Opposition Brief — Condado Plaza Hotel & Casino v. Casino Employees Ass'n

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No. 92-401

oe ba

In The

Supreme Court of the United States

October Term, 1992

e

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

THOMAS OSES,

Respondent.

+

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

°

RESPONDENT'S BRIEF IN OPPOSITION

¢

STEPHEN B. DEUTSCH

Counsel of Record

ANTHONY MIRENDA

Fotey, Hoac & ELiort

One Post Office Square

Boston, MA 02109

(617) 482-1390

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

— —_- —

BEST AVAILABLE COPY!

See ‘

QUESTIONS PRESENTED

1. Whether the District Court and the United States

Court of Appeals for the First Circuit correctly concluded,

on the basis of their review of the state appellate record,

that respondent had exhausted state remedies as to the

federal constitutional claims presented in his petition for

a writ of habeas corpus.

2. Whether the District Court and the United States

Court of Appeals for the First Circuit properly deter-

mined, based upon substantial evidence in the record,

that the conduct of respondent’s state trial deprived him

of his Sixth Amendment right to represent himself.

li

TABLE OF CONTENTS

Page

CHUESTIUNS PRESGINTBLD 2c. ievciandducsascawenens i

TASLE OF AUTIAIRITIGS «oie ccycksceanenaunus ese iii

STATEMENT OF THE CARE. 2.00 ccs ee ectenanca xcs 1

FTOOT PROCWOCUNRE os 506s cena eae ee 2

PRES ok oo ees 4450 ek Oe eee ee ee 4

REASONS FOR DENYING THE WRIT............. 4

I. THE COURTS BELOW CORRECTLY CON-

CLUDED, ON THE BASIS OF THEIR REVIEW

OF THE STATE APPELLATE RECORD, THAT

RESPONDENT HAD EXHAUSTED STATE

REMEDIES AS TO THE FEDERAL CONSTITU-

TIONAL CLAIMS PRESENTED IN HIS PETI-

TION FOR A WRIT OF HABEAS CORPUS.... 5

Il. THE COURTS BELOW PROPERLY DETER-

MINED, BASED UPON SUBSTANTIAL EVI-

DENCE IN THE RECORD, THAT THE

CONDUCT OF RESPONDENT'S STATE TRIAL

DEPRIVED HIM OF HIS SIXTH AMENDMENT

RIGHT TO REPRESENT HIMSELF............. 9

A. The exclusion of Mr. Oses from bench and

lobby conferences interfered with his right

to represent RAMEE. 6 co 6 nc cies cigs ees 11

B. The imposition of physical restraints on Mr.

Oses in front of the jury interfered with his

right to represent Rigneell. ......... 6.4555... 13

C. Sarcastic and prejudicial comments inter-

fered with Mr. Oses’ right to represent him-

WOE nos 5 0s vo rece oe eee ee ee 14

lil.

dl

TABLE OF AUTHORITIES

Page

CASES:

Amadeo v. Zant, 486 U.S. 214 (1988) ................. 10

Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978) ...... 13

Castille v. Peoples, 489 U.S. 346 (1989) ................ 6

Faretta v. California, 422 U.S. 806 (1975) ......... passim

Graver Tank & Mfg. Co. v. Linde Air Products Co.,

Dg El ) Soe 5

Illinois v. Allen, 397 U.S. 337 (1970) ....... cee ee oe

McKaskle v. Wiggins, 465 U.S. 168 (1984) | . passim

Mele v. Fitchburg District Court, 8£ F.2d 817 (1st

Cir. 1988), rev'd on other grounds, 884 F.2d 5 (1st

Gn eg ae 6, 8

Picard v. Connor, 404 U.S. 270 (1971) ... Serre . 6

STATUTES AND RULEs:

SE ORE >.” : Pe atek yen Cee

Supreme Court Rule 10....... mR bon oh ch a ene ae

No. 92-401

o

In The

Supreme Court of the United States

October Term, 1992

*

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

THOMAS OSES,

Respondent.

