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June 15, 1964

Bland WILLIAMS, Petitioner,
STATE OF NEW JERSEY, Howard D. Yeager, Warden, New Jersey State Prison, Respondents

The opinion of the court was delivered by: WORTENDYKE

Bland Williams was convicted in the Essex County Court (New Jersey) of murder in the first degree, with a recommendation of life imprisonment, to which he was duly sentenced. He appealed his conviction to the New Jersey Supreme Court on several grounds, including ineffective representation by counsel, the sole ground he urges here. That Court unanimously affirmed the conviction, State v. Williams, 1963, 39 N.J. 471, 189 A.2d 193. Thereafter Williams sought a writ of certiorari from the Supreme Court of the United States, which was denied, 1963, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075. *fn1"

The indictment upon which the present petitioner was convicted was returned by the grand jury in and for the County of Middlesex, New Jersey, in which County petitioner and other alleged participants in the murder were tried together in 1957. Upon that trial, petitioner was convicted of murder in the first degree and sentenced to death. He appealed that conviction to the New Jersey Supreme Court, which reversed, State v. Butler, 1958, 27 N.J. 560, 143 A.2d 530. Following remand upon reversal, petitioner was again brought to trial in the Middlesex County Court, and during that trial, he sought and was granted leave to withdraw his plea of not guilty and to enter a plea of non vult to second degree murder. Upon the acceptance of the latter plea, petitioner was sentenced to ten to fifteen years imprisonment. Some time thereafter, petitioner, through the assigned attorney of whose conduct he presently complains, successfully applied to the Middlesex County Court for leave to withdraw his plea of non vult to second degree murder, upon the claim that it had not been voluntarily and understandingly made. The motion to withdraw the non vult plea was granted, the judgment of conviction and sentence imposed thereon were vacated, a plea of not guilty was re-entered, and Williams went to trial on June 12, 1961, on the original indictment, represented by the same assigned counsel who had represented him on the motion to withdraw the plea. The last trial was held in Essex County as a result of the success of assigned counsel in applying to the Middlesex County Court for a change of venue. From his last conviction of murder in the first degree with the recommendation of life imprisonment, petitioner appealed to the New Jersey Supreme Court, through other assigned counsel.

 In its opinion, the New Jersey Supreme Court points out (39 N.J. 471, 476, 189 A.2d 193) that the appellant-defendant admitted in his brief that the testimony against him in the case was, in all essential respects, the same as that summarized by the same Court in Williams' prior appeals from his former convictions, 27 N.J. 560, 143 A.2d 530 and 32 N.J. 166, 160 A.2d 8. The principal witness for the State on all of the trials of the participants in the charged offense was an accomplice, John Coleman. His testimony, as summarized in 39 N.J. at p. 476, 189 A.2d 193, disclosed that, in the evening of July 19, 1956, Coleman met Williams and his brother, Eugene, with Butler and Winbush, at the Little Cotton Club, a tavern in Carteret, New Jersey. *fn2" They entered a 1949 Buick automobile operated by Bland Williams, shortly before midnight, and the five of them drove from the Little Cotton Club to Koppers Koke Company's office building in Port Reading, Middlesex County, where Coleman and Winbush were stationed as look-outs by Butler, who was in charge, while Butler and the Williams brothers forced their way into the building. As the watchman (Quackenbush), alerted by the noise, approached, Butler and the Williams brothers came out of the building. Butler beat the watchman with a pickaxe, while the Williams brothers attacked him from the front, until he fell and died. Butler and the Williams brothers next dragged a safe out of the office and unsuccessfully attempted to force it open. Butler then blew up the safe with nitroglycerin, which he had brought with him, and Coleman ran from the scene. Bland Williams, the present applicant for the writ, denied any connection with the robbery and killing. Although he admitted having seen Coleman on occasion, Bland Williams testified that he did not 'know' him and that on July 19, 1956 he had never left the city of Perth Amboy, but had spent the evening at a tavern there until about midnight, when he went directly to his room in the same city and slept through the night. He was arrested on August 28, 1956 at his place of employment in Woodbridge.

 The sole ground upon which the applicant bases his present petition for a writ of habeas corpus is to be found in his contention that, at his most recent trial, he was deprived of a fair and impartial trial 'due to the ineffectiveness of trial counsel.' He was represented by Alex Eber, Esq., an eminent and experienced member of the New Jersey Bar for 30 years, and formerly Prosecutor of Middlesex County, New Jersey. There was also assigned to defendant's representation, as Mr. Eber's assistant, Henry Spritzer, Esq., of the same Bar, and to both of these attorneys were made available the services of a competent investigator to aid them in the preparation of the defense.

