sixth Amendment rights as
required by Miranda v. Arizona (384 U.S. 436), includ.
ing the fact that he had been previously indicted for
murdering the station agent, Mineola railroad station,
Long Island Railroad. Moreover, the petitioner was ad.
vised that he had been identified by the others as the
shooter. By any standard including those promulgated by
Judge Frankel in behalf of Lopez, it has been clearly and
convincingly established that petitioner voluntarily and
truthfully confessed to his guilt after knowingly and in-
telligently waiving his Fifth and Sixth Amendment rights.

Petitioner insists ‘‘There is no rational distinction be-
tween Lopez’ ignorance of his indictment for murder on
the one hand, and on the other hand, petitioner's knowledge
of his indictment for murder but ignorance of his indict-
ment for felony murder and of the statutory provision for
an affirmative defense tLereto’’ (Petition, p. 13).

The argument is neither persuasive nor controlling. In
the first place, Miranda does not require the police to
explain ‘‘The nature of the charges * the range of allow-
able punishment * possible defenses and * other facts
essential to a broad understanding of the whole matter.”
This is the test reserved for a trial waiver of counsel (Von
Moltke v. Gilles [1948] 332 U.S. 708, p. 724; Johnson v.
Zerbst [1938] 304 U.S. 458; People v. Seaton [1967] 19
N.Y. 2d 404, p. 406; State v. McKnight [1968] 52 NJ. 35,
243 A. 2d 240).

31

Miranda obliges the police to advise a suspect in custody
or in & police dominated atmosphere of four things: (1)
right to counsel ; (2) right to remain silent; (3) what the
gspect says may be used in evidence against him; (4)
if the suspect cannot afford counsel, then an attorney will
be made a® lable without charge.

The rights of the parties in such case will be determined
by the totality of the circumstances (State v. McKnight,
supra; People v. Stephen J. B. (1969] 23 N.Y. 2d 611;
United States v. Vanterpool (2d Cir. 1968] 394 F. 2d 697,
pp. 698-699).

New York follows the rule in the Second Circuit. A
“ritualistic formula’’ is not required. ‘*Monitions which
carry the substance of the Miranda warnings are sufficient”’
(People v. Stephen J. B., supra, p. 614; United States v.

Vanterpool, supra, pp. 698-699).

It is agreed in a criminal prosecution a voluntary and

truthful confession is the most acceptable and reliable
evidence of defendant's guilt (Hopt v. Utah [1884] 110 U.S.
574, pp. 584-585; People v. Bretagna [1949] 298 N.Y. 323,
cert. den. 336 U.S. 919; People v. Lane [1961] 10 N.Y. 2d
347, p. 358 (dis. op., Desmond, J.}). It is superior in reli-
ability because of its source and because it is a direct
acknowledgment of guilt (supra).

We are unaware of any jurisdiction that would outlaw
petitioner’s voluntary and truthful confession made after
he knowingly and deliberately waived his right to consult
with an attorney before confessing.

Petitioner insists the writ should issue because ‘‘this
court’? must finally decide ‘‘the standard by which such
waivers are to be tested’’ (p. 14).

It is respectfully submitted this is not a valid reason
for issuing a writ unless the standards employed by New
York sink below the minimum test required by the Fifth,
Sixth and Fourteenth Amendments. Whatever the rule

,
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i

SEES
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|
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HH

. 2d G11; People v. RN. (1969) 23 nT. 98
preponderance of the evidence (People y,
[1960] 7 N.Y. 2d 544; People v. Noble (1961) 9
pie 571; People v. Donovan (1963) 13 N.Y. 24 148.
People v. Failla (1964) 14 N.Y. 2d 178; People v. Gunner
[1965] 15 N.Y. 2d 226; People v. Vella [1967] 21 WY.
2d 249; People v. Arthur [1968] 22 N.Y. 2d 325; People y,
Miles (1969} 23 N.Y. 2d 527; People v. Paulin [1965] %&
N.Y. 2d 445) but beyond a reasonable doubt (People y,
Robles (1970) 27 N.Y. 2d 155; People v. Kaye [1969] %
N.Y. 2d 139; People v. McKie (1969] 25 N.Y. 2d 19).

It is apparent New York complies with the spirit of
the Fifth, Sixth and Fourteenth Amendments because it
employs the most demanding of all the tests.

Petitioner insists ‘‘There is a clear conflict with the
Second Circuit which has, at the very least, broadened the
Miranda rules by adding to them a requirement of dis
closure of any ‘stark legal fact’ essential to an intelligent
waiver of the Sixth Amendment right to counsel after ini-
tiation of formal proceedings and without the presence of
counsel’’ (p. 13). We disagree completely.

