Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79-C-3237 -- James B. Moran, Judge.
Pell and Fairchild, Circuit Judges, and Myron L. Gordon,*fn* District Judge. Pell, Circuit Judge, concurring and dissenting.
This is a habeas corpus action in which both the petitioner and the respondents cross appeal from the judgment of the district court. The petitioner appeals from the district court's findings that the petitioner was not deprived of his sixth amendment right to counsel at trial and that the petitioner was not entitled to a hearing on his allegation of prejudice on the part of the trial judge. The respondents appeal from the finding of the district court that the petitioner's sixth amendment right to counsel was violated at sentencing.
The petitioner was arrested on August 12, 1972, and charged with possession of cocaine. After several continuances at his request, he was indicted on May 20, 1973, in the circuit court for Cook County, Illinois, for possession of cocaine. From June 6, 1973, to January 25, 1975, the trial of his case was continued 37 times, 21 times at the request of the petitioner. As will be noted in this opinion, many more adjournments of the trial date subsequently occurred. In addition, the petitioner twice moved for the substitution of judges; both motions were granted.
On January 23, 1975, the petitioner's case came before Judge Saul A. Epton, who set the matter for trial on February 26, 1975. The trial was subsequently rescheduled several more times to accommodate the petitioner's counsel, Mr. R. Eugene Pincham. Finally, on October 8, 1976, over a year and a half from the February trial date, Judge Epton admonished an associate of Mr. Pincham that the trial would begin on October 13, 1976, and counsel should be ready for trial. Trial did not begin on October 13; it was instead rescheduled several more times to accommodate Mr. Pincham. On November 5, 1976, when the case was called for trial, Mr. Pincham appeared before Judge Epton to inform the judge that he was engaged in another trial and could not proceed until the following week. Judge Epton directed Mr. Pincham to report directly to him when the other trial was completed so that the petitioner's trial could commence promptly.
The petitioner's case was called daily the following week, but the petitioner's counsel was unavailable. On Monday, November 15, an associate of Mr. Pincham appeared before Judge Epton and informed the judge that although Mr. Pincham had completed his other trial, he was unavailable to try the petitioner's case because he had instead commenced yet another trial in federal court. Judge Epton refused to grant another continuance and asked the associate to handle the defense. The associate refused to proceed, however, and left the courtroom.
The following day, two associates of Mr. Pincham presented a request for leave to file the appearance of a colleague of Mr. Pincham, Mr. Sam Adam, on behalf of the petitioner. Mr. Adam was not present, nor was he ready to proceed with the petitioner's case. Instead, he conditioned his appearance on the judge granting a thirty day continuance. Judge Epton refused Mr. Adam leave to appear and continued the case to the following day.
On November 17, two associates of Mr. Adam appeared; neither was ready to proceed with trial. Judge Epton then presented Mr. Spurlark with a choice:
"You can represent yourself in this case, or you can have a lawyer of your own choosing, or I am going to appoint Mr. Cornelius Toole to represent you." R. 118-119.
The petitioner replied that he chose as his attorney either Mr. Pincham or Mr. Adam. Judge Epton rejected these choices since neither attorney was available to proceed with the trial. Since the petitioner was unwilling to represent himself, the judge appointed Mr. Toole and set the case for trial on that Friday, November 19, 1976. On that day, Mr. Toole requested a continuance until the following Monday so that he could further review the file. The motion for a continuance was denied, but once the jury was selected, the proceedings were suspended for the day.
Prior to the start of trial on Monday, November 22, attorneys Pincham and Adam appeared before Judge Epton and filed a motion for substitution of judges. The motion alleged actual prejudice on the part of Judge Epton. He denied the motion, terming it a dilatory tactic and untimely. At the conference, the petitioner again asked to be represented by either Mr. Pincham or Mr. Adam. The request was denied, and the case proceeded to trial.
At trial, five Chicago police officers testified. Relying on an informant's tip, they had obtained a search warrant for an apartment. Four of the officers then went to the apartment building and observed the petitioner entering the building. When the officers gained entry to the apartment in question, they found the petitioner in a bedroom next to a table piled with drug paraphernalia and with what later proved to be cocaine having a street value of $250,000. The jury found the petitioner guilty of possession of cocaine.
The petitioner appeared before Judge Epton for sentencing on December 13, 1976. At sentencing, Mr. Adam was present and sought leave to appear on behalf of the petitioner and to participate in the proceedings. Mr. Toole was also present. Judge Epton denied Mr. Adam leave to appear and sentenced the petitioner to imprisonment for a term of fifteen to thirty years. The petitioner's conviction was affirmed on appeal. People v. Spurlark, 67 Ill.App.3d 186, 23 Ill.Dec. 860, 384 N.E.2d 767 (1st Dist. 1978).
The petitioner concedes that "this case has a sordid history of continuances and delays at the trial level." However, the petitioner contends that the fault did not lie with him, for on every occasion when the case was called, he was present. He argues that Judge Epton punished him because of irritation with the petitioner's counsel, even though the petitioner was not responsible for his attorneys' actions. The petitioner concludes that instead of forcing him to ...