 Petitioner's contention here is the same as one of several which he raised on the appeal of his conviction to the New Jersey Supreme Court, i.e., that the conduct of his assigned counsel at the last trial deprived petitioner of due process under the Fourteenth Amendment. The specific allegations of that claim are fully detailed in the petitioner's brief on appeal to the New Jersey Supreme Court (prepared by another assigned attorney) and in a statement by petitioner which was filed, in typescript form, as a supplement to the record on that appeal. Copies of both the brief and the statement were furnished to this Court by the Prosecutor of Middlesex County, and they have been considered by the Court as part of petitioner's instant application. *fn3"

 This Court did not hold a hearing on petitioner's present application. As noted above, the Court obtained the trial transcript and copies of the brief filed on behalf of petitioner and of his supplemental statement (see footnote 3, supra), both of which were filed on his appeal to the Supreme Court of New Jersey. According to petitioner's appellate brief and supplemental statement, testimony on the prior trial was given by thirty-one witnesses. Five experts testified as to Coleman's unreliability; nine witnesses testified as to his unreliability or his prior inconsistent statements; and seventeen witnesses contradicted him as to particular factual statements made by him. The supplemental statement (quoted in part in footnote 3) discloses that petitioner asked his assigned counsel at the last trial, to get all these witnesses and put them on the stand. Petitioner says that his counsel had previously told him that he had not decided whether he was going to use these witnesses to attack Coleman; that he was planning to destroy Coleman before the jury by cross-examination; and that he was debating whether putting on these witnesses would impress the jury or take their minds off the picture they received of Coleman on his cross-examination. In response to petitioner's inquiry at the trial, his attorney informed him that he had decided not to call the suggested witnesses. Petitioner says that the attorney stated, in response to petitioner's objections, that he was the lawyer; that he would carry on the trial as he saw fit; that petitioner could insist on these witnesses being called, but, if so, the attorney would withdraw from the case. Petitioner did not ask counsel to withdraw, but threatened that, if convicted, he would use counsel's decision as a basis for a new trial based on inadequate representation.

 The standard of due process for measuring the effectiveness of representation by assigned counsel in a State court prosecution, has been expressed as follows: "Absence of effective representation of counsel * * * must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe and correct it," In re Ernst's Petition, 3 Cir. 1961, 294 F.2d 556, 558, cert. den. 1961, 368 U.S. 917, 82 S. Ct. 198, 7 L. Ed. 2d 132, quoting from Diggs v. Welch, 1945, 80 U.S.App.D.C. 5, 148 F.2d 667; United States v. Cariola, 3 Cir. 1963, 323 F.2d 180, 185, footnote 4. Cf. United States ex rel. Darcy v. Handy, 3 Cir. 1953, 203 F.2d 407, cert. den. Maroney v. United States ex rel. Darcy, 1953, 346 U.S. 865, 74 S. Ct. 103, 98 L. Ed. 375; Mitchell v. United States, 1958, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. den. 1958, 358 U.S. 850, 79 S. Ct. 81, 3 L. Ed. 2d 86. Specifically, in a challenge to the effectiveness of assigned counsel's conduct of the trial, his actions or inactions do not constitute a lack of effective representation if they '* * * could well have been part of a rational plan of a competent lawyer trying to do his best for his client' In re Ernst's Petition, supra, 294 F.2d p. 560. That conduct is not to be judged in the light of the verdict which was actually rendered, but from the viewpoint of the attorney while the trial was actually going on. Any trial may involve misjudgment in strategy by even the most competent of counsel, and an adverse verdict should not be the occasion for speculation on whether a variation in strategy would have changed the result, unless the choice adopted could not be said to have been part of such a rational plan of action by competent counsel. Mitchell v. United States, supra, 259 F.2d 789-793. *fn5"

 The attorney, of whose conduct petitioner complains to this court, appeared for petitioner in the Middlesex County Court after petitioner had retracted his plea of guilty of murder in the first degree and had entered a plea of non vult to murder in the second degree. The motion to retract and the proffer of the plea of non vult was made in behalf of the present petitioner by his then assigned attorney, Russell Fleming, Esq., on February 3, 1959. Mr. Fleming had represented Bland Williams on his first trial and upon his successful appeal from conviction of first degree murder therein. Mr. Fleming, to the knowledge of this Court, is an experienced, reputable member of the New Jersey Bar, to which he was admitted in the year 1918.

 Mr. Eber, moreover, participated actively in behalf of petitioner at the pretrial conference of March 27, 1961, which resulted in the order of that date, reciting that petitioner agreed that he would not question the competency of John Coleman as a prospective witness, if called by the State, upon the approaching new trial, which was fixed therein to commence on April 17, 1961. At the conclusion of that trial, petitioner was again convicted of first degree murder. Following the judgment of conviction, Mr. Eber moved for a new trial in behalf of the petitioner, urging ten separate grounds therefor. The motion was denied.

 This Court has obtained the trial transcripts of all of the trials in which petitioner has been a party upon the indictment charging him with first degree murder; they aggregate the stupendous total of almost 9500 pages. Assuming that this Court were able to find the time to read all the testimony of the witnesses whom the petitioner now claims should have been called on the last trial, such an Herculean effort would not enable this Court to determine whether Mr. Eber, petitioner's trial counsel, was justified in the strategy which he employed by the situation confronting him. Even accepting as a fact that the many witnesses who testified previously would have testified in petitioner's most recent trial as he now claims they would have, a perusal of the 289 pages embodying the cross-examination of Coleman by Mr. Eber, indicates conclusively that petitioner's attorney achieved by that cross-examination alone, a result which, in the judgment of this writer, could be considered by the jury as completely effective to discredit Coleman.

 Mr. Eber could reasonably have concluded that the effect obtained on his cross-examination would have been vitiated by putting on an additional thirty-one witnesses during the defendant's case in an already protracted trial. And assuming those witnesses would have testified as petitioner says they would have, Mr. Eber could also have concluded that they would not have added much more to what he had already elicited from Coleman on cross-examination. I must, therefore, conclude that Mr. Eber could have reasonably concluded, as part of a rational plan of defense, that it would be better strategy to rely solely on his cross-examination, and not call the thirty-one additional witnesses. ...

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