In the first place, this court did not in Miranda (384
U.S. 436) require of the authorities proof of every “‘stark
legal fact’’ as a condition precedent to a waiver of the
Fifth and Sixth Amendment under any circumstances.
Secondly, the United States Court of Appeals, Second Cir-
cuit, affirmed without opinion not on the opinion of Judge
Frankel but without any opinion. It is presumptuous of
petitioner to conclude in such case the Second Cireuit now
requires that every “‘stark legal fact’’, whatever that may
be, must be fully explained to an accused otherwise the
waiver will not be knowing and intelligent.

85
it
Sx
i

%
3

Moreover, it is apparent that as a test or standard, it
<ould be so indefinite and uncertain as to be unworkable.
jn any event, it is clear that every ‘“‘stark legal f ** was
aplained to this petitioner at the very outset. He was not
aly fully and completely advised of his Miranda rights but
giso the “‘stark fact’’ that he had been indicted for
garder, and identified as the shooter was made crystal clear
before the interview commenced. It is hard to conceive of
way other “stark legal fact’ under the circumstances of

(388 U.S. 218) and
because the Criminal Court proceedings

Criminal Court hi
in New York at least since 1960 (Peopl
9d 544 [indictment] ; People v. Waterman [1961] 9 N. Y. 2d
Si [indictment] ; People v. Meyer [1962] 11 N. Y. 2d 162
[information] ).

Kirby v. Illinois did not involve a waiver of the Fifth or
Sixth Amendment. It is not relevant to this petition.

Moreover, the facts and cireumstances of this case,
namely the police investigation, are not so outrageous that
certiorari should issue to re-examine Miranda.

On the Sunday morning of February 18, 1968, at 7 A.M.,
John Hartel, a Long Island Railroad Stationmaster at
Mineola was shot to death ax he fled for his safety during
an armed robbery.

34

James Smith, William Smith and Kenny Lewis were
arrested following a lineup identification. Mrs. Laurg
Palmer, an employee of the nearby Nassau Hospital, iden.
tified Willie Smith and James Smith, whereas Robert W.
Hilbert, a yardmaster at the Mineola station, identified
Willie Smith and Kenny Lewis but not James Smith.

Theophilus Jones, the station cleaner, and Paul Fitz.
gerald, also an employee of the railroad, were unable to
identify either of the two Smiths or Kenny Lewis.

The Nassau Police and the District Attorney were yp.
satisfied with the identifications, and so continued the
investigation leading to the arrest of Ceasar Hill, Jr,
William Wooden and John Banks. James Smith, Ceasar
Hill, Jr.’s brother, was released as was Kenny Smith.
The case against Willie Smith was strengthened by the
continuing investigation so he was indicted, along with the
others, for Murder and Robbery. The case against the

accused was separately considered with the following
results :

Hill was tried and convicted of both the Murder and

the Robbery, and the judgments of conviction have been
upheld (30 N.Y. 2d 522).

Willie Smith and John Banks pled guilty to Man-
slaughter, and Banks testified against Wooden who actu-
ally killed Mr. Hartel by shooting him in the back as he
was fleeing.

The fact is this petitioner with full knowledge of the
“stark legal facts’’ determined his best interests would be
served by admitting his criminal involvement in the mur-
der. Moreover, it is apparent this petitioner with full and
complete comprehension of his rights determined it would
be in his best interests to disclaim liability for the actual
shooting of the deceased. Whether the decision was wise
is beside the point. No court in the land excludes a volun-
tary and truthful confession because, and only because, the

suspect made a mistake of judgment. ‘‘The proper in-
qsiry is not whether the accused made an intelligent deci-
sion in the spnse that it was wise or smart to admit his
participation in the crime, but whether his decision was
made with the full understanding that he need say nothing
at all, and that he might then consult with a lawyer if he so
desired’ (Anderson v. State [1969] 6 Md. App. 688, 253 A.
2d 387, p. 393).

It is respectfully submitted the petitioner was fairly
tried and lawfully convicted. Certiorari should not issue.

Petitioner also insists that the writ should issue because
t was forced to trial without counsel. The argument

is the trial judge erred in not relieving one of the two
assigned counsel because he was incompetent as a matter
of law. In support of this unusual condemnation, appel-
jant’s counsel relies on the following to document his
indictment or assault on the integrity and reputation of
assigned counsel.

(1) He did not read the entire trial transcript of the
Hill trial.

(2) He did not personally visit appellant often enough
in jail.

(3) He did not know Hill’s sentence.

(4) He was not privy to the plea bargaining in behalf
of Banks, a co-defendant.

(5) Wooden learned about a perjury indictment against
Betty Mack and Leitha Smith as a result of their testimony
in the Hill trial before his assigned attorney.

