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April 14, 1970

UNITED STATES of America ex rel. James D. ANDERS
Alfred T. RUNDLE, Superintendent State Correctional Institution, Graterford, Pennsylvania

John Morgan Davis, District Judge.

The opinion of the court was delivered by: DAVIS

JOHN MORGAN DAVIS, District Judge.

 Relator seeks Federal Habeas Corpus relief alleging a denial of his right to counsel and in the alternative a denial of his right to effective assistance of counsel. On October 16, 1965, relator was arrested by a stake-out team, inside of a warehouse in Berks County. He was charged with burglary and after retaining private counsel he was brought to trial on March 24, 1966.

 Relator pleaded guilty at this trial. However, on April 29, 1966, he was permitted to withdraw his guilty plea. He was again brought to trial on June 23, 1966. At this time, he was represented by Emmanuel Dimitriou, Esquire, of the Public Defenders Office. At the commencement of the proceedings on the second day of this trial, the following discussion took place between the court and Mr. Dimitriou. Also present were Leonard J. Gajewski, Esquire, and defendant Anders.

If it please the court, I called this conference for the purpose which I made clear to the court yesterday morning before the beginning of the trial in this case, that I wanted Mr. Anders to state for the record whether I was to conduct the trial as his attorney or whether he was going to conduct the trial and I was going to sit merely in an advisory capacity, at which time I would insist that any advice I gave him would be part of the record. At that time, Mr. Anders indicated that he would let me conduct the trial to the best of my ability. However, since that time, and specifically with reference to this morning, it would appear that he is not willing to follow my advice or to allow me to conduct the trial as I see fit. If I'm not going to be able to do that, and be responsible for my own decisions, then I would ask the court to allow me to withdraw or to ask Mr. Anders whether he wants to conduct the trial in his own behalf from this point forward. I will still be available to sit if he wants my advice. But again, I would insist that any advice I give him will be part of the record. I don't want to be in the position where my client is conducting a trial in which I'm supposed to be the attorney and for which I'm going to be responsible at a later time. Now, that's the purpose of this conference. I want Mr. Anders to make it very clear as to what he wants to do. I thought we had it clear yesterday, but apparently we didn't.
[June 23, 1966 N.T.p. 22].

 This statement of Mr. Dimitriou was followed by a long colloquy between the court and defendant Anders, running some fifteen pages in the trial record. Mr. Anders requested certain notes of testimony of his first trial. The Court agreed to furnish him with these notes of testimony. However, in view of the time factor involved it was agreed that a juror would be withdrawn and the case would be continued until the September term. It is significant to note that on page 30 of the Notes of Testimony of the June 23, 1966 trial, Mr. Anders stated "I'll try to make the bail and get my own attorney. It would be better." On page 37 and 38 of the same transcript the court stated: "Then you will agree to the withdrawal of a juror so that this case can be declared a mistrial and continued until September?

MR. ANDERS: Ssure. I don't care how you do it.
MR. ANDERS: Your Honor, if I make bail, I'll get me a lawyer. I'll get a lawyer, you can believe that.
Relator's third trial commenced September 19, 1966. He was represented by Clement Cassidy, Esquire, of the Public Defender's Office. At the start of this third trial, the following colloquy took place between Mr. Cassidy and the Court.
THE COURT: Have you any statement that you wish to make to the court before we proceed with selecting the jury, Mr. Cassidy?
MR. CASSIDY: Yes, I do, Your Honor. This is somewhat unusual, inasmuch as the defendant wishes to conduct his own trial. I have no objection to this, if the court has no objection. As I understand my position in court today, by the side of the defendant, it is merely to advise him as he tries his own case as counsel for himself. I discussed the matter of the dangers, and perhaps the benefits of this manner of proceeding, and he understands this, Your Honor. From my conversation with the defendant, I ...

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