———-—-— a

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

a o—

RESPONDENT'S BRIEF IN OPPOSITION

fe —_

The respondent Thomas Oses respectfully requests

this Court deny the Commonwealth's Petition for a Writ

of Certiorari.

STATEMENT OF THE CASE

On October 7, 1991, the United States District Court

for the District of Massachusetts (Woodlock, J.) granted

Thomas Oses’ petition for a writ of habeas corpus, find-

ing his Massachusetts Superior Court trial to have been

conducted in a manner that thwarted any meaningful

|

2

exercise of his Sixth Amendment right to represent him-

self. Appendix B:30-81.!

The district court based this conclusion on its find-

ings that the trial judge: (1) unjustifiably excluded Mr.

Oses from bench and lobby conferences, Appendix

B:57-61; (2) abdicated his responsibility for exercising

oversight over the imposition physical restraints, includ-

ing manacles, leg-irons and a gag, on the pro se defendant

in front of the jury, Appendix B:62-69; and (3) made

repetitive demeaning and derogatory comments in front

of the jury ridiculing Mr. Oses’ efforts at presenting his

defense, Appendix B:69-78. The district court also found

that the prosecutor improperly denigrated Mr. Oses and

his pro se defense. Appendix B:78-80. The pervasive viola-

tion of Mr. Oses’ Sixth Amendment rights compelled the

district court to grant Mr. Oses’ petition for a writ of

habeas corpus. The court of appeals, “[a]fter a careful

examination of the record,” upheld the district court’s

findings of fact, substantially adopted its conclusions and

affirmed its decision. Appendix A:5-9. The Common-

wealth now seeks review of that decision in this Court.

Prior Proceedings

After a twenty-three day jury trial, on July 8, 1977,

Thomas Oses and co-defendant William Sheppard were

' The Appendix to the Commonwealth's Petition for a Writ

of Certiorari is cited by letter and, where appropriate, by page

(e.g., Appendix A:3). The transcripts of state court proceedings

are cited by volume number and page (e.g., Tr. II:3).

found guilty of armed assault in a dwelling and kidnap-

ping. Mr. Oses’ direct appeal, in which he argued among

other things that his Sixth Amendment right to represent

himself had been violated, did not reach the Massa-

chusetts Appeals Court until 1988.2 The Massachusetts

Appeals Court affirmed his convictions in an

unpublished Memorandum and Order. Appendix C. Mr.

Oses sought further appellate review on all issues from

the Massachusetts Supreme Judicial Court, but his appli-

cation was denied on February 1, 1989. 404 Mass. 1101

(1989).

Proceeding pro se, Mr. Oses filed a petition seeking a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 on

March 3, 1989 and, shortly thereafter, the district court

appointed counsel to assist him. Both parties submitted

memoranda and the district court heard argument in

October, 1989. On October 7, 1991, the district court

granted the petition, issuing a fifty-seven page memoran-

dum opinion. Appendix B. The Commonwealth appealed,

and on April 15, 1992, the Court of Appeals for the First

Circuit affirmed the district court’s decision. Appendix A.

The Commonwealth's petition for rehearing and rehear-

ing en banc was denied on June 1, 1992. Appendix D. The

Commonwealth filed this Petition for a Writ of Certiorari

(“Commonwealth's Petition”) on August 31, 1992.

2 Mr. Oses claimed an appeal on July 19, 1977. The reason

for the extraordinary delay is not apparent from the record and

is not at issue in this proceeding. The procedural chronology is

set forth in the district court’s opinion. Appendix B:19-20 n.9.

The court of appeals noted that it was “clear” that the delay was

not the fault of Mr. Oses. Appendix A:11.

Facts

The relevant facts are described at length in the dis-

trict court’s comprehensive opinion and are briefly sum-

marized in the court of appeals’ per curiam decision. The

district court and the court of appeals found that three

sets of errors occurring at Mr. Oses’ trial violated his

Sixth Amendment right to represent himself — the trial

judge’s unjustifiable exclusion of Mr. Oses from bench

and lobby conferences; the imposition on the pro se defen-

dant of various physical restraints, in front of the jury,

without “any oversight whatever” by the trial judge and

without inquiry into less restrictive measures; and the

trial judge’s and the prosecutor’s sarcastic, demeaning

the prejudicial comments directed at Mr. Oses and his pro

se defense. Appendix B:30-81; Appendix A:5-8.