The appeal calls up for review certain established prin-
ciples of law germaine to the issues. It is settled New York
law that every defendant has a constitutional right to be
represented by counsel (Art. I, §6 N.Y.S. Const.), and it
is equally well settled in New York: “There has heen no
time in the governmental history of this state that the
court lacked the power to assign counsel for the defense

ez

of indigent persons charged with crime * * * and it has
been a part of the obligation assumed by counsel upon their
admission to the Bar to defend poor prisoners upon assign.
ment by the court’’ (People ex rel. Acritelli v. Grout [ist
Dept. 1903], 87 App. Div. 193, pp. 195-196, aff’d 177 Ny.
578; People v. Price (1933), 262 N.Y. 410, p. 412).

It is also settled that it is the duty of the judge alone
to make the assignment (People v. Brabson [1961], 9 NY.
2d 173; see, e.g. People v. Pitman (1st Dept. 1966], 25 App.
Div. 2d 637; mod. 18 N.Y. 2d 919; People v. Sans Souci
[ist Dept. 1965], 23 App. Div. 2d 352, aff’d 17 N.Y. 24 684;
People v. Higgins (1965), 16 N.Y. 2d 751; People v. Bostic
[3d Dept. 1970], 34 App. Div. 2d 597; People v. La Monica
[ist Dept. 1970], 33 App. Div. 2d 1004).

The right to counsel has been recently reaffirmed, the
Court unanimously concluding: ‘‘The right of a defendant
to be represented by an attorney means more than just
having a person with a law degree nominally represent
him upon a trial and ask questions’’ (People v. Bennett
[1972], 29 N.Y. 2d 462, p. 466). While, ‘‘It is impossible
to define with any precision what constitutes ‘inadequate’
or ‘ineffective’ legal representation or to formulate stand-
ards which will apply to all cases’’ (supra), it has now
been determined: ‘‘The defendant’s right to representa-
tion does entitle him to have counsel conduct appropriate
investigations, both factual and legal, to determine if mat-
ters of defense can be developed, and to allow himself time
for reflection and preparation for trial’’ (supra, p. 466).

Accordingly, where the record “‘unequivocally’’ dem-
onstrates a complete lack of investigation or preparation
whatever on the only possible defense available, the lawyer,
far from providing the sort of assistance which the Con-
stitution guarantees to the most lowly defendant, has, in
truth, rendered ‘the trial a farce and mockery of justice’
(People v. Bennett, supra, p. 467; People v. Brown [1960],
7 N.Y. 2d 359, p. 361; People v. Tomaselli [1969], 7 N.Y.
2d 350, p. 354).

37

Tested by the foregoing, it is most respectfully submit-
ted the case against assigned counsel does not ‘‘unequivo-
cally’’ demonstrate ‘‘a complete lack of investigation or
preparation whatever on the only possible defense avail-
able’? (People v. Bennett, supra.).

The Hill Record

Ceasar Hill, Jr., a co-defendant, was tried before appel-
lant, It is apparent appellate counsel is distressed be-
cause the lawyer assigned to represent Wooden at the trial
had not read verbatim the trial minutes of the Hill case.
Hardly anyone does but beyond that, it is clear that what
the assigned lawyer did do for Wooden was much more
important in the eyes of an experienced trial lawyer on
the criminal side of the law.

(1) Trial counsel sat through the identification hearing
in the Hill ease that included the eyewitnesses to the mur-
der, Mrs. Laura Palmer, Robert Hilbert, Theophilus Jones
and Paul Fitzgerald. Also testifying were Deputy Chief
Inspector John Cummings, Detective-Lieutenant George
Maher, Robbery, Detective Gerald Hunter, Homicide, De-
tective Daniel Lannon, Robbery. Eight witnesses testified
at the Hill hearing about the murder, the description of
the marder, the murderers, the time, place, and, in the
ease of the eyewitnesses, their ability or lack of it to make
a positive identification (303-304).

(2) A second defendant, John Banks, also demanded and
separately received a confession hearing which Cohn also
attended. His appearance is noted at the outset of the
trial record in the Banks hearing.

This veteran trial lawyer knew from his initial contacts
with the ease that it was useless to dispute before a judge
and jury that a robbery and murder had taken place. Long
experience including the investigation and preparation of

38

a defense in numerous other murder prosecutions gyg.
gested the weakness in this case, if there was a weakness
from the trial point of view would be identification. It js
clear that by attending the identification hearings in the
case of Hill, and at a different time the confession heari
relating to Banks, Cohn performed a useful function for
his client. They were, after all, the only hearings held
before Wooden’s pre-trial confession hearings commenced,
The Hill-Banks hearings opened up the People’s cage
almost in its entirety for Cohn before the hearing on
Wooden’s confession commenced.

