Conviction affirmed in 1981 Brink's case

Rockland County was the site of one of the most notorious hold-ups in American history: the 1981 Brink's robbery by leftist radicals which resulted in the fatal shootings of two police officers. The latest (and perhaps final) chapter in that case turned up today in the Second Circuit, which reversed the grant of Habeas Corpus to defendant Judith Clark, who was convicted for murder and robbery in connection with this crime nearly 30 years ago.

The case is Clark v. Perez, issued on January 3, 2008. As summarized by the Court of Appeals (Jacobs, Leval and Sotomayor), Clark represented herself pro se at trial and did not file an appeal from her conviction. During trial, for political reasons, Clark disrupted the trial and the judge made her sit in another room at the courthouse during the proceedings, advising that she could return to the courtroom to participate if she behaved herself.

In a highly-publicized decision, the Federal trial court granted Clark's petition for Habeas Corpus in 2005, overturning the conviction and granting her a new trial because Clark was really claiming ineffective assistance of counsel, which does not require a direct criminal appeal. Not true, said the Second Circuit; the correct analysis is that Clark could have appealed from her conviction because her claim is based on facts visible on the face of the trial record and she failed to appeal her conviction in protest of what she regarded as an unfair and biased court system. Since Clark did not fully exhaust her remedies in State court in failing to bring an appeal from her conviction, she cannot file a Habeas Corpus petition in Federal court.

The Second Circuit could still affirm the grant of Clark's Habeas petition "if [she]can first demonstrate either cause and actual prejudice, or that [s]he is actually innocent." That's not the case here. The Court of Appeals summarized Clark's argument as follows:

Clark argues that the trial court violated her Sixth Amendment right to counsel by (1) allowing her to represent herself when it was clear that she would not abide by courtroom protocol and (2) allowing her to represent herself without stand-by counsel after she absented herself from the courtroom as a political protest against the trial court’s legitimacy.

While the district court accepted Clark’s argument, unfortunately for Clark, the Second Circuit rejected an identical claim in Torres v. United States, 140 F.3d 392 (2d Cir. 1998). In sum, the Second Circuit reasoned: "there was no constitutional violation because Clark knowingly and intelligently waived her right to counsel, unequivocally asserted her right to self-representation,
made a conscious strategic choice to waive her right to be present in the courtroom as part of a de facto political protest defense, and was afforded the opportunity to return whenever she chose." As Clark made tactical decisions to represent herself at trial as a self-proclaimed "freedom fighter," the trial court did not violate her Sixth Amendment right to counsel.