+

REASONS FOR DENYING THE WRIT

The per curiam decision of the court of appeals, and

the thorough and careful decision of the district court

that it affirms, apply established precedent of this Court

to the facts of this case. The lower courts resolved no

novel issues. The decisions below are fully consistent

with this Court’s decisions and with existing precedent

both in the First Circuit and the other federal courts of

appeals. The Commonwealth has pointed to no “special

and important reasons” favoring review, and none of the

considerations set forth in Supreme Court Rule 10 are

implicated.

The essence of the Commonwealth’s Petition is a

disagreement with the factual determinations upon which

ga

the court of appeals and district court decisions are

based. The bulk of the Commonwealth’s Petition is

devoted to rearguing its version of the facts. Those facts

were resolved against it, first by the district court and

again “after a careful examination of the record” by the

court of appeals.* Those factual determinations are amply

supported by substantial evidence in this voluminous

record. See Graver Tank & Mfg. Co. v. Linde Air Products

Co., 336 U.S. 271, 275 (1949) (“A court of law, such as this

Court is . . . cannot undertake to review concurrent

findings of fact by two courts below in the absence of a

very obvious and exceptional showing of error”). There-

fore, the Commonwealth’s Petition should be denied.

I. THE COURTS BELOW CORRECTLY CONCLUDED,

ON THE BASIS OF THEIR REVIEW OF THE STATE

APPELLATE RECORD, THAT RESPONDENT HAD

EXHAUSTED STATE REMEDIES AS TO THE FED-

ERAL CONSTITUTIONAL CLAIMS PRESENTED

IN HIS PETITION FOR A WRIT OF HABEAS

CORPUS.

After careful review of the state appellate record, the

district court found that “the state courts were accorded a

3 To examine but one example, the Commonwealth makes

the factual assertion that although Mr. Oses was excluded from

bench and lobby conferences, he was provided with a “tran-

script of everything that occurred” during such conferences.

Commonwealth’s Petition at 8. This is simply not true. The court

of appeals identified over seventy such conferences. Appendix

A:6. The transcripts in the record that were actually provided to

Mr. Oses at trial (more than two weeks after the commencement

of the trial) reflect but a small fraction of that number. Tr.

X11:18-19.

fair opportunity to confront the substance of Oses’ fed-

eral claims” and therefore that Mr. Oses had satisfied the

exhaustion requirement of 28 U.S.C. § 2254. Appendix

B:29. The court of appeals affirmed “substantially for the

reasons set out on [sic] the district court’s thorough opin-

ion... . ” Appendix A:5.

The courts below made no errors of law, nor were

they called upon to rule on any novel issues in reaching

this conclusion. Their decisions reflect only the applica-

tion of settled principles of law to the facts found by the

district court. The district court correctly recognized the

governing principle that the exhaustion doctrine is satis-

fied “ ‘once [the] federal claim has been fairly presented

to the state courts.’ Castille v. Peoples, 489 U.S. 346, 351

(1989) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).”

Appendix B:26. Furthermore, the district court under-

stood that a claim must have been presented to the high-

est court of the state in order for exhaustion to be found.

Appendix B:25, citing Mele v. Fitchburg Dist. Court, 850

F.2d 817, 819 (1st Cir. 1988), rev’d on other grounds, 884

F.2d 5 (ist Cir. 1989).

The Commonwealth’s suggestion in its Petition that

the lower courts “improperly relaxed” existing exhaus-

tion requirements does not fairly characterize either the

decisions of the lower courts or the facts as found by

those courts. Based on a careful review of the state appel-

late record, including Mr. Oses’ brief to the Massachusetts

Appeals Court, the Appeals Court’s opinion, and Mr.