Moreover, an examination of the minutes of trial in
Hill’s case prove conclusively Cohn’s judgment was cor-
rect. It is always more effective to see the witnesses tes-
tifying in person than read about it in print. Furthermore,
the witnesses who testified at the Hill trial, but not the
identification hearing, were technical in nature who gave no
evidence critical to the ‘‘investigation’’ or ‘‘preparation”’
of the defense of Wooden. Thus, Doctors Genilo and
McCarthy (557; 559) were medical examiners. Detectives
Janelli and Lazorcak were from the Scientific Investigating
Bureau of the Nassau County Police Department. William
Holly (589) owned the gun stolen from him by Hill. Betty
Mack (631) was a friend of a third defendant, Willie Smith,
and Leitha Mae Smith was a sister of Willie.

What is controlling is that none of these witnesses at
the Hill trial gave any damaging evidence against Wooden.

The same conclusion is apparent from an examination of
the testimony of Mary Jones (723), a friend of Hill’s. In
fact, she gave no evidence hurting Hill’s case.

Detective-Lieutenant Daniel Guido (727) who inter-
viewed Hill, and Stanley Greenberg (950), a shorthand
reporter, were the remaining two witnesses. Lieutenant
Guido and Greenberg testified to Hill’s confession. They
eave no evidence helpful or harmful to Wooden’s cause.

|
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—_

39

Listening to the trial testimony of these witnesses would
have been a waste of time, almost as bad as reading it. It
is respectfully submitted appellant’s counsel has failed
completely to prove what Irving Cohn would have learned
that he did not know, and which was necessary to the
defense of Wooden if the trial minutes had been read.

Finally, Cohn represented Wooden at the combined
Huntley-Miranda hearings on October 8, 9 and 10, 1969, in
the Nassau County Court before Judge Spitzer. There
were five police witnesses who testified, namely Patrolmen
Gunter and Sefton who arrested Wooden the night of April
28, 1968, for a separate burglary about two months after
the murder. Detective-Lieutenant Daniel Guido, the Com-
manding Officer of the Homicide Squad, was in charge of
the investigation, and he was the principal witness. He
testified to the circumstances of the confession, and was
corroborated by Detectives Lazoreak, Hunter, Lannon and
the stenographer, Donald White.

When the actual trial commenced on March 16, 1970,
Cohn had already been through three extensive pre-trial
hearings conducted in behalf of Hill, Banks and his own
client exploring the critical areas of the case: identifica-
tion and confession. He knew the four eyewitnesses, Mrs.
Laura Palmer, Robert Hilbert, Paul Fitzgerald and The-
ophilus Jones, could not identify his client. Moreover, he
knew precisely the extent, effect and impact of their testi-
mony. Furthermore, trial counsel knew exactly the details
that led to the confession including all of the surrounding
circumstances. To argue as appellate counsel has argued
that Cohn was unprepared is contrary to the facts.

The Visitation Rights

Almost every defendant who is in jail, not Wooden alone,
feels alone and forgotten. It is a traumatic experience for
some including every accused awaiting trial for felony
murder. It is part of every lawyer’s job to visit, consult

—a

and comfort his client for the prisoner’s sake, and not the
attorney’s. Jail house visits are not necessarily for the
benefit of the attorney as appellate counsel seems to think.
They are designed frequently to encourage the accused.

I have no doubt it would have been beneficial for Wooden
if Cohn visited with him at the Nassau County Jail after
the Huntley-Miranda hearing, and before the commence.
ment of the trial once, twice or three times a week, but it
simply doesn’t follow that counsel’s failure so to do proves
or even tends to prove counsel did not ‘‘investigate’”’ and

was not ‘‘prepared’’ to undertake the defense of Wooden
at the trial.

40

The Hill Sentence

Equally specious is the charge that trial counsel did not
know with certainty that Hill had been sentenced to life.
As a matter of fact, Cohn stated he believed a life sentence
was mandatory under the circumstances of this case as it
is (§ 70.00, subd. 2, P.L.; § 125.25, P.L.; § 125.30, P.L.).

It is respectfully submitted Cohn was no more or less
prepared to defend Wooden because he did not memorize
the minimum or know if the robbery was made to run con-
secutive rather than concurrent. It is a matter of common
knowledge that these are details which would loom very
large in the mind of Wooden whose turn has yet to come
but they do not figure in the ‘‘investigation’’ or ‘‘prepara-
tion’’ for trial by a good defense counsel.

It is respectively submitted appellate counsel has failed
completely to demonstrate how Cohn’s failure to learn the

minimum imposed upon Hill prevented him from properly
advising Wooden what was best for him.

Banks’ Guilty Plea

The most naive of all the arguments advanced in support
of the charges leveled against trial counsel relate to Banks.