Oses’ Application for Further Appellate Review, the

courts below correctly determined that Mr. Oses’ claim of

a violation of his Sixth Amendment right to represent

himself was fairly presented to the Massachusetts

~

Appeals Court and Supreme Judicial Court and that the

exhaustion requirement therefore was fully satisfied.

The district court found that although Mr. Oses did

not rely “exclusively on a claim of denial of self-represen-

tation under Faretta v. California, 422 U.S. 806 (1975) and

McKaskle v. Wiggins, 465 U.S. 168 (1984) . . . that is

essentially what he argued to the [Massachusetts]

Appeals Court on pages 26-27 of his brief to that

court. ...” The district court then quoted at length from

Mr. Oses’ brief to the Massachusetts Appeals Court

Appendix B:31-32. The district court concluded that the

“effect of these arguments by Oses, including his reliance

on the precise federal constitutional precedent on point,

was to alert the state court to the federal nature of his

claims. .. . ” Appendix B:33.

The district court then observed that the Massa-

chusetts Appeals Court plainly recognized the federal

quality of the claim as the state court discussed each of

the circumstances Mr. Oses relied upon “at length” in

light of applicable federal constitutional law. Appendix

B:33-34 and n.13. There can be no doubt that the district

court was correct - the Massachusetts Appeals Court

devoted eight pages of its opinion to a discussion of Mr.

Oses’ Sixth Amendment self-representation claim.

Appendix C:13-27. The Massachusetts Appeals Court

focussed specifically on this court’s decisions in Faretta v.

California, 422 U.S. 806 (1975), and McKaskle, v. Wiggins,

465 U.S. 168 (1984), in light of specific aspects of the

conduct of the trial: exclusion from conferences (Appen-

dix C:18-19); physical restraints (Appendix C:19-21); and

improper and derogatory comments by the trial judge

and the prosecutor (Appendix C:21-22)

The district court then reviewed Mr. Oses’ applica-

tion for further appellate review to the Massachusetts

Supreme Judicial Court (“SJC”), finding that every issue

Mr. Oses presented to the Appeals Court was presented

to the SJC as well,* including his claim that his right to

represent himself had been violated. The district court

stated:

In his application to the SJC for Further Appel-

late Review, Mr. Oses presented the identical list

of claimed violations of his rights. He engaged

in the same factual discussion of each of the four

factors he believed deprived him of his ability to

represent himself properly in the eyes of the

jury. See Defendant’s Further Appellate Brief at

9-13. As with the Appeals Court, the SJC

received sufficient notice from the Application

for Further Appellate Review. See Mele, 850 F.2d

at 820-821.

Appendix B:36 n.14.° Accordingly, the district court prop-

erly concluded that Mr. Oses had exhausted state

4 The eight “Questions Presented” to the SJC in Mr. Oses’

Application for Further Appellate Review were taken almost

verbatim from the eight “Questions Presented” in his brief to

the Massachusetts Appeals Court.

> The very purpose of the Massachusetts practice of

appending the Appeals Court opinion to an Application for

Further Appellate Review is so that the SJC may weigh the

applicant’s arguments on the issues listed in the Application

against the Appeals Court's rationale on those issues. Mele, 850

F.2d at 822. As Mr. Oses raised every issue to the SJC that had

been argued to the Appeals Court, the SJC considered the entire

Appeals Court opinion, including the extensive discussion of

the claimed violation of his Sixth Amendment right to represent

himself.

remedies with respect to the Sixth Amendment claim, and

the court of appeals properly affirmed that decision.

Il. THE COURTS BELOW PROPERLY DET! ? MINED,

BASED UPON SUBSTANTIAL EVIDENCE IN THE

RECORD, THAT THE CONDUCT OF RESPON-

DENT’S STATE TRIAL DEPRIVED HIM OF HIS

SIXTH AMENDMENT RIGHT TO REPRESENT

HIMSELF.

The Sixth Amendment confers on a defendant the

right to personally conduct his own defense. Faretta v.

California, 422 U.S. 806, 819 (1975); McKaskle v. Wiggins,

465 U.S. 168, 179 (1984). Although a court is permitted to

appoint stand-by counsel “to aid the accused if and when

the accused requests help,” Faretta v. California, 422 U.S. at

834 n.46 (emphasis supplied), it is fundamental to that

right that the court may not supplant a defendant who

elects to represent himself with a lawyer he does not

want: .

The language and spirit of the Sixth Amend.

ment contemplate that counsel, like the other

defense tools guaranteed by the Amendment,

shall be an aid to a willing defendant — not an

organ of the State interposed between an unwill-

ing defendant and his right to defend himself

personally. To thrust counsel upon the accused,

against his considered wish, thus violates the

logic of the Amendment. In such a case, counsel

is not an assistant, but a master; and the right to

make a defense is stripped of the personal char-

acter upon which the Amendment insists.

Id., at 820.

10

The right to appear pro se and present one’s own

defense in one’s own words affirms the dignity and

autonomy of the accused. McKaskle v. Wiggins, 465 U.S. at

176-177. As this Court has observed: “From the jury’s

perspective, the message conveyed by the defense may

depend as much on the messenger as on the message

itself.” McKaskle, 465 U.S. at 179. The right to proceed pro

se is undermined by conduct that tends to destroy the

jury’s perception that the defendant is in fact represent-

ing himself. McKaskle, 465 U.S. at 177. It is also under-

mined by conduct, be it on the part of the trial judge, the

prosecutor or stand-by counsel, that ridicules, demeans

or diminishes the pro se defendant's efforts in the eyes of

the jury. In this case, the district court and the court of

appeals properly concluded that the conduct of Mr. Oses’

trial effectively frustrated Mr. Oses’ attempt to defend

himself, depriving him of his Sixth Amendment rights.

The factual underpinnings of the district court and

court of appeals decisions may not be disregarded absent

clear error. Amadeo v. Zant, 486 U.S. 214, 223 (1988). The

district court kept Mr. Oses’ petition under advisement

for two years, during which time the court carefully and

thoroughly reviewed more than thirty volumes of pretrial

and trial transcripts. Indeed, the district court judge

wrote that he “read and reread this record . . . to ‘relive

the whole trial imaginatively.’ ” Appendix B:101. Based

on that review, the district court found numerous

instances of misconduct and prejudicial error that evisce-

rated Mr. Oses’ efforts to exercise his Sixth Amendment

right to represent himself. The court of appeals, “[a]fter a

careful examination of the record [upheld] the district

court’s findings of fact... .” Appendix A:9 (footnote

1]

omitted). These factual findings cannot now be disre-

garded, and they provide ample, indeed, overwhelming

justification for denying this Petition.

A. The exclusion of Mr. Oses from bench and

lobby conferences interfered with his right to

represent himself.

At the outset of trial Mr. Oses moved to be permitted

to participate in bench and lobby conferences. The trial

judge denied this motion, stating that he did not intend to

have any such conferences. Contrary to his assurance,

however, the trial judge in fact held more than seventy

such conferences, outside of Mr. Oses’ presence, through-

out the course of the trial. From the very first such

conference, vital trial issues — including the adequacy and

make-up of the jury, evidentiary issues, security matters,

identification of witnesses, the relationship between

stand-by counsel and defendants and their ability to rep-

resent themselves — were discussed, in private, by the

trial judge, the prosecutor and stand-by counsel. Appen-

dix A:6; Appendix B:57-61.

As a result, Mr. Oses was denied the opportunity to

speak in his own defense on the issues discussed at the

bench and lobby conferences. To this extent, Mr. Oses was

completely supplanted by standby counsel whom he had

explicitly rejected and clearly did not trust. In addition,

Mr. Oses was denied the right to be perceived as defend-

ing himself before the jury at the bench conferences. See

McKaskle v. Wiggins, 465 U.S. at 184. Lastly, the exclusion

of Mr. Oses from these conferences created a situation in

which the trial judge’s frequent demeaning and sarcastic

12

criticisms of Mr. Oses inevitably occurred in the presence

of the jury, further eroding Mr. Oses’ effort to represent

himself.