41

The District Attorney obviously wanted to strengthen his
case against Wooden because Wooden was the shooter. The
case was weak because: (1) the eyewitnesses could not
identify Wooden ; (2) the principal confession was post-
indictment.

The opening of the confession hearing was October 8,
1969, on which date it was uncertain whether the post-
indictment confession would be competent (People v. Lopez
[1971], 28 N.Y. 2d 23, p. 25). Under the circumstances, the
case against Wooden would be a loser if this Court ulti-
mately decided the post-indictment statement was inadmis-
sible as a matter of law.

To protect against a possible miscarriage of justice, the
District Attorney was compelled to bargain with J ohn
Banks to procure his testimony and cooperation in return
for a manslaughter plea. Banks agreed to cooperate and
testified at the trial of Wooden on March 31, 1970 (608; 620
et seq.). After the trial of Wooden was completed, Banks
pled guilty on May 21, 1970, and was sentenced to 0 to 20
years on June 23, 1970.

Appellate counsel naively charges Irving Cohn was in-
competent because he was not privy to the negotiations
between the District Attorney and Banks’ lawyers.

In point of fact, Cohn was not privy to the negotiations
because they were specifically designed by the District
Attorney to overcome the obvious advantage then enjoyed
by Cohn and his client. It is elementary that parties to
an action do not favor their adversaries with privileged
communications.

The obvious danger in this case was occasioned by the
presence of Banks and Wooden in the same Nassau County
Jail. Held along with Willie Smith and Ceasar Hill, Jr.,
all in the same location, it would have been unwise and
unsafe to advise Wooden prior to trial that his chances
of a not guilty verdict would be seriously diminished by the
testimony of Banks.

7g

42

Every experienced District Attorney, Correction Officer,
and defense lawyer knows the extreme danger to life and
limb present when one prisoner testifies against another,
It is pitifully naive not to know that in many cases the
prisoners themselves will be the first to surmise what is
happening when confined in the same institution. In any
event, the failure of Cohn to learn what had happened wag
purposeful on the part of the District Attorney and Banks’
lawyer. That the information was withheld from Cohn
successfully does not establish his inexperience, ignorance
or indifference to his obligations.

Perjury Indictments

The trial of Ceasar Hill, Jr. commenced on November
12, 1969, and concluded on December 4, 1969. Betty Mack,
a 16 year old mother of a child by Willie Smith, was called
to testify that the four defendants were at her home prior
and subsequent to the Sunday morning killing, and Hill
had a gun. Miss Mack first testified consistently with her
Grand Jury testimony but following the noon recess she
recanted, leading to an indictment on January 6, 1970, for
Perjury.

Leitha Mae Smith, a friend of Betty Mack and a sister
of Willie Smith, was also indicted on January 6, 1970, as
a result of her testimony at the [lil trial.

The pre-trial confession hearing in Wooden’s case be-
gan on October 9, 1969, whereas the actual trial commenced
on March 16, 1970, and concluded on April 6, 1970. The
charge is Cohn was incompetent because Wooden learned
of the indictment of Betty Mack and Leitha Mae Smith
before his attorney.

It is natural that Wooden would be the first to know
for the following reasons: (1) there was no duty at the
time on the District Attorney to notify Cohn that two
witnesses at the Hill trial had been indicted for perjury;

43

-

g) there was no legal obligation on Hill’s attorney to
notify Cohn if they knew; (3) there was no legal or moral
obligation on the part of the attorneys for Betty Mack and
[eitha Mae Smith to notify Cohn of the indictments.

It is undisputed both girls were close, personal friends
and in the case of Leitha Mae Smith, a sister of Willie
Smith, one of the four defendants indicted for the mur-
der. It is in this vein that defense counsel must depend
upon his client to keep him abreast of what may be hap-
pening to the other defendants whose interests may be
inconsistent, as well as the police interviews and contacts
with family, friends, acquaintances and possible witnesses.
The client in such case is the primary, if not sole source,
of information regarding the happenings in the immediate
family of the defendant. And this is no disgrace.

Wooden was confined in the Nassau County Jail be-
tween November 12, 1969, and December 4, 1969, when the
perjury took place during a trial of Hill in the Nassau
County Court. Wooden was also in the Nassau County
Jail on January 6, 1970, when the girls were indicted. As
a prisoner, he was well informed regarding the daily hap-
penings in the County Court. He certainly knew Hill had
been convicted of Murder and was confined with him in
the Nassau County Jail awaiting sentence. He also knew
the girls were indicted for Perjury for trying to help their
close, personal friend, Hill. This conclusion is irresistible
because it is a matter of common knowledge information
of this character travels rapidly via the grape vine be-
tween the County Court and the County Jail through the
traffic in prisoners and correction officers. Moreover what
the prisoner does not learn via the lines of normal com-
munication between the jail and the Court House, he ac-
quires from the close, personal friends and relatives who
visit him at the jail.