McKaskle explicitly precludes the imposition of stand-

by counsel as a replacement for a defendant who wishes

to represent himself. “[T]he pro se defendant is entitled to

preserve actual control over the case he chooses to pre-

sent to the jury. This is the core of the Faretia right. If

standby counsel’s participation over the defendant’s

objection effectively allows counsel . . . to speak instead of

the defendant on any matter of importance, the Faretta

right is eroded.” McKaskle v. Wiggins, 465 U.S. at 178.

In this case, contrary to the mandate of McKaskle, the

judge not only permitted stand-by counsel to control

certain aspects of Mr. Oses’ defense, but he actually

excluded Mr. Oses from participation on these matters,

without even an inquiry as to whether Mr. Oses would be

disruptive or dangerous at such conferences. Although a

judge may terminate self-representation upon findings

that the defendant deliberately engages in serious and

obstructionist misconduct, Illinois v. Allen, 397 U.S. 337,

343 (1970), the judge in this case made no such findings

before he decided categorically to exclude Mr. Oses from

these conferences. Indeed, prior to and at the time the

trial judge excluded Mr. Oses from such conferences, the

record reveals no conduct by Mr. Oses that could fairly

justify this exclusion.

Moreover, there was no attempt on the part of the

court to even investigate, much less adopt, any less dras-

tic alternative. “Where constitutional rights of the

accused are at stake, including the right to be present, a

13

trial court must look for corrective measures that do least

injury to these rights consistent with the preservation of

an orderly court atmosphere.” Badger v. Cardwell, 587 F.2d

968, 975 (9th Cir. 1978) (reversible error to expel pro se

defendant for mere interruptions and argumentative-

ness).

B. The imposition of physical restraints on Mr.

Oses in front of the jury interfered with his

right to represent himself.

On various occasions, in the presence of the jury, Mr.

Oses was shackled with leg irons or wrist manacles and

gagged. From the beginning of the trial the trial judge

completely abdicated his responsibility for exercising any

Oversight over the security methods employed. Appendix

A:7; Appendix B:62-69. For example, as the district court

found the trial judge’s decision to impose a gag on the

defendant was “not a measure of last resort, but an

expedient. ... ” Appendix B:67. The judge conducted no

inquiry and made no attempt to devise any less restric-

tive means of insuring security that would have been

more consistent with Mr. Oses’ fundamental right to pre-

sent his own defense. Compare Illinois v. Allen, 397 U.S. at

359-360. The judge did not even give the appropriate

cautionary instructions in his closing charge to the jury.

Appendix A:6-7; Appendix B:62-69.

The obvious impact of the trial judge’s decision was

concisely stated in Illinois v. Allen:

Not only is it possible that the sight of shackles

and gags might have a significant effect on the

jury’s feelings about the defendant, but the use

14

of this technique is itself something of an affront

to the very dignity and decorum of judicial pro-

ceedings that the judge is seeking to uphold.

397 U.S. at 344. As the district court accurately observed,

“{t]hose insistent possibilities of jury prejudice and

affront to the dignity and decorum of the judicial pro-

ceeding were realized here.” Appendix B:67. The attitude

of the trial judge, perhaps rooted in his previously articu-

lated displeasure with (indeed, hostility toward) having

to abide by applicable constitutional principles as defined

by higher courts,® further destroyed Mr. Oses’ attempts to

effectively exercise his Sixth Amendment rights.

C. Sarcastic and prejudicial comments interfered

with Mr. Oses’ right to represent himself.

The district court found the record “replete with

verbal improprieties demeaning the pro se defense and

identified a half-dozen representative examples. Appen-

dix B:70. The trial judge frequently addressed Mr. Oses in

sarcastic and prejudicial terms in front of the jury. The

judge also made fun of Mr. Oses’ language and suggested

that Mr. Oses was “distasteful” to look at. The judge

pointedly belittled Mr. Oses’ efforts, suggesting to the

jurors that they had no interest in Mr. Oses’ cross-exam-

ination. As the district court observed, “it is apparent that

the jury would discount much of what [Mr. Oses] was

© The trial judge’s stated attitude toward the appellate pre-

cedent protecting the exercise of a defendant’s Sixth Amend-

ment right to represent himself is quoted at length in the district

court’s decision. Appendix B:81-82 n.27 (“I don’t know what

appellate judges are thinking when they make these rulings.”)

15

saying when the judge was constantly instructing the

defendant to shut up.” Appendix B:71 n. 24.

Moreover, these comments were made in such a man-

ner as to give the jury the impression that the judge

harbored contempt for Mr. Oses, thus improperly eroding

Mr. Oses’ creditability and the credibility of his defense

in front of the jury. Although the Commonwealth has

apparently abandoned what the district court found to be

its “disingenuous characterizations of [the trial judge’s]

remarks as ‘indecorous,’ ‘droll,’ and ‘conversational,’ ”

Appendix B:73-74, the Commonwealth does contend, at

least implicitly, that the improper sarcasm and ridicule is

justifiable because Mr. Oses had “difficulty” adhering to

the rules of evidence and interjected comments during

the questioning of witnesses. This, however, can provide

absolutely no justification for the ridicule, sarcasm, and

contempt to which he was subjected.

As the district court observed, “the repetitive quality

and substantive character of [the trial judge’s] commen-

tary drove home a clear message to the jury — and indeed

all exposed to the trial proceedings: the trial judge was

not impartial.” Appendix B:77. Such commentary eviscer-

ated Mr. Oses’ effort to represent himself before the jury,

depriving him of his constitutional rights. As the district

court stated, “[f]rom the jury’s perspective, the trial

judge’s actions could only be interpreted as a wholesale

judicial rejection of the validity of Oses’ pro se defense.”

Appendix B:69-70. Essentially, the district court found

that “the trial judge had determined . . . that the manner

and substance of [Mr. Oses’] defense was unworthy of

either respect or belief.” Appendix B:78.

16

In addition to the repeated improper conduct of the

trial judge, Mr. Oses also was subjected to demeaning

comments and improper conduct by the prosecutor in

front of the jury. The trial judge, plainly insensitive to the

effect that such comments had on Mr. Oses’ right to

represent himself, did nothing (certainly nothing ade-

quate) to stop this conduct. Appendix B:78-80. The fre-

quency of such sarcastic and critical comments inevitably

gave the jury the impression that Mr. Oses was dishonest,

truculent and dangerous. By unnecessarily maligning him

at every opportunity, and engaging in improper and prej-

udicial melodrama regarding the handling of a gun

exhibit, Appendix B:79-80, the prosecutor undermined

Mr. Oses’ effort to exercise his Sixth Amendment right to

represent himself.

It is not enough to say, as the Commonwealth does,

that because Mr. Oses was permitted to file motions and

question witnesses his Sixth Amendment rights were

unimpaired. See McKaskle v. Wiggins, 465 U.S. 168, 178

(1984). Although the jury may have perceived that Mr.

Gses was representing himself to some extent, they also

could not help but perceive that the trial judge and the

prosecutor ridiculed his efforts, that he was kept in

chains, and that when the “lawyers” participated in dis-

cussions with the judge at the side bar, Mr. Oses was

excluded. The district court correctly concluded that the

combined effect of these incidents effectively deprived

Mr. Oses of his right to represent himself.

As the district court wrote:

Provisions for the federal writ of habeas corpus

would be hollow if a proceeding such as this

trial of the petitioner were permitted to stand.

17

When, as here, the trial judge consistently

undermines the teachings of Faretta by his con-

duct infects the trial with fundamental unfair-

ness, the writ is required irrespective of the

consequences.

Appendix B:102.

CONCLUSION

For the foregoing reasons, the petition for writ ot

certiorari does not present any question warranting the

Court’s review, and this Court should deny the petition

Respectfully submitted,

THOMAS OSES

By his attorneys,

STEPHEN B. Drutscr

Counsel of Record

ANTHONY MIRENDA

Fotey, Hoac & Etiot

One Post Office Square

Boston, Massachusetts 02109

(617) 482-1390