It is not surprising that Wooden learned about the per-
jury indictment before Cohn. In fact, it is completely

44

consistent with the everyday happenings experienced
throughout the state by veteran trial lawyers like Cohn,
and young inexperienced personnel in a Legal Aid office,

That it might come as news to appellate counsel is be.
sides the point. Psychologically, it might have made
Wooden’s confinement more bearable if Cohn visited the
jail on January 7th and learned from Wooden that the
girls had been indicted the day before, but it has no bear.
ing whatsoever on Cohn’s readiness to go to trial on March
16, 1970.

Furthermore, it is clearly apparent the trial itself jp
this regard was fair (372 et seq.). The District Attorney
for the record advised Cohn and his Assistant Counsel,
Charles Brown, and Wooden personally, that he intended
to call Betty Mack and Leitha Mae Smith, and they were
under indictment for perjury committed at the Hill trial,
The trial judge ruled the District Attorney should aot
bring out the perjury as part of his prima facie case or
direct examination of the witnesses. The information was
made available to the defense for use as they saw fit on
cross-examination.

On direct examination (577 et seq.), Betty Mack gave
no material testimony damaging to Wooden. She was not
cross-examined.

Leitha Mae Smith (591 ef seq.) testified Wooden dis-
cussed robbing the Stationmaster at Mineola in her pres-
ence (596-598), and she admitted when cross-examined by
Wooden that she had lied under oath in the past (603).

It is conceded Cohn knew the girls were under indict-
ment before they testified. As a matter of fact, it must
be admitted Cohn knew the girls were under indictment be-
fore the trial commenced. Under the circumstances of
this case, it is not controlling that the source of the orig-
inal information was Wooden and not an earlier telephone

—

45

call from the District Attorney, counsel for the girls, or
Hill’s lawyers if they knew.

The record of this case has been summarized exten-
sively under the review of the evidence. In particular, that
of the trial record dealing with Wooden’s refusal to
go to trial with Cohn has been cataloged in detail. It shows
dearly and convincingly that Wooden deliberately deter-
mined to try his own case, assisted as he saw fit by Cohn
and Brown, rather than permit Cohn to appear in his own
pehalf. This was Wooden’s constitutional right (Sixth
Amendment, U.S. Const., Art. I, § 6, N.Y.S. Const. ; People
y, Pitman [1st Dept. 1966], 25 App. Div. 2d 637, mod. 18
NY. 2d 919; People v. Davis (2d Dept. 1964], 21 App. Div.
94 681; People v. Gordon [2d Dept. 1959], 8 App. Div. 2d
835, aff'd 7 N.Y. 2d 742; cf. People v. Price [1933], 262
NY. 410, p. 413; People v. Bai [1959], 7 N.Y. 2d 152).

That it was an unwise decision is beside the point. Judge
Spitzer did everything reasonable under the circumstances
to convinee or persuade Wooden it would truly be in
Wooden’s best interest to let Cohn represent him. Ad-
mittedly on the facts of this case Wooden could not be
compelled to accept Cohn and waive his right to defend
himself (United States ex rel. Maldonado v. Denno (2d Cir.
1965], 348 F. 2d 12; ef. United States v. Plattner (2d
Cir. 1964], 330 F. 2d 271; United States v. Bentvena
[2d Cir. 1963], 319 F. 2d 916; United States v. Dennis [2d
Cir. 1970], 183 F. 2d 201, aff’d 341 U.S. 494). The Sixth
Amendment was not designed ‘‘to force an attorney upon a
defendant’? (Adams v. United States [1942], 317 U.S. 269,
p. 279), and neither was Article I, § 6 of the New York State
Constitution (People v. Price [1933], 262 N.Y. 410, p. 413).

Petitioner insists he ‘‘was twice prejudicially denied
his right to confrontation by the testimony of a policeman
and of an accomplice, each of whom testified that the only
eyewitnesses in the case—two other non-testifying accom-

—

withstanding a timely objection and instruction in one jp.
stance, and in the second instance, notwithstanding the
unrepresented petitioner’s failure to object and the court's
instruction given six days later’’ (p. 2).

Apparently the objection relates to the in-court testj.
mony of a conversation between the conspirators as they
ran to the getaway car that petitioner shot the deceased
The objection is clearly without merit (California v. Green,
399 U.S. 149; Dutton v. Evans, 400 U.S. 74).

It is respectfully submitted the writ should not issue be
cause a New York State Court of Appeals did not decide »
federal constitutional question heretofore undetermined by
this court. Moreover, the Court of Appeals has not decided
this case in a way probably not in accordance with any prior
controlling decision of this court.

CONCLUSION
Respectfully submitted,

Wuium Cany
District Attorney, Nassau County
Attorney for Respondent
Heway P. DeVixe
Assistant District Attorney
of Counsel

Hox. Hanon M. Sprrzen, County Judge.

——
Prortz or tHe Stare or New York

agatnst

Wusitam Wooves,
Defendant.

—O—

Hox. Wims Canx, District Attorney, Nassau
County, Mineola, New York.

luvise Conus, Esq., Attorney for Defendant, 278 Old
Country Road, Mineola, N. Y.

Cuartes P. Browns, Esq., Attorney for Defendant, 93
Page Lane, Westbury, N.Y.

A Huntley-Miranda hearing was held concerning the
admissibility of certain oral and written statements made
by the defendant William Wooden after his arrest, follow-
ing his indictment and prior to his arraignment.

2a
Appendiz A

On March 12, 1968, the defendant, together with
was indicted by the Grand Jury of Nassau County for the
crimes of Murder, Robbery and Grand Larceny, arising out
of the alleged robbery and killing of a ticket agent at the
Long Island Railroad Station at Mineola on February 18,
1968.

The Court makes the following Findings of Facts and
Conclusions of Law (Code of Crim. Pro. Sec. 813-f, ete.)

On April 28, 1968, at or about 8 p.m., Patrolman Lin.
wood Gunter and Robert Sefton, of the Nassau County
Police Department, while on patrol car duty, received
radio call that an alarm was ringing at A to Z Equipment
Co. They proceeded to the site of the alarm. Patrolman
Sefton noticed the defendant, whom he knew was wanted
in connection with the Mineola murder, coming out of the
building. The defendant, upon seeing the patrolman, fied.
Shortly thereafter, both patrolmen apprehended the de-
fendant. Patrolman Gunter advised him that he was under
arrest and advised him of his constitutional rights as
mandated by Miranda v. Arizona, 384 U.S. 436.

The defendant was then placed in a patrol car and
Patrolman Sefton gave him the Miranda warnings. No
questions were asked the defendant in the patrol car, but
the defendant volunteered that he was going to give him-
self up anyway. At the Third Precinct Station House, at
8:30 p.m., the patrolman turned the defendant over to
Detective Lazoreak and Detective Lieutenant Guido. At
no time while the defendant was in the custody of the
patrolmen was any request made by the defendant for an
attorney.

Detective Lieutenant Guido, in an office on the second
floor of the station house, informed the defendant that he
wanted to ask him some questions, advising him that he
had been indicted for Murder in connection with the killing
at the Mineola Railroad Station, and that he wanted to

3a
Appendiz A

explain his rights. The defendant interrupted stating that
he knew his rights. Guido proceeded to inform him that
he did not have to answer any questions at all, that he could
remain completely silent, that if he did decide to answer
any questions or to talk, then anything he did say could
be used in evidence against him in court, That he had
a right to have an attorney present, that he had a right
to talk to that attorney, see the lawyer before he decided
whether he wanted to answer any questions or not, and
that if after having spoken to that lawyer he decided he did
not want to talk, that he could have a lawyer with him
during that whole time. That if he could not afford a
lawyer, that an attorney would be appointed for him by
the Court and that he would not ask the defendant any

ions until that time. The defendant stated he under-
stood and that it did not make any difference, he was going
to get life or 60 years, and that there were three in the
same family against him. The defendant wanted to know
what the other defendants told the police, and Guido in-
formed him that they said he did the shooting.

Guido again asked, knowing his rights, whether he was
willing to talk without an attorney being present or with-
out talking to an attorney, to which the defendant replied
he would talk, whereupon Wooden orally gave details im-
plicating himself in the Mineola murder-robbery. Guido’s
talk with the defendant took approximately 15 minutes.

After Guido left, the defendant was offered coffee. De-
tective Lazoreak advised him of his rights as required by
Miranda by reading the same from a card (People’s Ex-
hibit 3). The defendant then indicated he wanted to talk,
whereupon the detective questioned him concerning the
alleged Mineola robbery and murder, the detective doing
the typing during the interrogation. At or about 10 p.m.,
Detectives Hunter and Lannon arrived and Detective
Hunter took over the typing. At the completion of the
questioning, the defendant read the six page statement,

.

4a
Appendiz A

admitted to its truth, initialled some corrections and signed
it. (People’s Exhibit 4.) The defendant at no time ro.
quested an attorney during the interrogations. He was
handeuffed to a chair but was never hit, threatened oy
coerced during that time. After the statement was gj

at about 1 a.m., Detective Hunter took the defendant into
the C.O.’s office where Assistant District Attorneys Johp
Lewis, Marvin Wolf and a stenotype reporter, Donald J.
White, were present. Once again Wooden was advised
of his constitutional rights. Mr. Lewis advised him that
he did not have to talk about what happened, that he had
a right to remain silent, that anything he said could be
used in evidence against him, and that he had a right
to have an attorney represent him, and if he could not
afford an attorney, at the proper time the Court would
appoint one for him and all questions would cease until
that time. Wooden gave an affirmative answer to Mr.
Lewis’ query whether he understood each of these rights
and he stated that he wanted to talk. Mr. Lewis ques-
tioned the defendant from about 1:45 a.m. until 2:15 am.
while Mr. White recorded the same on his stenotype ma-
chine. Mr. White subsequently transcribed his steno-
graphic notes into typewritten form (People’s Exhibit 12).
At about 2:30 a.m., the defendant was taken to Police
Headquarters and put into detention.

The Court is called upon to resolve the question of
whether the post-indictment statements made by the de-
fendant, William Wooden, would be admissible upon his
trial.

The defense contends that the interrogation of the de-
fendant was impermissible inasmuch as it was obtained
after he was indicted and without the benefit of an attorney
being present. It has been said ‘‘ Any secret interrogation
of the defendant, from and after the finding of an indict-
ment, without the protection afforded by the presence of
counsel, contravenes the basic dictates of fairness in the
conduct of criminal causes and the fundamental rights of

5a
Appendix A
persons charged with crime’”’ (People v. Waterman, 9 N.Y.
9d 561).

These fundamental rights are guaranteed by U.S. Const.
6th Amend.; N.Y. Const. Art. I, See. 6 and the Code of
Crim. Pro. Sec. 8. Nevertheless, the right to counsel also
imports the right to refuse counsel and a defendant may
effectively waive his right to counsel, People v. Bodie,
16 N.Y. 2d 275; People v. Stephen J.B., 23 N.Y. 2d 611.

In Miranda v. Arizona, U.S. 436, 479, the highest tri-
bunal of this land stated:

‘‘ After such warnings have been given, and such
opportunity afforded him, the individual may know-
ingly and intellingently waive these rights and agree
to answer questions or make a statement”’.

In People v. Bodie (supra) p. 278-279, the Court stated:

‘““If this case merely contained an inculpatory
statement made in the absence of counsel after an
information had been filed, we would be compelled
to hold that the statement is inadmissible, because no
valid distinction may be made between a_post-
indictment and a post-information statement (People
v. Santmyer, 20 A D 2d 960; People v. Fleischmann,
43 Mise. 2d 200, 202; see, also, People v. Meyer, 11
N Y 2d 162; People v. Waterman, 9 N Y 2d 561).
However, since the right to counsel also imports the
right to refuse counsel, we hold that a defendant may
effectively waive his right to an attorney (cf. People
v. Meyer, 11 N Y 2d 162, 165). Up to this point the
minority would agree. However, our paths diverge
on the pivotal issue, viz., whether the police should
be held, as a matter of law, to be incapable of warn-
ing a defendant of his rights. Those Judges who
would require the police to inform defendant of this
right recognize the capability of the police to advise
a defendant of his right to an attorney (see, e.g.,
People v. Gunner, 15 N Y 2d 226, 233; People v.
Dorado, 62 Cal, 2d 338, 347-347). An exclusionary
rule of the nature advocated by the minority is un-
warranted and unrealistic. Nothing has been brought
to our attention to warrant such a conclusion; ...’’

6a

Appendia A

The interrogation of the defendant was custodial ang
the Miranda warnings were required. This Court is of
the opinion that the People have proven beyond a reagon.
able doubt that Patrolmen Gunter and Sefton, Lieutenant
Detective Lazorcak and Assistant District Attorney Lewis
did advise the defendant of his constitutional rights 2,
mandated by Miranda.

The Court concludes further that the People have met
the heavy burden of proving waiver, Johnson v. Zerbst,
304 U.S. 458. It is evident from the totality of the circum.
stances that the defendant understood the warnings and
intelligently, knowingly and voluntarily waived his rights,

The Court further finds, beyond a reasonable doubt, that
the admissions, statements and confessions made by the
defendant were free of any taint or impropriety and that
they were not induced by force, fear, coercion, promise
or by any improper methods and that they were given
voluntarily by the defendant and, therefore, properly ad-
missible at the trial.

Accordingly, it is

OrpERED, that the defendant’s motion is denied in all
respects, and it is further

OrpeneED, that there be no publication of this decision or
any part thereof prior to the case being submitted to the
Jury or until the indictment is otherwise disposed of.

Enter
Harotp M. Sprrzer
J.C.C.

Granted, January 8, 1970—Harold W. McConnell, Clerk.
Entered, February 16, 1970—Harold W. McConnell,
Connty Clerk of Nassau County.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1648%3A1. Public record. Not legal advice.